Mother making a Will for her children

Fatwa ID: 01956

Answered by Mufti Mohammed Tosir Miah

Question:

Assalamu-alaikam. My mother is a widow. She owns her own house, as left by my deceased father. We are 4 daughters, but we have no brother. Her parents are deceased. She has 3 sisters and 2 brothers. She would like to know how she should write her will, according to Shariah, regarding the house / personal possessions. Please advise.

Answer:

Bismillah

Writing a will is very important ensuring that upon death ones wealth and asset are distributed according to Islamic law.

Saaiduna Abdullah Ibn Umar raḍyAllāhu 'anhu (may Allāh be pleased with him) narrates that the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) has said “It is not befitting for a Muslim who has something to make a Will of, to stay for two nights without having his last Will and Testament written and kept ready with him”.  (Sahih Bukhari)

Making a Will does not mean one is allowed to distribute his wealth during his life.  He should stipulate in the Will that “upon my death, my executors will distribute my wealth according to the Shariah” and this will be conducted by a Muslim Scholar or Mufti.

The following should be stipulated in a Will:

  1. The payment of funeral and burial expenses
  2. Payment of all debts owed to other people
  3. Payment of any bequest (wasiyah) including unpaid Zakat or fidyah for missing salah or fasting.  However the condition is that it is only executed from one third of ones wealth.
  4. The distribution of the remaining wealth among the heirs according to the laws of the Shariah in consultation with a Muslim scholar or Mufti.
  5. Signing of the document by both the will maker and the relevant witnesses.

Moreover, it is not permissible to make a Will for an inheritor.

It is narrated by Saaiduna Ibn Abbas raḍyAllāhu 'anhu (may Allāh be pleased with him) that the Prophet of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) has said, “Allah has Himself given everyone, who has a right, his right.  So there is no will for any inheritor.”  (Sunan Tirmizi)

The reason being is that Allah subḥānahu wa ta'āla (glorified and exalted be He) has Himself fixed the shares of the inheritors; therefore the executor need not make a Will.

From the aforementioned discussion, we can derive that your mother would not be able to stipulate in her will the amount each heir will give, but instead leave the responsibility to her executors (which she should name in the document) who with the consultation of a scholar will distribute it Islamically after her death.

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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