Fatwa ID: 01999
Answered by Mufti Mohammed Tosir Miah
A baby girl was abandon by the family. The rich widow's sister wanted to adopt the girl but her husband refused. Then the widow took the responsibility of the girl. Girl's mother died, father got married again and does not have any contact with daughter and he never spends anything for the girl.
So, the rich widow wants to give that girl a flat and a shop. So that when she dies , that girl does not become helpless.
Can she mention it in her will / testament or she should give her as gift during her lifetime?
Literally wasiyyah means an order to do something, either in the lifetime of the maker of the wasiyyah or after his death. But in commonly accepted usage, it refers to what must be done after death. It can be translated as the Will or bequest.
According to the consensus of the Muslim Ummah it is not obligatory on the dying person to necessarily make a Will in favour of relatives who have no defined shares in the inheritance. The obligatory character of a wasiyyah in their favour is abrogated. The making of a Will in favour of such relatives is only a desired (mustuhab) act.
Furthermore, it is not permissible to make a Will for an inheritor.
It is narrated by Saaiduna Ibn Abbas that the Prophet of Allah 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 has Himself fixed the shares of the inheritors; therefore the executor need not make a Will.
From the aforementioned discussion, we can deduce that making a Will to cover relatives whose shares have been fixed by the Holy Quran is not permissible without the permission of other inheritors. Relatives who do not hold a legal share in the inheritance can be bequeathed up to one third of the total. (Maariful Quran p.450-p.452 v.1)
With regards to your question, it will be permissible for the Muslim sister to bequeath the shop and a flat to this girl, but the value of these two items must be limited to up to one third of her total property. This is based on the following hadith, narrated by Saad bin Abu Waqqas that the Prophet of Allah came visiting me while I was (sick) in Makkah, (‘Amir the sub-narrator said, and he disliked to die in the land, from where he had already migrated). He the Prophet of Allah Sallallahu Alahi Wasalam said, “May Allah bestow His Mercy on Ibn (Sad bin Khaula).” I said, “Oprophet of Allah! May I will all my property (in charity)?” He said, “No.” I said, “Then may I will half of it?” He said, “No”. I said, “One third?” He said: “Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah’s sake will be considered as a charitable deed even the handful of food you put in your wife’s mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you.” At that time Saad bin Abu Waqqas had only one daughter.” (Sahih Bukhari p.383 v.1)
However, if she decides to give the shop or flat during her lifetime then it will be considered a gift and it will not be limited to one third of her total property.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham