Fatwa ID: 01348
Answered by Mufti Mohammed Tosir Miah
Father writing a Will for his children
In the name of Allah, the most Beneficent, the most Merciful.
Writing a will is very important ensuring that upon death ones wealth and asset are distributed according to Islamic law.
Saaiduna Abdullah Ibn Umar narrates that the Prophet of Allah 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:
- The payment of funeral and burial expenses
- Payment of all debts owed to other people
- 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.
- The distribution of the remaining wealth among the heirs according to the laws of the Shariah in consultation with a Muslim scholar or Mufti.
- 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 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 inheritance. (Maariful Quran p.450-p.452 v.1)
The only instance whereby it will be permissible for you to have full ownership of the house is if your father were to gift the property to your mother and his two sons before he passed away.
In the Hanafi Fiqh the handing over of an item by the Wahib (giver) and receiving by the other (Mawhuub Lahu) is a necessary condition for the gift to be considered complete. For example, if someone gives a gift, which can be transferred like clothes, books etc. then the possession by the other is essential. However, if the gift cannot be moved or transferred like a piece of land or a house then the handing over of the deeds or the keys will be sufficient. Here physical possession will not be necessary for the gift to be considered complete. (Raddul Muhtar p.490 v.8)
Moreover, if the giver says some words or sentences, which clearly, unambiguously indicate to a gift, then that gift will become valid. Later when the giver hands over the gift or for non-transferable goods, keys or the deeds then the gift will become complete. (Raddul Muhtar p.490 v.8)
If your father has said to your mother or to his two sons “I have gifted this property to you” in a clear and unambiguous manner, then the gift will only be considered valid if this statement can be testified by two men or one man and two women. (Hidayah p.284 v.3)
The witnesses have to be individuals besides yourselves, mother and elder sister. The reason being that parents cannot testify on behalf of their children nor can children testify of behalf of their parents. However, brothers and sisters may testify on behalf of each other. Your elder sisters testimony can be valid for yourselves but not on behalf of your mother. (Mukhtasar Quduuri p.218)
If two men or one man and two women can be found who testify that your father had given the property to you as a gift then the property will belong to yourselves and your mother. Otherwise, the property will be distributed amongst all siblings.
Finally, you mention that legally your father owned 50% of the property and the other 50% is held under the elder sons name. Moreover, your father purchased the remaining 50% with his own money but due to extenuating circumstances it remained under the elder sons name. From an Islamic point of view, the whole property is in the ownership of the father. Therefore, if witnesses are found, the whole property will belong to yourselves and your mother. Otherwise, as mentioned previously, the property will be distributed amongst all the brothers and sisters. (Imdadul Mufteen p.700)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham