There is one grandfather he has 3 wives one with non talak and 2 he had given talak,the one with non talak has given birth to yunus and other 2 , 1 had given birth to a baby girl and other without any baby , all the 3 wives had died and grandfather had died on 2006 and i am the son of yunus i have 3 brothers and 2 sisters my name is hashim and my father died in 1996 (that is before my grandfather)the question is before the death of my grandfather he had wassiyated for his 1 lakh rupees and a house valued for 4.5 lakh rupees ,he wassiyated that my above property and cash has to be given to us that is to only four brothers (that is his grandsons i and my brothers but no sisters )now finally i want to know whether his wassiyat is according to islam or not and as u know the complexity is of father's death before grandfather . at preset we 6 brothers and sisters are alive my mother is also alive my soteli phuphi is also alive(but i don't know where she is staying} pls guide us according to islamic values
In the name of Allah, the most Beneficent, the most Merciful.
Answer
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 Radiallahu Anhu that the Prophet of Allah Sallallahu Alahi Wasalam 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 (SWA) 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 grandfather to bequeath up to one third of his property to his grandsons (and not to the granddaughters). (Kifayatul Mufti p.410 v.8 & Aapke Masaail p.393 v.6)
According to the laws of inheritance, the grandchildren are not entitled (mahjuub) to receive anything from the inheritance because of the sons of the deceased will be an asabah thus, preventing the grandsons receiving anything from the share.
Regarding the point you made in the question as the grandsons and grand daughters are not the heirs one can make a wasiyyah for either one of them. (Kifayatul Mufti p.380 v.8)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham
