Fatwa ID: 09104
Answered by Mufti Sakib Shadman
Question:
Assalamu Alaikum
I seek guidance regarding the correct Islamic approach to distributing an estate where there is a potential liability involving one of the heirs.
Background:
The deceased was a widowed Muslim female, who passed away leaving behind six children; four daughters and two sons, all of whom are above the age of 18.
During her lifetime, she suffered from depression and bipolar disorder, for which she was medicated. However, it is important to clarify that at the time of the events described below, she had full mental capacity and was able to make independent decisions.
In later years, her condition deteriorated, further, including losing mobility.
Chronology of events:
– Approximately 7-9 years prior to her death, the deceased resided with her youngest son in a housing association property, which was in her name.
– In or around 2019, her health deteriorated and she was admitted to hospital.
– At the time, the youngest son informed the housing association that she no longer resided at the property and was effectively homeless.
– After discharge, the deceased went to live with her daughter, and this arrangement was formally notified to the relevant authorities.
– For a short period the youngest son remained in sole occupation of the property, failed to pay rent and as a result, rent arrears accrued totalling approximately £4.000.00.
– The housing association subsequently initiated legal proceedings against the deceased for these arrears.
– Following the initial hearing:
a. The deceased paid the £4.000.00 personally to avoid further litigation.
b. It was understood amongst the family members that the youngest son
was responsible for the arrears.
c. The youngest son signed a document confirming that he would no longer reside at the property.
d. By all accounts the deceased maintained that this sum was to be paid/repaid by the youngest son, as he had been the sole occupier during that period.
Current position:
– The deceased passed away on 8th April 2026.
– There is no indication that she forgave or waived this amount during her lifetime.
– The son in question is also an heir to the estate.
Points of concern:
– Whether the £4,000.00 constitutes a binding debt owed to the deceased estate.
– Whether it could alternatively be regarded as financial assistance or support, given the parent and child relationship.
– Whether this amount is to be accounted for prior to distribution of inheritance.
– Whether failing to do so would result in injustice to the other heirs.
Questions:
– In light of the above facts, does the £4,000.00 constitute a binding debt owed by the son to the deceased estate, or could it be regarded as financial assistance or support given the parent child relationship?
– If it is classified as a debt, is it obligatory upon the executor to recover or account for this amount before distributing the inheritance?
– Is it permissible to deduct this amount directly from the son’s share of the inheritance, or must it be recovered separately with his agreement?
– In the event this amount constitutes a binding debt and it is permissible to deduct from the son’s share, what would be the most appropriate course of action in order to preserve family ties?
a. Would it be better to deduct the amount directly from his share?
b. Or to first inform him of the outstanding debt and seek resolution, given that direct deduction may lead to conflict and breaking of ties between family members.
– What is the correct Islamic course of action in this situation to ensure compliance with Islamic law whilst also maintaining family unity?
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
Since the youngest son accrued the rent arrears while he was the sole occupier, and the mother (now deceased) paid the amount specifically to settle a liability he caused, the default position is that this debt is binding upon the son. This process is known as (Hawalah), in which the debt owed is transferred from one creditor (the court) to another (the mother) by mutual agreement, and the debtor (youngest son) does not need to consent for the transfer to be binding. [1]
However, this dispute could have been avoided if the debt agreements were evidenced in writing. In any case, the debt will be binding upon the son due to a valid Hawalah (debt transfer) occurring from the court to the mother.
To recover this debt while avoiding further family disputes, it is best to arrange a formal meeting between the heirs and the executor managing the estate. In this meeting, the executor may humbly offer the son a chance to pay off his debt. If he denies the debt, refuses or is unable to pay the debt, you may offer to recover this debt from his share of the inheritance. As a last resort, the executor has the authority to recover the 4000-pound debt from his share without his consent, and this process is known as Muqaassah (offsetting a debt). [2]
This solution may cause a rift within the family; hence, the other heirs may consider forgiving the debt. However, if they decide to pursue it, they may recover the 4,000-pound debt from his share of the inheritance before it is distributed. This ruling is from a Shar’i perspective; however, local laws may prevent the executor from forcibly recovering the debt, as no written evidence exists. Finally, if there are no other heirs (e.g. the deceased mother had no husband), then each son will receive 25% of the inheritance, and each daughter will receive 12.5%. [3]
Only Allah ﷻ knows best.
Written by Mufti Sakib Shadman
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
References:
[1]
(شُرِطَ لِصِحَّتِهَا رِضَا الْكُلِّ بِلَا خِلَافٍ إلَّا فِي الْأَوَّلِ) وَهُوَ الْمُحِيلُ فَلَا يُشْتَرَطُ عَلَى الْمُخْتَارِ شُرُنْبُلَالِيَّةٌ عَنْ الْمَوَاهِبِ.
ص341 – كتاب حاشية ابن عابدين رد المحتار ط الحلبي – كتاب الحوالة – المكتبة الشاملة
[2]
أولاً – المقاصة الجبرية وشروطها: المقاصة الجبرية: هي التي تحدث بنفسها بين دينين متماثلين جنساً وصفة وقدراً وحلولاً وتأجيلاً، ولا تتوقف على تراضي الطرفين ولا على طلب أحدهما. مثل أن يقترض شخص من آخر نقوداً أو شيئاً يثبت ديناً في الذمة كالمثليات، ثم يبيع المقترض لدائنه متاعاً بثمن معجل من جنس الدين الذي عليه، فتقع المقاصة بين هذين الدينين، بمجرد ثبوت الدين الثاني، جبراً على الطرفين، ولا تتوقف على تراضيهما ولا على طلب من أحدهما
وهي جائزة عند الحنفية والشافعية والحنابلة (الجمهور) (١) إذا تحققت الشروط وانتفت الموانع.
ص4419 – كتاب الفقه الإسلامي وأدلته للزحيلي – المقاصة الجبرية – المكتبة الشاملة
[3]
يُوصِيكُمُ ٱللَّهُ فِىٓ أَوْلَـٰدِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ ٱلْأُنثَيَيْنِ ١١
Surah Nisa (4:11)