PARENTS WILL

17 Oct 2018 Ref-No#: 1081

My grand father (maternal) has 3 daughters and 1 son, he recently received funds from the sold property of his own father, most of his brothers have already distributed these funds among his daughters and sons, but my grand father claim is that he will not distribute this during his life and only be known by his will after his death, further his intention is that he will only distribute his self owned property and property from his ancestors among only his 1 son and 1 daughters whereas his claim is that my mother and other aunt are self sufficient so he will ignore them.

Appreciate your advise about this matter, is he correct that property will can only be declared after his death ? and can he ignore my mother and another aunt with his claim that since they are self sufficient he will not give anything from his self owned and ancestors earned property ?

Answer

Wa’alaykum as Salam wa rahmatullahi wa barakatuhu,

A person only owns his wealth until the time of his death. As soon as he passes away, he looses ownership of all his assets; and his estate has to be distributed according to what Allah Ta’ala has ordained. Allah Ta’ala has explained how wealth should be distributed after a person passes away, and no one has a right to amend these shares or deprive anyone of their rights.

Even if a heir is rich or self sufficient, a deceased has no authority to deprive them of their alloted shares. Hence, even if your grandfather states in his will that his two daughters (your mom and aunt) should not get anything, that clause will be null and your mom and aunt will still be deserving of their shares.

Furhermore, a person cannot make a Wassiyyah (bequest) for an heir who has been stipulated in Shariah. Thus, if your dad makes a bequest for his one son and daughter to get more, that clause will not be valid.

Even if your grandfather decides to distribute his wealth whilst he is alive; he will have to maintain equality between his children.

References

تِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ ؛ وَمَن يَعْصِ اللَّهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ (سورة النساء 13 – 14)

(ولا تجوز الوصية لوارث) لقوله صلى الله عليه وسلم: “إن الله قد أعطى كل ذي حق حقه؛ فلا وصية لوارث”.

ويعتبر كونه وارثاً عند الموت لا عند الوصية: فمن كان وارثاً عند الوصية غير وارث عند الموت صحت له الوصية، وإن كان بالعكس لم تصح (اللباب في شرح الكتاب – 367/ 5)

م: (ولأنه) ش: أي ولأن الزائد على الثلث م: (حق الورثة، وهذا) ش: توضيح لما قبله م: (لأنه انعقد سبب الزوال إليهم) ش: أي انعقد سبب زوال الملك عنه إلى الورثة؛ لأن المرض سبب الموت   (البناية شرح الهداية – 13/ 391)