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Fatwa CenterThe deceased’s bequest for his two sons is not binding
Question
Assalaamu ‘Alaykum; Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 2 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 6 - The will which the deceased left behind and that is related to his inheritance is : Sons will inherit everything - Additional information : My father died and bequeathed his estate in the U.K two his sons and all property and money in Pakistan to his sons. My brother although only 25 is refusing to his me my inheritance. my mother is still alive.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and messenger.
The deceased’s bequest which entails that the whole estate is to be given to his two sons excluding other heirs is not binding because it is a bequest made in favor of legal heirs. The Prophet, sallallaahu ‘alayhi wa sallam, said: “Allaah, The Exalted, has given every person who has rights his due (in the estate). No bequest should be made in favor of a legal heir.” [Abu Daawood, An-Nasaa'i, At-Tirmithi and Ibn Maajah] Ad-Daaraqutni 
cited the Hadeeth with an addition, “…unless other heirs approve it.”
If the other heirs do not give their consent regarding the deceased’s bequest, the estate should be divided among all the heirs entitled to inherit as per the Sharee'ah and in this case the sons are not entitled to get anything extra to their share of the estate (prescribed by the Sharee'ah).
In this case, if your mother was still married to your father when he passed away, she is considered among the eligible female heirs entitled to inherit as per the Sharee'ah and you should have included her in the list of the heirs; and she is entitled to one eighth of the estate. Thus, the estate should be divided into eighty shares; the deceased’s wife gets one-eighth of them (i.e. ten shares), each son gets fourteen shares, and each daughter gets seven shares.
However, if your father had divorced your mother and her ‘Iddah ended before his death, then she is not entitled to any share of his estate. In this case, the estate should be divided into ten shares; each son gets two shares and each daughter gets one share.
It is worth noting that the division of the inheritance is a serious and critical matter; it is not adequate to settle for seeking a Fatwa on the matter. Instead, you should refer the case to Sharee'ah-court for investigation. Perhaps other eligible heirs entitled to inherit would be discovered in the process. Moreover, perhaps the deceased has left a will or was liable to debts or other rights of which the heirs are not aware. It is well-known that the repayment of the debts and the liabilities should be given priority over the heirs’ right in the estate. Therefore, you should not distribute the estate without referring the case to Sharee'ah-court, if any, in order to preserve the interests of the living and the dead alike.
Allaah Knows best.
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