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Fatwa CenterDivision of inheritance among an 'epileptic' son and 3 daughters
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 1 - Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 3 - Additional information: I am the second daughter for my father, I would like to inform you that my brother is a fits (epilipsy) patient and that he also is not so clever. He is unemployed and got married just three months before my father's death. My father has left one house measuring 30 x 50 ft and a residential plot measuring 40 x 60 ft. Now, my brother's wife is demanding the house, stating that my father had told them that the house is for his son. She married him just to get house. How should we distribute the property, and how should the property share of my brother be secured. Please, I request need a fatwa regarding this.
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 
is His slave and Messenger.
The son of the deceased has no right to appropriate the house exclusively for himself apart from the rest of the heirs, whether he is sick or in good health, and whether he is married or not married. Even if it is proven that the deceased had made a will to leave the house to him, then this will is not binding because it is a will for an heir and it cannot be effective unless all the heirs approve of it. The Prophet said, “Verily, Allaah has given every rightful person his right, so there is no bequest for an heir.” [Abu Daawood, Ibn Maajah, At-Tirmithi and An-Nasaa’i] Ad-Daaraqutni reported it with an addition “…unless all the heirs approve of it.”
Also, the will of leaving the house for the son is not effective just with his claim or his wife’s claim; rather, there must be evidence for his claim or that all the heirs believe his claim.
To conclude, the house is the right of all the heirs and the son is only entitled to his legitimate right in the inheritance. All what the deceased had left, such as land, house, money and so forth should be divided between the heirs according to the Sharee'ah, and each heir is entitled to every inch in it according to his legitimate share in the inheritance.
If the deceased did not leave any other heirs except his son and daughters, then his inheritance shall be divided by ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male twice the share of the female, as Allaah says (what means): {Allaah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]
Therefore, the inheritance should be divided into five shares, the son gets two shares, and each daughter gets one share. So the son gets two shares in the house and two shares in the land, and each daughter gets one share in the house and one share in the land.
As regards how to protect the share of your brother from the inheritance, if your brother is rational and sound and he is able to manage his affairs correctly, then he should possess his share and manage it, and he is not in need of someone who would preserve it for him. His illness, epilepsy, is not an impediment as long as he is conscious. However, if he is foolish and irrational and is unable to manage his share, then his case should be taken to an Islamic court so that it would appoint a guardian for him, and if there is no Islamic court, then his case should be taken to an Islamic Center that is in charge of the affairs of the Muslims so that it would appoint a guardian for him, if possible.
Allaah knows best.
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