Your indebted brother does not lose his right of inheritance
8-12-2010 | IslamWeb
Question:
I am the eldest female child of 3 children the others are males.Before my father passed away he left a will which I have a copy of leaving my brother and I 50% share each of his money. He disowned another brother as he borrowed a large sum of money from him without repaying him as he promised to do so and being asked many times and also because he caused him a lot of pain and misery. He also took a very large amount from me and has not repaid it even though he has the means to do so. After my father passed away I was informed by my cousin that my father wanted him to take him to withdraw his life savings from the bank for safe keeping and for him to pass them on to my brother and he did not want me or my disinherited brother to know about it. My brother also told me that my father had told him that he was leaving everything to him because he took care of him the most and provided for him financially even though he had his own money. My father came to visit me a couple of months before he passed away he never said anything to me at all. At the time of my fathers passing I told my cousin and my brother if that is what my father wanted I will give my inheritance to my brother...I have since had a lot of time to reflect and I am having second thoughts....I really dont know what to do.....should I keep my 50% share or should I take only a third and give my brother 2/3 or should I give my share to my brother. Please help me what is the Islamic solution to my dilema as I dont want to do anything to make Allah angry with me.
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 Islamic solution to your problem is that you divide amongst yourselves the inheritance of your father according to the Sharee’ah because any will that you claimed – even if it is confirmed – is a will for an heir; you are an heir to your father and your brother who claims that your father had made a will about the money for him is also an heir to your father. Indeed, a will to an heir is not effective unless all other heirs agree to it as the Prophet said: “Allaah has given everyone who has right what is due to him, so there is no will for an heir." [Ahmad, At-Tirmithi, Abu Daawood and Ibn Maajah] For more benefit on the ruling on a will for an heir, please refer to Fatwa 121128.
Besides, your brother about whom your father had made a will to prevent him from the inheritance also inherits, and it is not permissible to prevent him from his right to the inheritance. However, he should be asked to pay the debts that he owes to you and to your father. So, if he wishes, he may pay all his debts and then the inheritance will be divided according to the Sharee’ah. But, if he refuses to pay, then you have the right to deduct the debts that he owes to you and to his father from his share of the inheritance.
Finally, it should be noted that you must be certain that the debt the said son owed to your father was not settled, as it might be that the son was enabled to repent and repay the debt he owes to his father without your knowledge, and it might also be that your father had waived his debt that was due from your brother and so forth. So, if you are certain that your father died while being a creditor to his son, then you have the right to deduct what was already mentioned.
Allaah Knows best.