A bequest to a non-heir is valid
29-12-2014 | IslamWeb
Question:
My husband comes from a family of three brothers and one sister. His elder brother passed away before his parents, however, his father wanted to give the brother's wife and children his son's share. India, they follow the Islamic law. After my husband's parents passed away, it was divided as per his father's wishes and for this my husband was happy with at that time. With their share my husband's younger brother bought them three homes, one they live in and two they receive rent. His sister in law also has inheritance of a home from her parents. His niece got married to a wealthy man and his nephew hold a degree in computer science and MBA, thus makes good money. With my husband's inheritance his brother bought a land that is not of any use to us. My husband is a cancer patient and we are living in welfare in the US. We can't even maintain small things and are in help from others. His family knows about what we go through but they do not care. They don't call to see how he is doing. Is it permissible to take his share that he thought of as his brother's from his sister in law? Will Allah SWT be angry with us. Please answer our question, Jazakallahu Khiran.
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.
We understood from the question that your husband's father made a bequest for his dead son's family to take his share of his father's estate (which he would have been entitled to had he outlived his father). If this is the case, then this is a valid and binding bequest because it is made to non-heirs. The deceased son's wife is not among the heirs of the father and his children are excluded by the presence of the deceased's living son as underlined in Fatwa 90126. Since the dead son's wife and children are not among the heirs, the bequest made to them is valid and binding.
Ibn Qudaamah 
said: "If the deceased made a bequest for a non-heir to take an equal share to that of a specific heir, then the beneficiary of the bequest is entitled to that share and it should be deducted before the division of the estate (among the heirs). This is the opinion of the majority of the scholars and was adopted by Abu Haneefah and Ash-Shaafi‘i." [Al-Mughni]
However, the bequest should not be executed if it exceeds one-third of the estate.
It should be highlighted, though, that such cases are rather critical and complex, requiring careful investigation. They should be referred to competent scholars who should be consulted directly and informed of a detailed account of the situation with no ambiguity so that they can identify the heirs and whether the bequest exceeds one-third of the estate or not.
Lastly, we implore Allaah to bless your husband with recovery.
Allaah Knows best.