Parents must observe justice in their bequests to their children

16-11-2015 | IslamWeb

Question:

Dear brother, assalaamu alaykum wa rahmatullaahi wa barakaatuh. My parents have me and another daughter and son, so one son and two daughters. My father, while alive, gave my mother half of his wealth, that is, half of the house and cash, which all sums up to about £400k. A few days ago, he showed me his will for the inheritance, and it was divided as follows: my mother 12%, my brother 46%, me 21%, and my sister 21% However, I feel that we, the daughters, have been treated unfairly Islamically, as we will only get 21% each from what is left from my dad's wealth as he already gave my mum half of what he owns. My mum stated that she will pass what dad gave her to our brother only, and my dad knows this fact as he is the one who told me about my mum's plan, but he still included my mum and my brother into the remaining wealth that he has. Would it not be fair, Islamically speaking, that we, the daughters, get an equal portion of his remaining wealth. Could you please advise me of any solution that could make my dad change his mind ( please provide proof from the Quran and the Sunnah) and treat us ( his daughters) fairly during his lifetime. It is worth mentioning that my brother does not pray and is also very abusive to my dad as he continuously verbally and physically abuses him. While I understand that you are very busy, I do hope for a quick response. May Allaah reward you.

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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.

Regarding what your father gave to your mother, if you mean that your father has granted your mother a part of the house as a gift during his lifetime, then it is considered a valid gift and there is no harm in that; however, among the conditions for the validity of gift-giving in this case is that the father should remove his belongings from the house so that she takes possession of the part gifted to her. Jurists stated that when the husband gives his house as a gift to his wife, for the gift to be valid as per the sharee'ah, the husband should take his belongings out of it (and she takes possession of it). When your mother has taken possession of the half of the house that has been gifted to her, then it is impermissible for her to offer it or any part of it to her son while denying her daughters because she is Islamically enjoined to observe equality among her children in terms of gift-giving. Allaah, The Exalted, says (what means): {Indeed, Allaah orders justice and good conduct...} [Quran 16:90] The Prophet said, "Fear Allaah and observe equality among your children..." [Al-Bukhari and Muslim]

If she has offered her half of the house to her son and denied her daughters, then this gift is invalid as per the sharee'ah and it is incumbent on her to take it back.

On the other hand, if you mean that the father has ordered that your mother should take half of the house after his death, then this is not a gift; rather, it is a bequest. Since she (the wife) is among the eligible heirs entitled to inherit from him, then such a bequest would be invalid because it is made in favor of an heir. A bequest made in favor of an heir is invalid and non-binding; it must not be executed except with the consent of the other heirs. The Prophet said, "Allaah has appointed for each rightful heir what is due to him, and no bequest is to be made to an heir.” [Abu Daawood, An-Nasaa'i, At-Tirmithi, and Ibn Maajah]

Ad-Daaraqutni reported a similar version of the hadeeth with the following addition, "...unless approved by the other heirs."

If the other heirs do not approve such a bequest after the death of the bequeather, then each heir is entitled to his due share of the estate in full, and the bequest is not to be implemented in such a case.

As for the division of the estate that your father ordered to be carried out after his death, it is unfair and violates the division prescribed by Islamic law. Your father allocated a bigger share for his son than that to which he is entitled and decreased the shares of his wife and two daughters. It is impermissible for him to command them to abide by a division that contradicts that which is enjoined by Allaah. It is well-known that when the deceased leaves behind a wife, son, and two daughters only, his wife is entitled to one eighth of the estate, as Allaah says (what means): {But if you leave a child, then for them [i.e., wives] is an eighth of what you leave, after any bequest you [may have] made or debt.} [Quran 4:12]

The residue of the estate goes to the son and the two daughters by virtue of taʻseeb (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 gets double the share of the female, as Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females.} [Quran 4:11]

Hence, the estate should be divided into 32 shares; the wife gets one-eighth (4 shares), the son gets 14 shares, and each daughter gets 7 shares. This means that the wife is entitled to 12.5% of the estate, the son is entitled to 43.75%, and each daughter is entitled to 21.875% of the estate.

Lastly, we would like to advise you all to fear Allaah and abide by His commands. Your father is obliged to revoke the unfair division that he advised and, instead, his estate should be divided among the eligible heirs as per the sharee'ah. The laws of estate-distribution must be observed, and there is no room for personal preferences in this regard. Moreover, your mother is advised to fear Allaah and observe equality among her children in terms of gifts; she should not offer her son a gift and deny her daughters. Just as she would like all her children to show equal dutifulness towards her, she should be fair and treat them equally in terms of gift-giving.

Your brother, who abandons prayer and is undutiful to his father, should repent to Allaah of such sins. Indeed, forsaking the prayer is an act of disbelief, as explained in the sound hadeeth that reads, "The covenant that distinguishes between us and them is the prayer; so whoever leaves it, he has committed disbelief." [Ahmad, At-Tirmithi, An-Nasaaʻi, Ibn Maajah and others] Most scholars held that the hadeeth means that the abandonment of the prayer is considered an act of minor disbelief; however, some maintained that it is an act of major disbelief that takes the doer out of the fold of Islam, may Allaah safeguard us. Hence, based on the scholarly view that forsaking the prayer is an act of major disbelief taking the doer out of the fold of Islam, the son is not entitled to inherit from his father because the disbeliever does not inherit from the Muslim. Therefore, it is a grave and serious matter that should not be taken lightly; you should advise him and remind him of Allaah so that he would observe the prayer.

In addition, undutifulness towards the parents is among the gravest sins; the sin is even graver when it escalates into verbal or physical abuse, may Allaah safeguard us. It has been reported on the authority of Abu Bakrah that the Prophet said, "Shall I inform you of the biggest of the great sins?" They said, "Yes, O Messenger of Allaah!" He said, "To associate partners with Allaah in worship and to be undutiful to one's parents..." [Al-Bukhari and Muslim]

Moreover, the Prophet said, "Allaah cursed the one who cursed his parents ..." [Ahmad]

You should keenly advise your brother and remind him of Allaah before it is too late; the door of repentance is always open, and Allaah accepts the sinner’s repentance as long as his death-rattle has not yet begun.

Allaah knows best.