Mother excluded her from her will

30-5-2016 | IslamWeb

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 5 - Additional information: My mother passed away in July 2015. She has five daughters and one son. My mother came to the UK in the early 1950s. My father passed away in 1961, when I was three months old. My mother did not leave a will. I was told that she gifted her property to my four sisters and one brother. I was excluded because I married out of the family, my eldest sister did not allow or encourage me to visit or reconcile my differences with my mother before she passed away despite me visting. My sisters say that it was her last wish but do not speak of reconciliation.

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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. 

Your mother and forgive her, should not have given a gift to some of her children apart from others without having a sound reason for doing so because this is forbidden according to a large group of scholars, regardless of whether or not those who were given the gift actually took possession of it in her life and whether or not the gift was valid (met the conditions of validity of a gift).

Ibn Qudaamah said:

“Our evidence is that An-Nu'maan ibn Basheer narrated, 'My father offered me a gift from his money, and my mother ‘Amrah bint Rawaahah said, 'I will not agree to it until you ask the Messenger of Allaah, sallallaahu ʻalayhi wa sallam, to bear witness to it.' So my father went to the Messenger of Allaah, sallallaahu ʻalayhi wa sallam, to make him witness his gift. Thereupon, he asked, 'Have you given all of your children the same as him?' He said, 'No.' Thereupon, the Messenger of Allaah said, 'Fear Allaah, and treat your children equally.' My father returned and took back the gift.'

Another narration reads, 'He said to him, 'Do not ask me to bear witness to injustice.'' A third narration reads, 'Ask someone other than me to be a witness to this.' Another reads, 'Then take it (the gift) back.' It is an authentic hadeeth narrated by Al-Bukhari and Muslim. All this is evidence of prohibition, as the Prophet called it injustice and ordered him to take it back and refused to be a witness to it. Injustice is forbidden, and the command (of the Prophet) indicates that it is an obligation.

Also, favoring some children over others creates enmity, hatred, and cutting ties of kinship between them; so it is forbidden, just as it is forbidden to marry a woman and her maternal or paternal aunt at the same time.”

As regards the validity of the gift and it being effective, then if your brother and sisters had taken possession of your mother's gift to them when she was healthy and they possessed it before she died, then there is a difference of opinion on this gift being effective and entering the possession of the one to whom it was gifted.

Ibn Taymiyyah was asked, “A man had male and female children and he gifted his daughters without gifting his sons before his death. Is he accountable for anything?”

He answered:

“It is not permissible for him to gift some of his children apart from others; rather, he is obliged to be just between them, as commanded by the Prophet, sallallaahu ʻalayhi wa sallam, who said, 'Fear Allaah and treat your children equally.' He said this to a man who gifted some of his children and asked the Prophet, sallallaahu ʻalayhi wa sallam, to be a witness to that, and the Prophet said, 'I do not bear witness to injustice;' and he ordered him to take it back. Hence, if this was done verbally and he did not give the girls the gift until he died or became sick with his death sickness, then this [gift] is void according to the consensus of the scholars, except for an aberrant difference of opinion. If he had made them possess the gift while he was in good health, then there are two opinions of the scholars about taking back the gift, and Allaah knows best.” 

Ibn Qudaamah said in Al-Mughni:

“If he died and did not take it back, then it becomes confirmed for the one to whom it was gifted provided that he gifted it to him while he was in sound health; meaning if he had favored some of his children over others when gifting them, or he gave some apart from the others, and then he died before he took it back, then it becomes confirmed for the one whom it was gifted to, and it becomes binding. The rest of the heirs are not entitled to disapprove of it (take it back). This was narrated from Imaam Ahmad, who said, 'Maalik, Ash-Shaafi'i, and the scholars of the Hanafi School, and most of the scholars, held this view.'”

However, if the gift issued by your mother was only verbal and your brother and sisters did not possess what was (supposed to be) gifted to them, then it is considered a void gift, and it is a must to divide it as inheritance between all the heirs, including the questioning sister. In this case, if your mother did not leave any other heirs than her son and four daughters, and you are the fifth daughter, then the inheritance shall be divided into seven shares; the son gets two shares, and each daughter gets one share.

In any case, we advise you to supplicate Allaah to have mercy upon your mother and forgive her. You should give charity while intending the reward for her and do what benefits her after her death. The disputes that happened between you and your mother do not exempt you from being kind and dutiful to her. We also recommend that you repent as much as possible and seek forgiveness for the disputes that you had with your mother and for being negligent in visiting her.

Finally, it should be noted that the matter of inheritance is a very complex issue, so a mere fatwa, which is an answer issued according to the question, is not enough. Rather, the matter should be taken to an Islamic court to look into the case and investigate, as it might be that there is an heir who would not be known except after investigation, and there might also be a will, debts, or other dues that are not known to the heirs. It is known that these rights come in priority over the right of the heirs in the inheritance. Therefore, the inheritance should not be divided without resorting to an Islamic court, if available, in order to fulfill the interests of both the dead and the living.

Allaah knows best.