Deceased left whole wealth to one of four sons
24-10-2016 | IslamWeb
Question:
Assalaamu alaykum. Please calculate the inheritance according to the following information:
- Does the deceased have male relatives who are entitled to inherit:
- The will which the deceased left behind and that is related to his inheritance is as follows: As written, "HIBA NAMA", giving all his property to the fourth son, but the "Hiba Nama" does not have any signature of any witnesses; only a blank space is provided and it is written there that these people signed in front of me. Another thing; he orally said many times that all his property is for the fourth son. For more information, see additional details.
- Additional information: Assalaamu alaykum. I do not know what full-brother and half-paternal or maternal and so on means. Please do not refer to any preformed fatwa as it will be difficult for me to derive the correct opinion. There are four sons (no daughter), three are doctors while the fourth one does nothing or cannot do anything. Before the death of their father, their father made 'hiba'; he said that his whole property is for the fourth son in front of many relatives. He has also written a "HIBA NAMA" before his death, in which he has written that his whole property is for his fourth son, but he died before taking the signatures of the witnesses. He left the space for the signatures open and wrote, "These people signed as a witness in front of me." How should we divide the property; should we give all of it to the fourth son or divide it equally between the sons? May Allaah reward you.
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.
If the deceased gave his wealth as a gift to his fourth son, who is unable to work, and the son took the gift into his possession, such that he had the freedom to dispose of it as its rightful owner, then the gift is valid and binding. However, is the father allowed to give some of his children gifts and deny the others? The scholars held different views in this regard. The majority of the scholars held that it is permissible, but the Hanbalis and the scholars who adopted their view held that it is impermissible, and this is the view adopted at Islamweb. However, these scholars held that it is allowed for the father to favor some of his children over the others with gifts for a valid reason, such as the sickness of one of the children or his inability to work or the like.
The Kuwaiti Encyclopedia of Fiqh reads:
"Scholars held different opinions regarding the obligation of observing equality among children in terms of gift-giving. The Hanafis, Maalikis and Shaafi‘is held that it is only recommended and not obligatory to give children equal gifts. The Hanbalis and the Hanafi scholar Abu Yoosuf, on the other hand, held that equality in giving gifts is an obligation, and this is also the view of Ibn Al-Mubaarak, Taawoos, and it is one of the two views reported from Imaam Maalik 
. If the parent favors one of the children over the others with a gift or offers some of them better gifts, then he bears a sin for that, and he is obliged to restore justice either by taking back the extra gifts offered to those who were favored or by giving more to the others in order to make the gifts equal."
Ibn Qudaamah wrote:
"If the parent favors some of his children over the others with gifts for a valid reason such as a need, disability, chronic illness, blindness, having a bigger family and greater responsibilities, preoccupation with seeking knowledge or similar virtues, or if he denies some of his children gifts due to their dissoluteness, practicing religious innovations, or because they would spend it on disobeying Allaah, then the permissibility in this regard was reported on the authority of (Imaam) Ahmad. He said regarding favoring some of the children with endowments, 'There is no harm if it is for a need, and it is disliked if it is mere favoring.' A gift bears the same meaning of an endowment. The apparent indication of his words is forbidding favoring some children over the others in any case, because the Prophet, sallallaahu ‘alayhi wa sallam, did not ask Basheer (ibn Sa'ad) for details about his gift (to his son, An-Nu'maan ibn Basheer)." [Al-Mughni]
However, if the son did not take the gift into his possession before his father died, then the gift is null and void and the gifted wealth is considered part of the estate to be divided among all the heirs. Imaam Maalik cited in his book Al-Muwatta’, "Abu Bakr had gifted his daughter ‘Aa’ishah 
part of his wealth (twenty Wasqs [One Wasq is equal to sixty Saa' and one Saa' is equal to 2480 grams]). When he was on his deathbed, he said, 'By Allaah, O my daughter, I had given you twenty Wasqs and if you have already collected them, then they are yours; otherwise, it is for the heirs, so divide it amongst yourselves according to the Book of Allaah."
The Maaliki scholar Ibn Abu Zayd wrote, "The gift, charity, or endowment is not valid except if the beneficiary takes it into his possession..." [Ar-Risaalah]
However, if the father had intended that the fourth son, who has no wealth, should take the gifted wealth after his death, then that is considered a will made in favor of an heir. Such a will cannot be executed except with the consent of all the heirs. Ibn Qudaamah wrote, "If the person made a bequest in favor of an heir, then it cannot be executed without the approval of all the rightful heirs, and if the other heirs did not give their consent to it, then it is not declared valid or binding, and there is no difference of opinion among the scholars in this regard..." [Al-Mughni]
In any case, if the deceased left an estate and the rightful heirs are the deceased's four sons only, then the estate should be divided among them equally. Hence, the estate should be divided into four shares, and each son gets one share.
If the heirs deny the validity of the gift or bequest, then the case must be referred to the Sharee'ah court to settle this dispute. It should be noted that the division of inheritance is a serious and complex matter. It does not suffice to settle for a fatwa, which is formed based on the information provided by the questioner. Instead, you should refer the case to a legitimate Islamic court for investigation. There may be other heirs who could be discovered after careful investigation. Moreover, the deceased may have left a will or been liable to debts or other obligations and liabilities which the heirs are not aware of. It is well-known that the settlement of debts and other liabilities are given precedence to the heirs' rights to their shares of the estate. Therefore, you should not divide the estate without referring the case to an Islamic court, if any exists, in order to secure the interests of both the living and the dead.
Allaah knows best.