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Inheritence And Will (wasiyat)
We were a small family of three, including my wife, son and me. My son passed away four weeks ago and now only my wife and I are left to care for each other. Both of our parents expired long time ago. I have two caring brothers, who are well off and do not need any financial help. I own a house and some finances in bank. I understand that in this situation part of inheritance can be given to my brothers AFTER what I instruct in my will (wasiyat). Since my brothers are financially well off and my wife will need support in form of house and finances, is it allowed to write in my will (wasiyat) that 100% of my inheritance may be passed on to my wife?
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10 Replies
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Inheritence And Will (wasiyat)
updated 4 years, 4 months ago
5 Members
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10
Replies
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Assalamualikum!
First of all accept our deepest condolences on the demise of your son. May Allah forgive his mistakes and grant him high ranks in Jannah; and give you both patience and courage to bear this situation.
Regarding your query, please refer to the reply below and let us know in case of any ambiguity:
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The Right to make a Will
(Javed Ahmed Ghamidi)
“It is repeatedly stated in the law of inheritance mentioned in the Quran that the inheritance should be distributed after disbursing any will made by the deceased. Two questions arise on this.
First, is there a limit imposed on the amount a person can will in favor of someone or does he have the discretion to will any amount he wants to?
Second, can a will be made in favor of people who have been made the heirs of the deceased by the Almighty?
The answer to the first question is that the words of the Quran impose no limit on the amount that is to be willed. The Almighty has unconditionally mentioned that this distribution of inheritance shall take place once the will of the deceased has been executed. No limit can be imposed on this willed amount as per the dictates of language and style of the relevant verses. The narrative which is attributed to the Prophet (sws) in this regard has an entirely different connotation: one of his companions expressed his wish before him that after his death he wanted to donate all his wealth for the cause of God. The Prophet (sws) replied that this would be too big an amount given for this purpose and that if a person has wealth, he should not leave his heirs empty-handed. The companion then asked if he could donate two thirds and later asked if he could reserve half of his wealth for this purpose. At this, the Prophet (sws) gave him the same reply. The companion further asked if he could give one-third of his wealth. The Prophet (sws) responded by saying that this was quite enough [1]. Everyone can see that this was a comment of the Prophet (sws) in a particular case. It cannot be regarded as a legal limit imposed by the Prophet (sws).
The answer to the second question is that the Almighty Himself has made a will in favor the heirs of a deceased. So no Muslim can dare make a will in this regard. Thus, on the basis of familial relationship, no will can be made in their favor; however, a will can certainly be made in favor of these very heirs because of some need they may have or because of some service they may have rendered for the deceased or because of any similar matter. Thus if one of the children of a person is school going and as such is not earning while others are, or if one of the children has served his parents more than the others, or if a person fears that after his demise there will be no one to look after and provide for his wife, then a will can be made in favor of each of these. Just as a will can be made in favor of friends or for the purpose of charity, it can similarly be made in favor of these heirs. There is nothing in the shariah which hinders it.
[1]. Al-Bukhari, Al-Jami’ al-sahih, vol. 3, 1006, (no. 2591); Muslim, Al-Jami’ al-sahih, vol. 3, 1253, (no. 1628).”
(Translated by Dr Shehzad Saleem)
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NOTE: Please note that you can transfer any of your properties to your wife’s name during your lifetime, independent of the will.
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@UmerQureshi In your response to second question, would it not be against the next part of the verse meaning, “and this shall be followed after the will has been fulfilled and the loan has been paid”. Had it been the way, wouldn’t Allah almighty had said, “and this should be followed as it is but for any other relation, the will should be followed after the loan has been repaid”?
Thanks
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Assalamualikum!
If you don’t mind, can you please further elaborate your point?
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In the Quran it is mentioned to follow the will of Allah after the will of deceased and after paying the debt (if any). Using the words of مِن بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ.
Whereas, you said, The answer to the second question is that the Almighty Himself has made a will in favor the heirs of a deceased. So no Muslim can dare make a will in this regard.”
These two statements seem contradictory. Had it been like the way you said, “No Muslim can dare make a will in this regard of familial relations” it must had been mentioned in the Quran. Quran says, “after fulfilling any will they (may have) made or debt (if any).”It does not say that, “You must follow the will/advice of Allah for these aforementioned relatives unless either of them is more needy as per your judgement” The point is that Allah has openly said to follow this advice if there is no will OR if the will has been fulfilled and there is some remainder. IT DOES NOT RESTRICT ON HOW SHOULD ONE MAKE A WILL. You can definitely take help from this guidance, which is immaculate, BUT YOU ARE NOT BOUND TO FOLLOW IT. I am not taking an example of an exceptional case just like you used for an example in your argument (if a child is school going then you can give him more). I am saying that, although you should do your best but you can certainly deviate from these standards unlike your statement which I quoted above.
That is based on my humble understanding of the Quran as well as after following JAG’s point of view which also stresses that “After the will of deceased has been followed and the loan (if any) has been repaid”.
Jazak Allah!
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I am really sorry for putting you through this trouble of explaining your point. And thank you for taking time to explain it further.
The statement in my response “that the Almighty Himself has made a will in favor the heirs of a deceased. So no Muslim can dare make a will in this regard” is based on following verse of Quran:
يُوصِيكُمُ اللّهُ فِي أَوْلاَدِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الأُنثَيَيْنِ فَإِن كُنَّ نِسَاء فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ وَلأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلأُمِّهِ الثُّلُثُ فَإِن كَانَ لَهُ إِخْوَةٌ فَلأُمِّهِ السُّدُسُ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ آبَآؤُكُمْ وَأَبناؤُكُمْ لاَ تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعاً فَرِيضَةً مِّنَ اللّهِ إِنَّ اللّهَ كَانَ عَلِيما حَكِيمًا
“God enjoins you concerning your children that among them a boy’s share is equal to that of two girls’. And, if there are only girls among the children and they are [two or] more than two, then they shall be given two-thirds of the inheritance, and, if there is only one girl, then her share is half. But a sixth of the inheritance [before this] should be given to each of the parents if they have children, and if there are no children and only the parents are the heirs, then the mother’s share is a third [and the rest is for the father]; however, if there are brothers and sisters, then the mother’s share is the same one-sixth[and the father’s share is also the same one-sixth]. These shares should be given after the execution of any will he may have bequeathed and after discharging any debts he [may] have left behind.
You know not who among your children and parents are nearest to you in benefit. [For this very reason], these shares are fixed by God. Indeed, God is Wise and All-Knowing.” (4:11)
In the presence of such clear directives & explicit words, I don’t think that we are left with any leeway to consider this just an advice (an optional thing) from God. It is very clear that Allah does not want us to use any of our intellect while distributing inheritance among heirs (experience suggests this has only resulted in chaos and destruction). So in familial capacity, no will can be made in favor of heirs. However, since room for a will has been left open, which can be used to make will in favor of anyone on the basis of a number of reasons, & it is because of those reasons (illat), an heir can become eligible for that separate will, not in his/her capacity as heir, but because his / her eligibility resulting from that illat / reason which makes that separate will to exist independently.
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کیا قرآن کے اصول وراثت جسکا اس آیت میں ذکر ہوا ہے متعین کرنے سے پہلے عرب میں وراثت کے لیے اس قسم کی کوئی تقسیم موجود تھی؟؟
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كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ إِنْ تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ فَمَنْ بَدَّلَهُ بَعْدَمَا سَمِعَهُ فَإِنَّمَا إِثْمُهُ عَلَى الَّذِينَ يُبَدِّلُونَهُ إِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ فَمَنْ خَافَ مِنْ مُوصٍ جَنَفًا أَوْ إِثْمًا فَأَصْلَحَ بَيْنَهُمْ فَلَا إِثْمَ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (٢ :١٨٠-٢)
When death approaches any one of you and you are leaving behind some wealth, it is incumbent upon you to make a will in favour of your parents and relatives according to the conventions [of society]. This is an obligation imposed upon the God-fearing. Then if anyone changes the will after hearing it, then its sin shall rest on those who change it. Indeed, God hears and knows [all things]. But anyone who fears partiality or wrongdoing on the part of the person who has made the will, and he makes peace between them, then there is nothing sinful in this. For Allah is Forgiving, Ever-Merciful. (2:180-2)
The verses of Surah Nisa (quoted below) which ascertain a specific share for each heir and their placement in the Quran clearly show that the above mentioned directive of making a will for the parents and relatives according to the conventions of society was revealed earlier. These verses of Surah Nisa also explain that the reason the Almighty has ascertained the shares of parents and relatives in the legacy of a deceased is that man cannot know who among his relations is near to him in benefit. Also, in these verses, the Almighty has called this ascertaining of shares as His will, against which no Muslim, it is evident, should dare make his own will. The following verse also corroborates this fact:
لِلرِّجَالِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَفْرُوضًا(7:4)
From what is left by parents and those nearest related, there is a share for men and a share for women whether small or large – a fixed share. (4:7)
In view of this, it is clear that the verses of Surah Nisa abrogate the above quoted directive of Surah Baqarah. However, the purpose of this abrogated directive in the words of Imam Amin Ahsan Islahi was:
The directive of making a will in favour of one’s parents and relatives mentioned in this verse was contingent upon the conventions of the society, and was given in the interim period when the Islamic society had not become stable enough to be given the directives which were later revealed in Sūrah Nisā. It was revealed as a temporary directive before circumstances became conducive for detailed directives in this regard. It had two basic objectives: first, to immediately safeguard the rights of those relatives which were being usurped by influential relatives and second to revive once again the conventions of the society in this regard which had existed in the nobility of Arabia but were engulfed in the dust of the age of ignorance (Jāhiliyyah); this revival would pave the way for the detailed law that was to be revealed later.[1]
(Excerpt from Meezan: Javed Ahmed Ghamidi)
(Translated by Dr. Shahzad Saleem)
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[1] Amin Ahsan Islahi, Tadabbur-i-Quran, 2nd ed., vol 1, (Lahore: Faran Foundation, 1986), pp. 439-40
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Hi Umer bhai,
Do you agree with Mohammad Hijab’s calculation of the inheritance redistribution when the fraction is such that sum goes over 100% ? He is saying it is possible that sum of the shares can go beyond the total inheritance and in such a case, we recalculate shares by adjusting the denominator. Do you agree with it ?
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Asslamualikum!
No! I don’t agree with his premise and the conclusions he draws from that premise. The main difference lies in the principles of understanding the Quran.
For Ghamidi Sahab’s interpretation and basis for his arguments, you can refer to this thread.
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Thnaks Umer bhai..
I asked a question in that thread you linked. Kindly help answer that.
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