QUESTION:
What do the scholars of the Dīn and muftīs of the Sacred Law state regarding the following issue: People have a will written before they pass away, and then their wealth is distributed accordingly, so can one write an equal will specifically for a son & daughter?
Questioner: Zaahid from England
ANSWER:
بسم الله الرحمن الرحیم
الجواب بعون الملک الوھاب اللھم ھدایة الحق والصواب
It is impermissible in Islām to write a will for a son, daughter or any inheritor; be it for some amount of wealth or half, because the Holy Qur’ān has already declared the shares of inheritors, thus they will be given so accordingly.
This is why the Noble Prophet ﷺ stated,
“إِنَّ اللَّهَ قَدْ أَعْطَى كُلَّ ذِي حَقٍّ حَقَّهُ فَلَا وَصِيَّةَ لِوَارِثٍ”
“Allāh [ﷻ] has appointed for everyone who has a right what is due to him, and no bequest [will] must be made to an heir.”
[Sunan Abī Dāwūd, Hadīth no. 2870]
The type of will that is prevalent in countries such as the U.K. etc is not in accordance to Islamic principles; it has its own desires, which is the reason as to why it has the name “will” whose meaning is desire. Thus, such a will that is intended for an in inheritor is impermissible because this has been abrogated. It is stated in Fatāwā Qādī Khān,
“ان ھبۃ المریض وصیۃ والوصیۃ لوارث باطل”
“The gifting of an ill person is a will, and a will for an heir is invalid.”
[Fatāwā Qādī Khān, vol. 3, p. 624]
Likewise, it is stated in Fatāwā Hindiyyah,
“وَلَا تَجُوزُ الْوَصِيَّةُ لِلْوَارِثِ عِنْدَنَا إلَّا أَنْ يُجِيزَهَا الْوَرَثَةُ”
“According to us, a will for an inheritor is not permissible, unless the remaining inheritors permit it; it is thereby permissible.”
[al-Fatāwā al-Hindiyyah, vol. 6, ch. 1, p. 80]
In addition, any will that is intended for anyone who is not an inheritor will be enacted upon from a 1/3 of the wealth, just as it is stated in Fatāwā Hindiyyah,
“تَصِحُّ الْوَصِيَّةُ لِأَجْنَبِيٍّ مِنْ غَيْرِ إجَازَةِ الْوَرَثَةِ، كَذَا فِي التَّبْيِينِ وَلَا تَجُوزُ بِمَا زَادَ عَلَى الثُّلُثِ إلَّا أَنْ يُجِيزَهُ الْوَرَثَةُ بَعْدَ مَوْتِهِ وَهُمْ كِبَارٌ”
“A will intended for a non-inheritor without the permission of the inheritors is permissible, although making a will for more than 1/3 of the wealth is not permissible. Unless, after the person’s passing, all the inheritors permit the will of the extra wealth, and provided that they are all mature[1].”
[al-Fatāwā al-Hindiyyah, vol. 6, ch. 1, p. 80]
Here in Western countries, only a will from a solicitor has any precedence, in which the principles of Islamic Law [Sharī’ah] are not given any consideration, due to which the rights of many inheritors are violated, and other inheritors don’t even receive a penny. Even if one was not to write a will, the inheritors still do not receive their right, rather, it is given according to the principles of an outsider.
In this case, if a Muslim writes his will according to the Islamic manner of dividing inheritance, in which the shares of all the inheritors are declared, and the one passing away writes at the end that, “My advice is that after my passing, my inheritors divide this wealth accordingly”, then there is no problem in this, provided that there is nothing which is contrary to Islamic Law, because this is inviting towards righteousness; it is not an actual will intended for any inheritor.
والله تعالی أعلم ورسوله أعلم صلی الله علیه وآله وسلم
کتبه أبو الحسن محمد قاسم ضیاء القادري
Answered by Mufti Qasim Zia al-Qadri
Translated by Haider Ali Madani
Read the original Urdu answer here: [Q-ID0857] The ruling related to making a will for an inheritor
FOOTNOTE
[1] i.e. having reached puberty.
Note
If a person passes away and has left behind a will, then according to the law of the land, it is enacted upon in full. However, it has been mentioned and explained in the aforementioned answer as to how one will abide by Islamic Law and, in effect, the law of the land also.
But if someone passes away without having left behind a will, then such a person has passed away intestate, and the laws of intestacy will apply to said person. However, as mentioned in the answer above, this method is not in accordance to Islamic Law either.
So, if an Islamic will has not been left behind, as per the above answer, and one has no other choice but to divide the assets according to intestacy, then one would do so for the sake of formality in order to abide by the law of the land. However, later on, the inheritors must split this in accordance to the Islamic method – this way, they are abiding by both Islamic Law as well as the law of the land. Otherwise (if they do not do so), they will be sinful.
