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Non-Shari`ah Compliant Will: Must Be Fulfilled?

15 March, 2018
Q As-salamu `alaykum. My question is about Shari`ah inheritance law and wills. My mother recently passed away, may Allah have mercy on her, leaving 3 daughters. However, in her will she left her whole estate to us and we realized that her will isn't Shari`ah compliant. My father and grandparents passed away many years ago and she has no sons. My mother has 2 full sisters, 4 paternal brothers and 6 paternal sisters.Before my mother passed away her intention was to use her money to pay off our mortgages due to interest. My older sister suffers from mental problems and someone took advantage of her so she had a baby (3 years) who I am raising and in the will my mother spilt my older sister's share with her daughter which we have to put in a trust fund for them both.Throughout my mother’s life she has never relied on anyone and worked extremely hard to provide us a better life and opportunities. My parents got divorced when we were very young and my mother didn't receive much help from her family when it came to raising us.My questions are:1- Are all her siblings entitled to a share of her estate whether paternal brothers/sisters or full sisters? What would her siblings share work out to be?2-Can we act on my mother’s intentions to pay off our mortgages with her money? We want to do the right thing by not dishonoring my mother's wishes to reduce our mortgages/riba, ensure my mentally ill sister is provided for. However, we are also fearful of consequences of not correcting the will to ensure it is Shari`ah complaint.

Answer

Prof. Dr. Monzer Kahf
15 March, 2018

Wa `alaykum as-Salamu wa Rahmatullahi wa Barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

In this fatwa:

As for the will, it is allowed for the baby but not for any of the heirs. The whole estate is to be divided into three equal thirds; the first to the two full sisters and the other two for you and your sisters.

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Responding to your question, Prof. Dr. Monzer Kahf, Professor of Islamic Finance and Economics at Qatar Faculty of Islamic Studies, states:

As the case is described and as the mortgage debt is on the deceased (your mother, may Allah have mercy on her) you should start with the payment of funeral expenses, then the mortgage debt.  Then the will (wasiyyah), which is valid for the baby because he is not an heir, is not valid for your sister because she inherits as an heir although she has mental problem. Of course, this wasiyyah must not exceed one third of the estate after expenses and mortgage debt.

The balance after paying these three items is divided into three equal parts; one third goes to the two full sisters to be divided equally between them and the two thirds is to be divided between the three of you; daughters of the deceased, also equally between you. Other siblings of the deceased are all blocked by the presence of the two full sisters.

Please, remember that this distribution is mandatory as it is simply an application of verses of Surat An-Nisa’ (4:11-14). Please, read especially verses 13 and 14 of the same Surah and realizes how strong their obligation is.

Allah Almighty knows best.

Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.

shariah Non-Shari`ah Compliant Will mortgage estate
About Prof. Dr. Monzer Kahf
Dr. Monzer Kahf is a professor and consultant/trainer on Islamic banking, finance, Zakah, Awqaf, Islamic Inheritance, Islamic estate planning, Islamic family law, and other aspects of Islamic economics, finance, Islamic transactions (Mu'amalat). Dr. Monzer Kahf is currently Professor of Islamic Finance & Economics at the Faculty of Economics and Management, Istanbul Sabahattin Zaim University, Turkey