By Asma Bint Shameem
What your brothers are doing is wrong and unjust.
It’s not up to me or you to write a will however we want during our lifetime and divide our money among whoever we like, like the non Muslims do.
Rather, Inheritance can only be divided after the *death* of a person.
Secondly, the shares of this inheritance are also not up to the discretion of the person.
Rather, the inheritance must only be divided according to the rules clearly outlined in the Qur’aan by Allaah Himself.
The money automatically goes to whoever the surviving rightful heirs are after the death of the person.
And no one needs to “write a will” for that.
2. If a person wants to divide his property and it’s in his final sickness, and the person is about to die, then that’s allowed.
And in this situation, this would be called a “bequest”.
And one can only bequeath up to *one third* of their estate to someone.
However a person can NOT bequeath anything to *his shar’ee heir* because the Prophet sal Allaahu Alayhi wa sallam forbade that.
He Sal Allaahu Alaiyhi wa Sallam said:
“Allaah has given each person who has rights his rights, and there is no bequest to an heir.”
(Abu Dawood; saheeh by al-Albaani in Saheeh Abi Dawood)
3. It is permissible to divide some property or wealth among the heirs during the lifetime of a person, when he’s in GOOD HEALTH.
This would be considered a “gift” and can NOT be called “inheritance”.
A person can “gift” his children or spouse some property or money during his lifetime, as long as he is FAIR in his division.
And his intention is not to *‘deprive’* a rightful heir.
This gift has to be JUST and given to ALL his children equally according to the majority of the scholars.
He cannot give to one of his children and exclude the others,
UNLESS the children don’t mind and WILLFULLY agree with that, without any pressure or compulsion.
Anyone who divides unfairly, against his children’s will is sinful in the sight of Allaah.
And he has to answer to Allaah for his unfairness.
al-Nu’maan radhi Allaahu anhu said that his father brought him to the Messenger of Allaah Sal Allaahu Alaiyhi wa Sallam
and said,
“I have given this son of mine a slave.”
He said,
“Have you given a similar gift to all of your sons?”
He said,
“No.”
He said,
“Then take it back.” (al-Bukhaari, Muslim)
According to another version he said:
“Fear Allaah and treat your children fairly.” So he went back and took back his gift.” (al-Bukhaari)
Imaams Abu Haneefah, Maalik, ash-Shaafa‘i and Ibn al-Mubaarak said:
“The female is to be given the same as the male, because the Prophet Sal Allaahu Alaiyhi wa Sallam said to Basheer ibn Sa‘d:
“Treat them fairly (equally)” and he explained that by saying: “Would you like them all to honor you equally?”
He said:
“Yes.”
He said:
“Then treat them fairly (equally).”
And the daughter is like the son in terms of the duty to honor the parents, and the same applies to giving gifts to her.
It was narrated that Ibn ‘Abbaas said: The Messenger of Allaah Sal Allaahu Alaiyhi wa Sallam said:
“Treat your children fairly (equally) in giving gifts; and if I were to have given precedence to anyone, I would have given precedence to women over men.” Narrated by Sa‘eed in his Sunan.
And because it is a gift given during one’s lifetime, so male and female are to be treated equally, as is the case with regard to spending on maintenance and clothing.”
But if someone gives one or some of his children and excludes his other children with the WILLFUL CONSENT of the others and they’re not under any pressure etc then it’s allowed to do so and the person is not sinful.
Shaykh Ibn Baaz said:
“The father (mother) must be just and fair to his children, males and females. It is not permissible for him to give gifts to some of them and not to others, EXCEPT with the consent of those who are not given, if they are mature. Their consent should not be given out of fear of their father, rather it should be given willingly, with no threats or fear of their father. Not differentiating between them is better in all cases, and is better for their hearts, because the Prophet Sal Allaahu Alaiyhi wa Sallam said: “Fear Allaah and treat your children justly.” Saheeh – agreed upon.”
(Majmoo’ Fataawa al-Shaykh Ibn Baaz, 9/452)
The scholars said:
“During a person’s lifetime his wealth cannot be described as an inheritance, and those who will be given a share of it cannot be called heirs, because the first condition of inheritance is the death of the testator.
There are two issues that are worth pointing out here:
1.If your father wants to give his children – only – something whilst he is still alive, that is described as a gift or present, and it is permissible for the father to do that, but that is on condition that he treat all his children fairly, both male and female.
2.If your father wants to divide his property among all his heirs, it is permissible for him to do that on condition that he does not deprive some of them and he does not detract from their rights.
However we do not encourage anyone to do that, because of what it may cause of some of the children being tempted by that wealth into falling short in honoring their father.
Moreover, he himself may need that wealth after it is no longer his.
He may have more children, other than those to whom he gave that wealth, in which case those new children would be deprived of having a share of their father’s wealth with their siblings.
It should be noted that if handover of a gift to children is deferred until after one dies, then it becomes a bequest, and it is proven in the hadith that “There is no bequest to an heir.” Such a gift should be put back with the estate and shared out according to the laws prescribed in Islam.” (Islamqa Fatwa # 192033)
And Allaah knows best
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