she left instructions that her oldest son should not be given any of
her wealth, because she had helped him get married with her money, and
she said:It is enough that I helped him get married; divide the money
and gold among yourselves and do not give anything to my oldest son,
because he has taken his share. Should we execute her will or give her
oldest son his share? Should we divide the wealth now or wait until
the younger sons grow up? Because currently they are still minors.
Also, the grown up sons and daughters are asking for it to be divided
now. What is thesolution?.
Praise be to Allaah.
Firstly:
This will that gives instructions to deprive the oldest son of
inheritance is not permissible and is not valid, because it is
transgressing the limits set by Allah and is harming one of the heirs.
Allah, may He be exalted, says (interpretation of the meaning): "…
after payment of any bequestsor debts, so that no harm is done to
anyone." [an-Nisa' 4:12].
Ibn Katheer (may Allah have mercy on him) said in his Tafseer: i.e.,
so that his bequest will be based on justice and not on harming,
unfairness or wrongdoing by depriving one of the heirs or detracting
from his share, or giving morethan Allah has decreed should be his
share. Whoever tries to do that is like one who has opposed Allah and
His wisdom and division of the estate. End quote.
Hence Ibn 'Abbaas (may Allah be pleased with him) said: Causing harm
in bequests is a major sin.
Al-Haafiz said in al-Fath: This was narrated by Sa'eed ibn Mansoor in
a mawqoof report with a saheeh isnaad. It was also narrated by
an-Nasaa'i and its men are thiqaat (trustworthy).
The mother's getting herson married is a righteous deed and she is not
obliged to give to the rest of his siblings the equivalent of what she
gave to him; rather if any of them need to get married during her
lifetime, she should get him married. What somepeople do, if they get
one of their sons married off, is to bequeath money to the rest of
them, thinking that this is fair, and something like this is what has
happened in the case of the woman asked about here; she wanted to
deprive her son of his share of the estate, thinking that this was
fair.
But Shaykh Ibn 'Uthaymeen (may Allah have mercy on him) said:It is not
permissible for aperson to favour some of his children over others
except between male and female; he can give the male double what he
gives to the female, because the Prophet (blessings and peace of Allah
be upon him) said: "Fear Allah and treat your children fairly." So if
someone gives one of his sons onehundred dirhams, he should give the
others one hundred dirhams each, and he should givethe daughters fifty
dirhams, or take back the money that he gave to the first son. What we
have mentioned here does not apply to obligatory maintenance;when it
comes to obligatory maintenance he should give each of them what he
needs. If itso happens that one of his sons needs to get married, he
should get him married and give him the mahr if the son cannot pay the
mahr, and in this case he does not have to give the others the same as
he gave to this one who needed to get married and he paid for the
mahr, because getting sons married is part of maintenance. I would
also like to point out something that some people do out of ignorance:
when a man has sons who have reached the age of marriage, he gets them
married, and if he has other sons who are still young, he leaves a
bequest in his will givingthem something like what he spent to get
theadult sons married. This is haraam and is not permissible, because
thisis a bequest to an heir, and making a bequest toan heir is haraam.
The Prophet (blessings and peace of Allah be upon him) said: "Allah
has given each one who has rights his rights, and there is no bequest
to anheir." So if he says: I am bequeathing this money to them because
I got their brothers married with a similar amount, we say: if the
younger ones reach the age of marriage before you die,then get them
married as you got their brothersmarried, but if they do not reach
that age (before you die), you arenot obliged to get them married.
End quote from Fataawa Islamiyyah, 3/30
To sum up: it is not permissible for a person to bequeath to the rest
of his sons money for them to get married, or to deprive those whom he
previously got married of all or part of their inheritance, because
that is transgressing the limits set by Allah, may He be exalted, and
is causing harm by means of one's bequest.
What must be done is to divide the estate among all the heirs, each
one taking the share allocated to him by sharee'ah.
Secondly:
With regard to the request of some of the heirs for the estate to
bedivided, this is their right and you should respond to that. As for
those who are still minors, their share should be kept for them and
what they need for their maintenance should be taken from it. Then
when they grow up and become mature, they may be given what remains of
their wealth, because Allah, may He beexalted, says (interpretation of
the meaning):
"And try orphans (as regards their intelligence) until they reach the
age of marriage; if then you find sound judgement inthem, release
their property to them, but consume it not wastefully, and hastily
fearing that they should grow up, and whoever amongst guardians is
rich, he should take no wages, but if he is poor, let him have for
himself what is just and reasonable (according tohis work). And when
yourelease their property to them, take witness in their presence; and
Allahis All-Sufficient in taking account"
[an-Nisa' 4:6].
And Allah knows best.
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And Allah Knows the Best!
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Published by :->
M NajimudeeN Bsc- INDIA
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