not have children. I have adopted my brothers daughter. we 6 brothers
are partners in a running company since 1962 and doing
businesstogether.
My share is 20% in the partnership company.
As my adopted daughter is helping me, I have the intention to gift 60%
of my wealth to my adopted daughter & 25% to my wife during my life
time and 15% for charity purpose after mylife time.
For this purpose, I have written a Hiba to donate60% of my wealth to
my daughter and 25% to mywife during my life time.
In this context, I have also asked for a letter in writing from my 5
brothers &2 sisters that they will forsake their share in my wealth
after my lifetime.
Should I ask them to forsake their wealth before my lifetime
Can I ask them to forsaketheir wealth after my lifetime.
Can I give 60% as gift to my adopted daughter during my lifetime.
Can I write a will to give 60% as gift to my adopter after my lifetime
Is what I am doing is correct according to the shariah?
If not, what is the best solution to share my wealth with the
adopteddaughter and advice Islamic methodology to divide my share.
Praise be to Allah.
Firstly:
If what you mean by adoption is that this girl has become like your
daughter, in the sense that she is named after you and carries you
name, this is haraam andis not permissible. Allah declared it invalid
in the verse (interpretation of the meaning):
"nor has He made your adopted sons your real sons. That is but your
saying with your mouths. But Allah says the truth, and He guides to
the (Right) Way.
Call them (adopted sons) by (the names of) their fathers, that is more
just with Allah. But if you know not their fathers (names, call them)
your brothers in faith and Mawaleekum (your freed slaves)"
[al-Ahzaab 33:4-5].
But if what you mean by adoption is that you have taken her in and are
looking after her and treating her kindly by spending on her and
raising her, this is something that is encouraged (mustahabb) and --
in your case -- it comes under the heading of upholding ties of
kinship, because your brother's daughter is one of your relatives with
whom you are obliged to uphold ties. Itis well known that acts of
kindness towards relatives are superior to acts of kindness
towardsstrangers. An-Nasaa'i (2582), at-Tirmidhi (658) and Ibn Maajah
(1844) narrated from Salmaan ibn 'Aamir (may Allah be pleased with
him) that the Prophet (blessings and peace of Allah be upon him) said:
"Charity given to the poor is charity, and that given to a relative is
two things: charity and upholding the ties of kinship."
Classed as saheeh by al-Albaani in Saheeh an-Nasaa'i.
With regard to what youwant to give to your brother's daughter and
your wife, if you want togive this gift to them when you are still
alive, there is nothing wrong that that, subject to certain
conditions:
1.
That you do that when you are in good health, not when you are sick
and there is the fear thatyou may die, because a gift given in the
latter case comes under the same ruling as inheritance, in that it is
not valid if given to an heir (one who automatically inherits
according to the rules oninheritance), or to a stranger (non-relative)
ifit is more than one third of the wealth, unless the heirs agree to
that.
Shaykh 'Abdullah ibn Jibreen said: It is permissible for the husband,
when he is stillin good health and still alive, to give whatever he
wants to his wife in return for her patience or help, or what he
owesher of the mahr (dowry) or other wealth, so long as he does not do
that inorder to harm the other heirs. He may give her whatever he
wants and it is not limited to one-quarter of his wealth.
The same applies to the wife: she may give her husband whatever she
wants of her wealth or dowry, because Allah says (interpretation of
the meaning):
"but if they, of their owngood pleasure, remit anypart of it to you,
take it, and enjoy it without fear of any harm (as Allah has made it
lawful)"
[an-Nisa' 4:4].
But that is not permissible in the event of illness, because then itis
regarded as a bequest to an heir.
End quote from Fataawa Islamiyyah, 3/29
The scholars have discussed guidelines on illness in which there is
the fear that the individual may die. Shaykh Ibn 'Uthaymeen (may Allah
have mercy on him) said: The illness in which there is the fear that
the individual may die is that in which if the individual dies, it is
not regarded as something rare; in other words, it is nothing strange
if the individual dies from that illness. And it was said that it
refers to that in which it is thought likely that he will die. The
illness in which there is no fear that the individual will die is that
in which if theindividual dies, it is something rare.
End quote from ash-Sharh al-Mumti' 'ala Zaad al-Mustaqni', 11/101
2.
That the purpose of giving this gift should not be to harm the heirs
or deprive them of their inheritance. We have previously explained
that giving gift with the intention of causing harm to the heirs is
haraam and is not permissible. Please see fatwa no. 182290
In fact, what clearly appears to be the case from your question is
that you want to depriveyour brothers and sistersof their inheritance,
hence you want them to give you a guarantee that they will not demand
their rights to the inheritance after youdie. This is undoubtedly
something haraam. It is also haraam for you to do anything with the
intention of harming some of the heirs or depriving them of their
inheritance.
3.
The gift that you want togive to your brother's daughter or to your
wifeshould be handed over during your lifetime, so that they are
incompletecontrol of it and are fullyable to dispose of it as any
owner is able to dispose of his property.
But if you gave this wealth to them on the condition that it would be
handed over to them and come under their control and they would be
able to dispose of it after your death, then this is a bequest, not a
gift. It is not permissible to make a bequest to one's wife, because
she is an heir (who is automatically entitled to a share of the estate
according to sharee'ah), and there can be no bequest to an heir,
because of the report narrated by Abu Dawood(2870), at-Tirmidhi
(2120), an-Nasaa'i (4641), and Ibn Maajah (2713) from Abu Umaamah (may
Allah be pleased with him) who said: I heard the Messenger of Allah
(blessings and peace of Allah be upon him) say: "Allaah has given each
person who has rights his rights, and there is no bequest for an
heir."
Classed as saheeh by Shaykh al-Albaani in Saheeh Abi Dawood.
But if it so happens that the deceased had made a bequest to one of
the heirs, and the other heirs approved of that bequest, then it may
be executed, because the Messenger (blessings and peace of Allah be
upon him) said: "It is notpermissible to make a bequest to an heir
unlessthe other heirs agree."
Narrated by ad-Daaraqutni; classed as hasan by al-Haafiz IbnHajar in
Buloogh al-Maraam
Ibn Qudaamah (may Allah have mercy on him) said in al-Mughni (6/59):
If he makes a bequest to one of his heirs, and the other heirs did not
agree to it, then it is not valid, and there is no difference of
scholarly opinion on thismatter. Ibn al-Mundhir and Ibn 'Abd al-Barr
said: The scholars are unanimously agreed on that, and there are
reports from the Messenger of Allah (blessings and peace of Allah be
upon him) to that effect. Abu Umaamah said: I heard the Messenger of
Allah (blessings and peace of Allah be upon him) say: "Allaah has
given each person who has rights his rights, and there is no bequest
for an heir."
Narrated by Abu Dawood, Ibn Maajah andat-Tirmidhi. But if they (the
other heirs) agree to it, then it is permissible according tothe
majority of scholars. End quote.
With regard to the bequest to your brother's daughter, it is
permissible as she is not one of the heirs. In this case the bequest
to her is regarded as Islamicallyacceptable, so as to ensure that she
will get the money after you die.But it is not permissible to bequeath
to her or to anyone else anything but one third or less, no more than
that. The Messenger (blessings and peace of Allah be upon him) forbade
Sa'd ibn Abi Waqqaas (may Allah be pleased with him) to bequeath more
than one third. al-Bukhaari (2742) and Muslim (1628) narrated that
Sa'd ibn Abi Waqqaas said: O Messenger of Allah, can I bequeath all my
wealth? He said: "No." I said: Then one half? He said: "No." I said:
One third? He said: "Yes, but one third is a lot. If you leaveyour
family well off that is better than leaving them asking of people."
It says in Fataawa al-Lajnah ad-Daa'imah (16/317): It is not
permissible to bequeath more than one third, and a bequest to an heir
is not valid unless the other heirs agree, because of the words of the
Prophet (blessings and peace of Allah be upon him) said: "Allah has
given each person who has rights his rights, and there is no bequest
for an heir." Narrated by Ahmad, Abu Dawood, at-Tirmidhi, IbnMaajah,
and ad-Daaraqutni, who added at the end of it: "unless the [other]
heirs agree." End quote.
Many of the scholars regard it as mustahabb or encouraged for the one
who makes a bequest to bequeath lessthan one third. It says in
al-Kaafi fi Fiqh Ibn Hanbal (2/265): Ibn 'Abbaas said: I wish that
people would bequeath less than one third, because the Messenger of
Allah (blessings and peace of Allah be upon him) said "… but one third
is a lot." Agreed upon. Abu Bakr bequeathed one fifth and said: I am
pleased with what Allah is pleased with for Himself.'Ali said:
Bequeathing one fifth is dearer to me then bequeathing one third. End
quote.
However it should be pointed out that makinga bequest with the aim of
harming the heirs is not permissible, as we have explained in fatwa
no. 74974 .
With regard to your request from your siblings to give up their shares
of what you leavebehind, we do not advise you to do that forseveral
reasons:
1. This instruction is indicative of the intention to deprive them
of their legitimate shar'i rights, and it is well known that this is a
haraam purpose. We have explained above that bequests and gifts aimed
at harming the heirs or denying them their legitimate shar'i right to
inheritance is forbidden in Islam.
2. This instruction could cause alienation and resentment between
you and your siblings. The Shaytaan could take advantage of it to
spoil the relationship between you; he could whisper (waswaas) to your
siblings and instil in their minds the idea thatyou hate them and do
not want them to benefit from your wealth after you are gone.
3. They may agree andgive up their share of the inheritance
unwillingly, out of shyness and embarrassment. It is wellknown that it
is not permissible to use embarrassment to take people's rights away
from them. It says in al-Fataawa al-Fiqhiyyah al-Kubra (3/30):
Do you not see that there is scholarly consensus on the fact that if
something is taken from a person by means of embarrassment, when there
is no willingness on his part, the one whotakes it does not gain
possession of it. The scholars explained that as involving compulsion
using the weapon of embarrassment, which islike compulsion using a
real weapon. In fact many people would accept the real sword and put
up with the injuries it causes when they would not accept the sword of
embarrassment, out of fear for their dignity andstanding which to
whichwise people give precedence and fear greatly for it. End quote.
With regard to the Islamic ruling on the estate, it is as follows.
Firstly:
The costs of preparing the deceased, namely ghusl, shrouding and
burying, should come from his estate. It says in Saheeh al-Bukhaari
(2/77): Ibraaheem said: First of all comes (the cost of) the shroud,
then paying of debts, then bequests. Sufyaan said: The cost of the
grave and ghusl come under the heading of shrouding. End quote.
Secondly:
After preparation of the deceased, his debts should be paid off from
his estate, if the deceased owes any debts. Then any bequests that he
made should be given, up to a limit of one third or less, because
Allah, may He beexalted, says (interpretation of the meaning): "…after
the payment of legacies he may have bequeathed ordebts" [an-Nisa'
4:11].
Thirdly:
The estate is to be divided among the heirs according to the rulings
of sharee'ah. With regard to your estate in particular, the
inheritance is to be divided among your wife and your siblings, ifyou
die before them. Your wife is entitled to one quarter of the
estatebecause you have no children to inherit from you. Allah, may He
be exalted, says (interpretation of the meaning):
"their (your wives) shareis a fourth if you leave no child; but if you
leavea child, they get an eighth of that which youleave after payment
of legacies that you may have bequeathed or debts"
[an-Nisa' 4:12].
The rest of the estate goes to your siblings, with each male getting
the share of two females; in other words, the brother gets twice
asmuch as the sister.
To sum up:
What we advise you to do is to make a bequest to your brother's
daughter whom you have adopted, giving her something from your legacy
that is no more than one third, which she will receive after your
death, or you can give it to her whilst you are still alive.
Your wife is entitled to one quarter of your estate on the basis of
inheritance. If you are afraid that she will not be given her rights
after you die, then you can give that to her whilst you are still
alive.
If you want to denote some of your wealth to charity whilst you are
still alive, and you are not suffering from illnessthat is likely to
lead to your death, then you may donate whatever you want, but do not
neglect the rights of your heirs who will come after you or deprive
them of taking some of your wealth.
And Allah knows best.
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