Fathwa, - He wrote a house in his second wife's name before his death

Question
Assalaamu 'Alaykum; Please calculate the inheritance according to the
following information -Does the deceased have male relatives who are
entitledto inherit: (A son) Number 5 -Does the deceased have female
relatives who are entitledto inherit : (A daughter) Number 5 (A wife)
Number 1 - Additional information: Assalamu alaikum, My father did
second marraige after hisfirst wife died. From his first wife he had 3
sons and 3 daughters. and from second wife 2 sons and 2 daughters. Am
from second mother. When my father was alive he wrote house in my
mother name, in which we are staying. Now he is no more. My other
brothers(Sons of first mother) they are demanding share from my mother
from this house. How we have to divide the share. What precations to
be taken, please guide me.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify
that there is none worthy of worship except Allaah, and that Muhammad
isHis slave and Messenger.
If the deceased did not leave any other heir except those mentioned in
the question, then his wife gets one-eighth of the inheritance as her
legal share due to the existence of direct heirs (children); Allaah
says (what means): { But if youleave a child, then for them [i.e. the
wives] is aneighth of what you leave,after any bequest you [may have]
made or debt. } [Quran 4:12]
The remainder will be divided amongst the sonsand daughters by
Ta'seeb(by virtue of having a paternal relation with the deceased and
not having an allotted share, so they get what is left after the
allotted shares have been distributed); the male twice the share of
the female as Allaah says (what means): { Allaah instructs you
concerning your children[i.e. their portions of inheritance]: for the
male, what is equal to the share of two females. }[Quran 4:11]
Therefore, the inheritance should be divided into 120 shares, the wife
gets one-eighth,which is 15 shares, each son gets 14 shares, and each
daughter gets 7 shares.
As regards the house whom the deceased had written in the name of his
wife, then if he had done so as a will that she takes after his death,
then this is a will for an heir and it is forbidden inIslam. This will
cannot be effective except after the consent of all the other heirs
for the Hadeeeth of Abu Umaamah Al-Baahili who said: " I heard
theMessenger of Allaah saying: ' Verily Allaah has given every
rightful person his right, so there is no bequest for an heir. ' This
was related by Ahmad , Abu Daawood , Ibn Maajah , and At-Tirmithi .
Ahmad and At-Tirmithi deemed it Hasan (good). Ibn Khuzaymah and Ibn
Al-Jaarood deemed it strong. Ad-Daaraqutni reported it from Ibn
'Abbaas but added at the end of it: ' Unless the heirs agree to this
'. Ibn Hajar considered its Isnaad (chain of narrators) to be Hasan.
Therefore, if your half-brothers from your father's former wife do not
agree to make this will effective, then they have the right to take
their share from the house and it is not permissible for your mother
to prevent them from their right.
On the other hand, if the deceased had written thehouse as a Hibah
(gift) to his wife, not as a will to be effective after his death,
then if he had gifted it to her during hisdeath sickness, then this
gift is not effective because the gift during death sickness takes the
same ruling of the will [i.e. not effective and forbidden]. Ibn
Al-Munthir said: " All the scholars whom I know their statements
agreed that the ruling of gifts during the illness in which the donor
died hasthe same ruling as the will; this is the view of Al-Madeeni,
Ash-Shaafi'i, and Al-Koofi. " Since it has the same ruling as a will,
then the previous explanation applies to it that it is not effective
except with the consent of the other heirs.
However, if the deceased had gifted the house to his wife while he was
in good health and he was not during an illness that might cause him
to die, then a man gifting the house where he lives to his wife is not
consideredan effective gift until he himself goes out of it
(thehouse), and takes all his belongings from it and she takes
possession of the house and disposes of it as if it was her own
property, so if he had notdone so and he lived in itwith her until he
died, then it becomes inheritance that should be divided among the
heirs like all his other wealth, and in this case the gift is
considered void as stated by some jurists.
Allaah Knows best.

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