By Mufti Muhammad ibn Adam al-Kawthari
Question:
What are the rules for making such a will, if one would like to make one? For a woman who has a husband, one son, three brothers, and whose both parents are alive?
Answer:
In the name of Allah, Most Compassionate, Most Merciful,
Writing and preparing a will is undoubtedly very important, especially in non-Muslim countries, insuring that upon death, one’s wealth and assets are distributed according to Islamic law.
Sayyiduna Abd Allah ibn Umar (Allah be pleased with them both) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “It is not befitting for a Muslim who has something to make a will of, to stay for two nights without having his last will and testament written and kept ready with him.” (Sahih al-Bukhari, no. 2587)
However, this does not mean that one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the will that “upon my death, my executors will distribute my wealth according to Sunni Islamic law”. One may also state that this will be determined by a Muslim scholar or Mufti who will be contacted and appointed by my executors.
The reason behind this is that, the inheritance portions have been determined and allotted by Allah Most High in the Qur’an. These portions vary according to who is alive at the time of one’s death. Death with leaving parents behind will differ from passing away after the parents have passed away, in that the inheritance portions will vary in both cases.
As such, one cannot determine in one’s life for sure as to how many portions exactly will be allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in division and distribution.
Therefore, normally when making a will, one would stipulate the following:
1) Payment of funeral and burial expenses,
2) Payment of all debts,
3) Payment of any bequest (wasiyya) from one third of one’s wealth, including any religious liabilities, such as unpaid Zakat, fidya, etc.
4) Distribution of the remaining assets and wealth in accordance with Sunni Islamic law among the inheritors, in consultation with a qualified scholar or Mufti.
In light of the above, it becomes clear that one’s wealth will be divided at the time of one’s death and not before. However, one must make a will stating that his/her wealth and assets be distributed in accordance with Islamic law.
You have asked regarding making a will for a woman who has a husband, one son, three brothers and both parents. The answer is clear from the above explanation that one can not be sure of the portions at this moment and time, for if her parents pass away before her, then the distribution she makes will not be valid anymore. Similarly, she presently has one son, thus if she has more children in future, this too will have a bearing on distribution.
However, if a woman was to pass away leaving behind the above mentioned inheritors, her wealth, estate, assets and everything else she owns will be divided and distributed in the following manner:
After paying for the funeral expenses, debts and fulfilling the bequest (from one third of the wealth), her total wealth will be divided into twelve (12) parts, of which her father and mother both will receive two (2) shares, her husband three (3) shares and her son five (5) shares. Her three brothers will not receive anything.
Therefore, the shares of the inheritors will be distributed as follows:
The deceased’s:
Father = 2 shares
Mother = 2 shares
Husband = 3 shares
Son = 5 shares
__________________
Total = 12 Parts
And Allah knows best
Muhammad ibn Adam
Darul Iftaa
Leicester , UK
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