I am a convert thru marriage. This is my second marriage. I have a daughter from my first marriage who is not Muslim. My current wife and me are in talks about separation. My question is, in event of my dead, can my will states that my daughter received my whole estate and my non-Muslim parents be in charge of the estate till she comes of age? I have no heirs from my second marriage. Thank you.

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, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.

You should know, dear brother, that the Islamic ruling on the validity of making a will for your daughter and assigning guardianship over her to your parents depends on whether she is judged a Muslim or a non-Muslim. If your words “who is not Muslim” refer to your daughter, then the matter entails further investigation, because if she has not yet reached puberty - as we understood from the question - then, in principle, she is considered a Muslim because young children are associated with Islam through subordination (they are associated with the superior religion of their parents). For more benefit, please refer to Fatwa 81957.

Moreover, every child is born on the Fitrah (sound natural disposition upon which Allaah created mankind, i.e. Tawheed [monotheism]). Therefore, in principle, she is considered a Muslim according to the Sharee'ah. The Fiqh Encyclopedia reads, “Muslim jurists unanimously agree that if a father embraces Islam, his young children – or those who have the same legal status, such as an insane person who has reached puberty while in his state of insanity - are associated with Islam through subordination (to the Muslim father) according to the Sharee'ah. The majority of scholars (the Hanafis, Shafi‘is, and Hanbalis) maintained that if either of the parents is Muslim, the young children are considered Muslims; they are associated with Islam through subordination. This is because Islam is always superior and should never be surpassed; it is the true religion that Allaah chose for His slaves.”

Accordingly, if your daughter is judged a Muslim according to the Sharee'ah, then this entails that it is impermissible to will your estate to her and that making a will to grant guardianship over her to your non-Muslim parents is invalid.

It is impermissible for you to make a will for her in this case because she would be already among the eligible heirs entitled to inherit. It is impermissible to make a will to an heir because Allaah, The Exalted, has already specified a share for him/her in the inheritance. There is no need for a will in this case. Therefore, the jurists underlined that it is disliked to make a will leaving something to an heir, while others held that it is forbidden. They all agreed, though, that such a will should not be fulfilled without the consent of the other heirs.

The Hanbali book Sharh Al-Muntaha reads, “It is impermissible to leave a will for an heir based on the Hadeeth reported on the authority of ‘Amr Ibn Khaarijah that the Prophet, sallallaahu ‘alayhi wa sallam, said: “Allaah has appointed for everyone who has a right what is due to him; so no will is to be made to an heir.” [Abu Daawood, Ahmad, At-Tirmithi and Ibn Maajah, and it is also by reported on the authority of Abu 'Umaamh Al-Baahili by Abu Daawood, At-Tirmithi and Ibn Maajah] However, this impermissible will for an heir becomes valid with the consent of the other heirs based on the tradition reported on the authority of Ibn ‘Abbaas as attributed to the Prophet : “It is impermissible to make a will leaving something to an heir except with the consent of the other heirs.”[Ad-Daaraqutni] ‘Amr ibn Shu‘ayb reported on the authority of his father from his grandfather (i.e. Abdullaah Ibn 'Amr), “There is no will for an heir except if the heirs allow it.” [Ad-Daaraqutni: Marfoo’ (i.e. attributed to the Prophet )] Also, the reason for forbiddance is that it involves the rights of the heirs, so if they approve it, it is to be fulfilled.” [End of quote]

Also, it is impermissible to assign guardianship over your Muslim daughter to your non-Muslim parents because a non-Muslim cannot be a guardian over a Muslim. One of the conditions of the validity of guardianship over a Muslim is being a Muslim according to the consensus of Muslim scholars. The Fiqh Encyclopedia reads: “Muslim jurists (the Hanafis, Maalikis, Shafi‘is and Hanbalis) unanimously agreed that it is impermissible to assign guardianship over a Muslim to a non-Muslim based on the verse that reads (what means): {… and never will Allaah give the disbelievers over the believers a way [to overcome them].} [Quran 4:141]”

On the other hand, if it is proven that your daughter has favored disbelief to belief and converted to another religion after reaching puberty or at the age of discerning before reaching puberty, then it is allowable for you to make a will for her because in this case she is not among the eligible heirs as clarified in Fatwa 101240 and you can also appoint your non-Muslim parents as guardians over her. The majority of jurists held that the apostasy of a discerning child – before reaching puberty - is taken into consideration by the Sharee'ah, as highlighted in The Fiqh Encyclopedia, “As for his apostasy, the majority of scholars held that it is has legal implications. However, he is not subject to the Hadd (corporal punishment prescribed by the Sharee'ah) for apostasy until he reaches puberty. If he does not repent of that sin, then he is to be killed (for apostasy).”

Allaah Knows best.