How to handle bequest in favor of heir
Fatwa No: 323890

Question

Assalaamu alaykum. Please calculate the inheritance according to the following information - Does the deceased have male relatives who are entitled to inherit: (A son) Number 4 - Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 6 - The will which the deceased left behind and that is related to his inheritance is: That one house goes to the youngest daugther. The other house goes to the son of the youngest son.

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  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The deceased's bequest that a house goes to his youngest daughter is not binding because it is a bequest in favor of an heir. A bequest made in favor of an heir is forbidden under Islamic law and cannot be effective except with the consent of all heirs. For the consent of the heir to be valid, he must be a mature adult. If a mature adult heir gives his consent to the execution of this bequest, then the bequest should be implemented as far as his share is concerned. If other heirs do not approve the bequest, then they are given their shares in full.

The deceased's bequest that a house goes to his grandson, if confirmed, is valid and binding because he is not among the heirs. However, such a bequest should not exceed one-third of the estate; if it does exceed one-third, then it requires the consent of the heirs, as has been highlighted above. If the value of the house does not exceed one-third of the deceased's estate, then it should be given to the grandson, and the heirs have no right to object or deny him his right to it. If the value of the house exceeds one-third of the estate, then the grandson is entitled to what is equivalent to one-third (of the estate) only; the rest of the house is not to be given to him unless the heirs give their consent to give the whole house to the grandson. If some of the heirs agreed while some disagreed, then the bequest is effective in regard to the share of those who agreed, so their share is waived from that house. As for those who did not agree, then they have the right to take their rightful share from the house. 

Please refer to fataawa 312970 and 275335 about the bequest made in favor of an heir. Also, please refer to fatwa 2423980about the way to confirm a bequest.

If the deceased left behind four sons and six daughters only (no parents, grandparents, or a wife), then the estate should be divided among his children by virtue of taʻseeb (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 gets double the share of the female. Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females...} [Quran 4:11]

Hence, the estate should be divided into fourteen shares; each son gets two shares and each daughter gets one share.

Allaah knows best.

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