Making bequest for some heirs apart from others
Fatwa No: 336970

Question

My father has made a family settlement deed in which we all brothers take a 25%-share. We are three brothers and our father will keep 25% for himself up to his death. After his death, he wrote that his 25%-share goes to his two sons and not the third son. He ignore his third son. I want to know whether it is permissible for him to do this according to the Sharia. Please do answer.

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.

If your father has children other than the three sons regarding whom you mentioned that he had given each of them 25% of his wealth, then what he has done is not permissible because, according to the most preponderant opinion of the scholars, favoring one child over another when gifting them is not permissible without a legitimate reason, as the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said, “Fear Allaah, and be just when gifting your children.” [Al-Bukhari and Muslim]

However, if he has no children other than yourselves, then what he did is permissible, and there is nothing wrong with it as he dealt between you equally.

As regards his will to some of his children, then it is not valid, as the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said, “Verily, Allaah has given every rightful person his right, so there is no bequest for an heir.” [At-Tirmithi]

Besides, Ibn ‘Abbaas  may  Allaah  be  pleased  with  him narrated that the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said, “A will for an heir is not permissible unless the heirs agree to this.Ibn Hajar considered its Isnaad (chain of narrators) to be hasan (good). A similar hadeeth was reported by Al-Bukhari from Ibn ‘Abbaas  may  Allaah  be  pleased  with  him.

To conclude, the gift that your father had given to his sons is permissible and effective, but his will for some sons (apart from others) is not valid, and it is not effective unless the other heirs agree to it, provided they are adult and of sound mind. For more benefit, please refer to fatwa 119243.

Allaah knows best.

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