Q. "On
page 5 of the october, 1993 issue of ALBALAGH I have read with interest
the commentary on Verses 180-182 and particularly the Hadith narrated
by Sayyidna Ibn Abbas (R.A) and the conclusion given which purports to
make it permissbile for an inheritor to receive more than his/her share
if all inheritors allow the enforcement of a will which names an inheritor
to receive more than his/her share.
From previous issues several months back and from other material read,
it was my understanding that only one third of the total net assets can
be giffted as part of a will to non-inheritors and that no allownces in
gifts can be made to normal inheri- tors where their share would exceed
that which is ordained by ALLAH. Please comment on this aspect of inheritence,
laws and remove any confusion or misconception that has cropped up in
my mind and possibly in other readers's minds too.
Your prompt attention to this request will be much appreciated. Thank
you and Jazakallah." (Muhammad
Hussain Chand Karachi)
A. Answer to your question is very simple. Islamic law of inheritence
does not permit a person to make a will in favour of any one of his legal
heir so as to increase his share in the property of the deceased to more
than the share prescribed for him by the Shari'ah. But this limitation
has been imposed only to protect the rights of other inheritors, because
any increase in the share one hair would violate the rights of the remaining
heirs whose shares would be reduced. However, if all other inheritors
are sane and major, they can waive their right in favour of some other
inheritor.
Therefore, if a deceased person has made a will in favour of one of his
legal heirs, and all other inheritors, being sane and major, have consented
to enforce it, there is no bar in Shari'ah against its enforcement, because
the restriction was meant to safeguard the rights of all the legal heirs
and if they themselves have waived their rights, there is no violation
of any right in its enforcement. It will be like a gift made by them in
favour of the legatee. It is this principle that has been enunciated in
the Hadith of Sayyidna Ibn 'Ab- bass (R.A) quoted in Ma'ariful Qur'an
in the following words:
"There is no will for any inheritor unless all inheritors permit."
But it should be kept in mind that the permission of other inheritors
will be efective if they have given such permission after the death of
the testator. The permission given in his lifetime is not a valid permission
unless it is confirmed after his death.
Similarly, the restriction that a person cannot bequeath more than one
third of his property is also meant for the protection of the rights of
the legal heirs. But if all of them, being sane and major, are agreeable,
a will of more than one third of the property can also be enforced. For
example, if a person has bequeathed one-half of his property to a mosque,
and all the legal heirs are agreeable to enforce it, they can do so, but
in this case the thawab of one third will go to the decreased and the
thawab of the remaining one eighth will be deserved by his legal heirs
who have foregone this part of their share for a mosque.
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