Question
A man specifies in his will that his property 'A' should be for his son Zaid, and property B for his son Amr. At the time of distribution of the assets, the values of the properties must be taken into account to ensure that both sons obtain their equal shares according to the Shariah. If the one property has a greater value, then the son who gets this property should pay the excess to the other son. Is this will valid in the Shariah? His reason for this is to save the sons from fighting over the properties.
Answer
The manner in which the man desires his estate to be distributed after his demise is not permissible. He may not stipulate such conditions. When a man dies, every heir has his/her proportionate share in every asset of the estate. The man may not set out that a certain asset will be for a certain heir and another asset for another heir.
Regardless of his intention, he has no right to exercise control from his grave over what was once upon a time his property. When a man dies, his temporary ownership is immediately extinguished, and the ownership of the heirs is automatically established. The father may only give the children naseehat and warn them of Allah's Athaab. His only obligation is to leave an Islamic Will, and appoint pious executors who will ensure that his estate is distributed in terms of the Shariah.
- Source
- themajlis.co.za
- Published in
- The Majlis Vol 21 No 06
- PDF page
- 3
Appears under Questions and Answers (approximate).