Question # 136: If a woman dies but not left a will? How would that be dealt with. The sister is single no children but has 2 brothers and many sisters but she was close to 2 of her nieces who she did say that if I do die my things would go to such person and parents or does the brothers have right over it.
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: It is incumbent upon every Muslim to write an Islamic Will, if he/she possesses something worth bequeathing or if he/she lives in a non-Islamic country, where the Islamic Laws of Inheritance are not recognized and therefore, estate on the death of such Muslim may not be distributed in accordance with the Islamic law.
From the information provided in the question, the inheritance shares will be as follows: Mother: 1/6 (16.67%), Father: 5/6 (83.33%); after the settlement of debt owed by the deceased, funeral expenses and the execution of deceased’s will. The siblings will not inherit anything as they are excluded by the presence of father.
As for bequeathal of estate to other than the legal heirs, one may bequeath one-third of the entire estate in his/her Will, but it is better not to exceed one-fourth. So, it was possible to bequeath to the two nieces; however, in the absence of a written Will, the burden to establish an Oral Will can be very heavy in the court of law.
IMPORTANCE OF WRITING AN ISLAMIC WILL (WASIYYAH)
The importance of the Islamic will (wasiyyah) is clear from the following two ahadith:
- It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it. (Sahih al-Bukhari)
- A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” (Ahmad and Ibn Majah)
The Islamic Jurists also have a maxim or principle stating: “If the obligatory (waajib) deed that can only be fulfilled by a non-obligatory deed that makes the non-obligatory deed, obligatory (waajib).”
From this, it can be derived that in general, it is not obligatory for a Muslim to make a Will. However, it becomes incumbent upon every Muslim to have an Islamic Will in the following circumstances:
- If he/she possesses something worth bequeathing;
- If he/she lives in a non-Islamic country, where the Islamic Laws of Inheritance are not recognized and therefore, estate on the death of such Muslim may be distributed in discord with the Islamic law.
DIVISION OF INHERITANCE
It should be remembered that in all cases of Mirath (inheritance), the debt of the deceased must be settled, funeral expenses paid and the deceased’s will executed before distribution of the remaining estate.
Following the Qura’nic text, the shares will be as follows: Mother: 1/6 (16.67%), Father: 5/6 (83.33%).
The siblings will not inherit anything as they are excluded by the presence of father. Ibn Kathir (may Allah have mercy on him) said: “…If parents are present along with siblings, whether they are from both parents or from the father or from the mother; they do not inherit anything…, but despite that they change the share of the mother from one-third to one-sixth… If there is no heir apart from her and the father, the father gets the remainder (of the estate).” (Tafsir Ibn Kathir) as Allah (سبحانه و تعالى) says in the Qur’an: “For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth” (Soorah an-Nisa’a ,4:11)
Sa‘d Bin Abi Waqqas (رضي الله عنه) narrated that he was with Allah’s Messenger (صلى الله عليه و سلم) in the Farewell Pilgrimage. He was struck by a severe illness in Makkah, and felt that he was close to death. The Messenger (صلى الله عليه و سلم) visited him, and he said to him, “O Messenger of Allah, I am reduced to this state because of illness. I have a vast wealth, and no heirs except a daughter. Should I bequeath two thirds of my estate?” He (صلى الله عليه و سلم) replied, “No!” He said, “One half of my wealth then?” He (صلى الله عليه و سلم) replied, “No!” He said, “One third of my wealth then?” He (صلى الله عليه و سلم) said: “Yes, one third; and even one third is too much. Indeed, O Sad, you’d better leave your inheritors rich after you than leave them as a burden, begging people (and he (صلى الله عليه و سلم) expressed this with a motion of his hand)…” (Al-Bukhari, Muslim, and others)
To this, Ibn ‘Abbas (رضي الله عنه) said: “I wish that people would reduce their bequests from one-third to one-fourth, because the Prophet (صلى الله عليه و سلم) said that even one-third is too much.” (Al-Bukhari, Muslim, and others)
Among the things, we learn from the above hadith are the following:
- The most that one may bequeath in his will is one-third of the entire estate, but it is better not to exceed one-fourth.
- If one maintains a sincere intention of pleasing Allah through helping the individual to whom he bequeaths, his bequeathal will count as a sadaqah that will benefit him after death.
- The inheritance is a means that Allah made for supporting one’s nearest kin. One should not rob them of this right or cause them to fall into poverty after him.
- The amounts and shares of the estate that go to the children, spouses, parents, siblings, or further relatives have been ordained by Allah the Most Wise. One may not challenge that by proposing alternative shares that seem more reasonable to him — thereby imposing his limited knowledge and experience over the unbounded knowledge and wisdom of Allah (سبحانه و تعالى). (‘The Final Bequest: The Islamic Will & Testament’ by Muhammad Al-Jibali)
Next, since the Will is not in a written form, the burden to establish an Oral Will in the court of law can be very heavy. According to Wikipedia, “a minority of U.S. states (approximately 20 as of 2009), permit nuncupative [(verbal)] wills under certain circumstances. Under most statutes, such wills can only be made during a person’s “last sickness,” must be witnessed by at least three persons, and reduced to writing by the witnesses within a specified amount of time after the testator’s death. Some states also place limits on the types and value of property that can be bequeathed in this manner…”
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.