Q. Our parents died 20 years ago, leaving behind three sons and four daughters. One of the sons and two daughters have died since. We bought a plot of land, with 40 percent of the price provided by our mother and the balance by the two surviving sons. These two also paid for the construction of our house. During her lifetime, our mother always said that only 40 percent of the house should be divided among all her children, and 60 percent should go to the two sons who made the contributions. Now we want to sell, giving the equivalent of the present-day cost of building and 60 percent of the present day value of the land to the two sons who paid for these and dividing the rest among all children, giving two shares to a son and one to a daughter. Objections are raised by the widow of our deceased brother and the husbands of our deceased sisters. They maintain that the division should be of the total price. Please advise.
Z. Hassan
A. This is a very complicated case, not because of the figures of investment involved, but because ever since the house was built, the main beneficiaries of its use were the two sons who provided the funds for buying the land and the building of the house. If you were to divide the price of the house on the basis you have mentioned, then these two sons would have lived in the house for all these years for free, while they tied up the portion due to their late brother and their four sisters. This is unfair to those others. At the same time, if you do as your in-laws are saying, disregarding what the two sons provided, and dividing the whole price among all heirs, you will be unfair to these two, because without their funds no house would have been built.
How do we sort out this complicated problem? We have to work on the basis of a clear Islamic principle, which states: “To forgo what is due to you is closer to being righteous. Do not forget to act benevolently to one another. God sees all that you do.” (2: 237) Acting benevolently is the key word in this principle, and forgoing what is due to oneself in order to maintain close family and social relations will be highly rewarded by God. This means in your case that the two sons who provided the funds should be benevolent to their brother and sisters, and the others should be generous with these two. All should be ready to compromise and forgo a little here or a little there. Working on the basis of this principle, the surviving children of this family, i.e. the two sons and the two daughters, should sit together and review the whole situation, looking also at the families of their deceased brother and sisters. They should consider the conditions and the means of all these, looking at who is in need and who is well off. They will be then in a position to decide how to make a fair distribution that looks at needs. For example, if their deceased brother has left behind young children who need to be educated, and their mother has limited means, the two brothers who paid for the construction of the house should look after these children and their education. If giving them a larger share of the price of the house will help to make them self-sufficient, then they should give that. On the other hand, these two brothers may themselves be in need of funds. It all depends on how to provide the fairest distribution in the circumstances.
Having said that, I reiterate that this is all a question of generosity and benevolence, which is richly rewarded by God, not merely on the Day of Judgment but also in this life. However, the question of the inheritance shares remains unsolved. I cannot provide a clear-cut answer because of the complication of the use of the house in the 20 years since it was built.
Any formula may be as good as any, provided it looks at who benefited by the house. Assuming that all daughters lived in the house until they were married and the two sons always lived there, then these two sons have made a good return on their investment. I suggest in this case that the two sons should take the original amounts they paid for building the house and buying 60 percent of the land, while the balance should be divided among all brothers and sisters, at the rate of 2 shares to a son and one share to a daughter.
This means 10 shares, two to each of the three sons and one to each of the four daughters, the deceased ones included. Thus, the appreciation of the value of the land and the house is given to all, while the original amount of the investment is returned, and the use of the house is the benefit of that investment. There may be other formulas, which look at the present situation in a better way, but this can only be determined on the basis of a full picture of the situation, which is not available to me.