Q. Before his death, a man called in his sons and told them that he wished to leave his house to his only daughter, and they agreed to his request. Those of them who were present signed affidavits to this effect, but some were abroad. After the man’s death, one of his sons felt that he did not get a fair share. Another now feels that his father did not do the right thing in accordance with Islamic law. He accepts his father’s wish, but he feels it is better to let things be done according to Islamic law. Please comment.
M. Waheed
A. The man’s action could be considered from different angles. If we were to treat it as a gift given by a father to one of his children, then it is unfair to his other children who should receive a similar gift each. But most probably the man did not intend this. He wanted to ensure that his daughter would be in a good position after his death. He might have considered that his sons are in more or less good positions. Perhaps one or two of them are not doing as well as the others, but nevertheless, they are capable of looking after their families. So, he wanted his daughter to be similarly positioned. So, he left her the house as an extension of her share of inheritance.
If we take it in this light, we say it is not up to the father to do so unless all the heirs agree to his action. This is why he called his sons and told them of his desire. They agreed to his action. From the Islamic point of view, their agreement must be restated after their father’s death. In other words, they are free to go back on what they said to their father. This is due to the fact that in some situations, children cannot disagree with their father, because of the way he brought them up. Or they may feel, as in this case, that the man was on his deathbed, and that he was too ill to argue with. I understand that one of them did not say a word because he felt it would upset his father when he was too ill.
Because of all these considerations, Islam requires that such a request be put back to the heirs after the man’s death, so that it would be clear if they genuinely agree to the deceased’s request, without any pressure. If they do, then the bequeath goes ahead. If any of them does not, then he or she is entitled to their full share of inheritance, as though there was no such gift.
This means that those children of the deceased man who want to carry out their father’s wish of leaving the house to their sister will continue to do so. The one who does not wish to do that may claim his share in the house. His share might be valued and his sister may buy it from him so that the house will be hers. There should be no friction between the heirs as each one is free to claim his or her share in full.
I should add that the brothers would be doing a highly honorable deed if they relinquish their shares in the house to their sister. If they do so, they will be doing an act of dutifulness to parents, since they will honor their father’s wish. They will also show kindness to their sister, which is richly rewarded by God. However, any of them who, because of his dire financial situation, may not be able to do so, and he is free to say so and claim his full share.
