Question

Asalamualaykum,
My question relates to inheritance
The facts are as follows
The parents have 4 sons and 2 daughters. The assets owned were a house and some money in the bank. The father passed away 40 years ago. When alive it is claimed by the 3 of the sons that he verbally wanted all he assets to be distributed between his sons and never mentioned his 2 daughters. No Islamic will was made by the father at the time nor did he physically put any asset or money in anyone’s name at the time. The mother passed away some 20 years ago and again allegedly according to 3 sons the mother had said all assets were to go to the sons and that the 2 daughters were to get nothing. The 3 brothers have split the assets between all 4 brothers and given nothing to the 2 daughter. I ( being the 4th brother) am opposed to what the 3 other brothers have done as I believe both daughters are entitled to one share as stated in the shariat. My understanding is that even if the parents had said nothing was to go to the daughters but if they physically did not transfer any assets or leave a will then despite what the parents had said in their lifetime the daughters are entitled to one share of the estate and each brother 2 shares. I believe my 3 brothers are in grave error by excluding my 2 sisters from the estate. Can you please confirm if my view point is the correct one and if not please state the correct position according to Sunni Hanafi Mazhab. Jazakalla.

Answer

If the father during his lifetime gifted the assets to his sons and the sons accepted the gift and also took possession of the assets then the assets will transfer to their ownership. If they did not take possession of the assets during his life time then the assets will not transfer to their ownership.

Also, if the father just expressed a wish to gift the assets without going through with the gift transaction or wished for the assets to be given to his sons after his death, then the assets will remain part of the father’s estate and will be distributed amongst his heirs. This would be the case even if he left a will stating that his asset’s should go to his sons only. The reason for this is that a person can only will 1/3 of their estate, and this 1/3 cannot be given to those who will already inherit from the remaining 2/3.

Answered by:
Ifta Research Fellow

Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel