Imam Ilyas Sidyot

Questions and Answers

Question: 008

Aslam alikum

I would like to know if a will was made out and things change in there over the years, like my mom had a house when she made out her will but a few years later she sold the house and came to live by me which I just bought a house.

She gave me an amount of money and told me to use it as part of my deposit for my house. She now pass on and in her will stated that if she still have a house then the house must be sold and the money must be given to the grand children, but she now don't have a house when she pass on do I need to pay the money back that she has given me even though she never said that I have to pay it back, and is it right that kids want it and that is must not go to the grand children.


Answer:

Assalāmu `alaikum Warahmatullāhi Wabrakatuh,

 Sharīah has emphasized on drawing up ones will.

مَا حَقُّ امْرِئٍ مُسْلِمٍ لَهُ شَيْءٌ يُوصِي فِيهِ، يَبِيتُ لَيْلَتَيْنِ إِلَّا وَوَصِيَّتُهُ مَكْتُوبَةٌ عِنْدَهُ

῾Abdullah ibn ῾Umar radiallahu ῾anhu narrates that Rasulullah salallahu ῾alayhi wasallam said,

It is not appropriate for a muslim who has something to make a bequest for, 
that he spends two nights except that his bequest is written by him. (Sahīh Bukhāri #2738)

The Fuqahā’ have ruled that it is Mustahab (desirable) to draw up ones will and bequest. That is if one does not have any Sharī obligation on him. For example, he does not owe people money, or people do not owe him money or he does not have people’s trust in his possession. If he has a Sharī obligation on him, for example he owes people money or people have entrusted things in his possession, it is wājib to make a will and record this in his will.

لَكِنْ إِنْ كَانَ عَلَى الْإِنْسَانِ دَيْنٌ أَوْ وَدِيعَةٌ لَزِمَهُ الْإِيصَاءُ بِذَلِكَ

…however if there is any debt of item or trust upon a person, 
then it will be binding for him to make a bequest for that…

(Hāshiyatut Tībī alal mishkāt il masabīh)

Death is imminent. Therefore one should draw up ones will as soon as possible. If a person missed some Fardh Salāh or did not discharge his Zakāh, he should record all that. It is possible that a person being conscious of his Sharī obligation of drawing a will and conscious of death draws his will but outlives the will. He may have recorded his missed salāh but made up for some missed salāh. He may have recorded a debt but paid for it or received payment.

He will have to adjust his will accordingly to reflect the correct position of these issues in his will.

وَإِنْ تَجَدَّدَ لَهُ أَمْرٌ يَحْتَاجُ إِلَى الْوَصِيَّةِ بِهِ أَلْحَقَهُ بِهَا

…and if the matter which requires a bequest changes (from its recorded state) 
then he shall revise it (bequest)…

(Hāshiyatut Tībī alal mishkāt il masabīh)

Reverting to your query, your mom recorded having a house in her will and bequeathed the proceeds of the sale of the house to the grandchildren.

As a principle, a bequest can only be made for a non-heir to a maximum of one-third of the Nett Estate. If the proceeds of the house was within one-third of the Nett Estate and the grandchildren are not heirs, then the bequest was valid.

If the proceeds of the sale of the house exceeded one-third of the Nett Estate, the excess amount will not be valid.

Similarly, if the grandchildren were heirs, the entire bequest will not be valid.

Nevertheless, your mom sold the house and now does not own the house. Therefore the issue of the bequest falls away. She will have to adjust her will accordingly. The money she gave you for deposit of your house is a gift to you. You do not have to return that money to her estate. Her children cannot claim that money from you.

(قَوْلُهُ: هُوَ الْإِيجَابُ) وَفِي خِزَانَةِ الْفَتَاوَى: إذَا دَفَعَ لِابْنِهِ مَالًا فَتَصَرَّفَ فِيهِ الِابْنُ يَكُونُ لِلْأَبِ إلَّا إذَا دَلَّتْ دَلَالَةُ التَّمْلِيك بِيرِيٌّ.  قُلْت: فَقَدْ أَفَادَ أَنَّ التَّلَفُّظَ بِالْإِيجَابِ وَالْقَبُولِ لَا يُشْتَرَطُ، بَلْ تَكْفِي الْقَرَائِنُ الدَّالَّةُ عَلَى التَّمْلِيكِ كَمَنْ دَفَعَ لِفَقِيرٍ شَيْئًا وَقَبَضَهُ،  )الدر المختار وحاشية ابن عابدين (رد المحتار) 5/ 688 (

(قَوْلُهُ: بِالْقَبْضِ) فَيُشْتَرَطُ الْقَبْضُ قَبْلَ الْمَوْتِ  )المرجع السابق 5/ 690 (

And Allah Ta'āla Knows Best,

 

Muftī Ebrahim Desai

Daruliftaa
35 Candella Rd, Durban, South Africa

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