Wasiyyah and inheritance query – Grandchildren’s inheritance

Waṣiyyah and inheritance query – Grandchildren’s inheritance

Question

If a deceased person has a few sons, and one of them has already died before him and has children, will the grandchildren be entitled to inheritance? If the deceased wrote a will for his grandchildren, is this will acceptable in Islam? Please can you clarify the matter because some people believe that the grandchildren should be entitled to inheritance from a logical perspective.

بسم الله الرحمن الرحيم

Answer

If a person dies before his father and has brothers and children, and thereafter his father dies, his children (the grandchildren) will not be entitled to inheritance. Accordingly, it is permissible for the grandfather to make a waṣiyyah (will) for his grandchildren, and indeed for any other grandchildren, on the condition that the will does not exceed one third of the wealth.

Rules of waṣiyyah (will)

There are two fundamental rules of waṣiyyah (will) to bear in mind:

(1) Firstly, it is prohibited to make a will for anyone who will automatically inherit from the deceased according to Islamic law, and if someone does so, it will be deemed void. The inheritors generally include the parents, spouse and children although this differs from case to case. The Prophet ﷺ said:

إن الله قد أعطى كل ذي حق حقه فلا وصية لوارث

“Verily, Allah has given every person with a right his due, so there is no bequest for an inheritor.”[1]

(2) Secondly, a waṣiyyah (will) is only permitted in one third of the wealth. The Prophet ﷺ said:

الثلث والثلث کثیر

“One third [is permissible] and one third is a lot.”[2]

Why the grandchildren are not entitled to inheritance in this scenario?

The laws of inheritance are divine and have been outlined in the Qurʾān and Sunnah. These laws determine who inherits from a deceased person and the share of entitlement. These laws are primarily based on kinship. Based on this, grandchildren do not inherit from the deceased in the presence of the living sons of the deceased, because the sons are closer to the deceased than the grandchildren. The Prophet ﷺ said:

ألحقوا الفرائض بأھلھا ، فما بقي فھو لأولی رجل ذکر

“Give the shares [of inheritance that are prescribed] to those who are entitled to it. Then whatever remains, it is for the closest male person.”[3]

Accordingly, Zayd ibn Thābit (d. 45/665-6) (may Allah be pleased with him) said:

ولا یرث ولد الابن مع الابن

“And the paternal grandson will not inherit in the presence of a son.”[4]

This is the unanimous position of scholars, as mentioned by Imam Mālik ibn Anas (d. 179/795)[5], ʿAllāmah Ibn Baṭṭāl (d. 449/1057)[6], ʿAllāmah ʿAynī (d. 855/1451)[7] and others. It is also worth noting that if the children of the deceased son were to inherit from their grandfather, the children of the living sons would also claim to have a share in the assets of their grandfather. Thus, it is necessary to revert to the rules of the Sharīʿah and avoid questioning the divine rulings or regarding them illogical.[8] It has already been mentioned that it is permissible in this scenario for the grandfather to make a will for any of his grandchildren on the condition that it does not exceed one third of the wealth.

Allah knows best

Yusuf Shabbir

5 Muḥarram 1438 / 6 October 2016

Approved by: Mufti Shabbir Ahmad Sahib

www.nawadir.org

Footnotes

[1] Sunan Abū Dāwūd (2870); Sunan al-Tirmidhī (2120); Sunan Ibn Mājah (2713); Sunan al-Nasāʾī (3642).

[2] Ṣaḥīḥ al-Bukhārī (5354).

[3] Ṣaḥīḥ al-Bukhārī (6732).

[4] Ṣaḥīḥ al-Bukhārī (6735); Sunan Saʿīd ibn Manṣūr (5).

[5] Muwaṭṭāʾ Mālik (1850).

[6] Sharḥ Ṣaḥīḥ al-Bukhārī (8: 349).

[7] ʿUmdah al-Qārī (23: 238).

[8] The former grand Mufti of Pakistan, Mufti Rashīd Aḥmad Ludhyānwī (d. 1422/2002) has a detailed treatise regarding this issue in Aḥsan al-Fatāwā (1: 155) which can be referred to further reading. Also refer to Takmilah Fatḥ al-Mulhim (2: 14).