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Fatwa CenterImpermissible to dispose of one's property with the intention of depriving heirs of inheritance
Question
My father-in-law (my wife`s father ) had only one brother who died leaving a wife, three sons and two daughters of his own. He (my father-in-law) has a wife and two daughters of his own. He is still alive. But he has divided his land property among his wife and daughters. He reasons that (1) his brother died, so his nephews and nieces (his deceased brother`s offspring) will not get his property after his death (2) he (my father-in-law ) spent much money for his nephews and nieces as a guardian, so his nephews and nieces have got their portion in advance. Is he right in his decision or has done sin?
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
This issue requires elaboration. If the deceased made that division of his property among his wife and two daughters as a bequest (will), then this is invalid because it is a bequest in favor of heirs entitled to inherit. The Prophet, sallallaahu ‘alayhi wa sallam, said: “There is no bequest to an heir.” [Ahmad, Abu Daawood, An-Nasaa’i and Ibn Maajah]
But if he meant it to be a gift (Hibah) and he was not in his last illness before death, then the gift is valid; but it does not become effective unless the recipients of the gift had taken it into their possession and had full control over it.
The nephew (brother’s son) is entitled to inherit from his paternal uncle if the following conditions are met:
1) The deceased has no living male ascendants (father or father's father and so on).
2) The deceased has no living male descendants (son, son’s son, and so on).
3) The deceased has no living full brother or half-brother from the father's side.
If this nephew is the son of the deceased’s half-brother from the father's side, then there is another condition: that there is no nephew from the deceased’s full brother. If all these conditions are met, then this nephew is entitled to inherit from his uncle.
It seems that these conditions are met in your case; therefore, the nephew is among the eligible heirs entitled to inherit and it is impermissible to deliberately exclude him and deny him his due share of the inheritance.
Allaah Knows best.
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