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Fatwa CenterWhen a bequest to an heir can be effective
Question
Assalaamu alaykum. Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 4 (A grandson (from the son)) Number 2 (A full brother) Number 1 (A nephew from a full brother) Number 1 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 2 (A granddaughter [from the son]) Number 2 (A wife) Number 1 (A full sister) Number 3 - The will that the deceased left behind and that is related to his inheritance is: There was no written will as it was not practiced in our area as such. But all the heirs knew the following wish, which was said to his wife and children. 1. A two room shop building that is in the same plot and has commercial value as it is adjacent to the road. He wished to give it to the two daughters. 2. A flour mill that is also in the same plot was managed by his wife after his death, and after a few years, she also passed away. Now it is high time to make a decision on the inheritance. - Additional information : Both the shop building and the flour mill have commercial value, hence, we would like to make the inheritance considering that.
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 
is His slave and Messenger.
A mere wish is not considered a will. Also, it is not a condition that the will be written; rather, a verbal will is valid if the rest of the heirs approve of it or the evidence is established about it.
If the deceased made a verbal will to his two daughters to take the shop after his death, then this is a will for an heir, and the will for an heir is Islamically forbidden and cannot be effective unless all other heirs agree to it, as the Prophet said, “Verily, Allaah has given every rightful person his right, so there is no bequest for an heir.” [At-Tirmithi and Abu Daawood] Ad-Daaraqutni reported it and added at the end of it, “Unless the heirs agree to this.”
Therefore, the will cannot be effective except with the consent of all heirs. It is a condition for the consent of an heir to be valid that he be adult and in sound mind. So if an heir is young or is not of sound mind, then his consent is not taken into account, but his right in the shop remains guaranteed.
If some of the heirs agreed while some disagreed, then the will is effective in regard to the share of those who agreed, so their share is waived off from the shop about which the deceased had made a will. As for those who did not agree with the will, then they have the right to take their rightful share from the entire inheritance, including the shop about which he made a will for his two daughters.
What we have mentioned about the shop also applies to the mill if the deceased make a will about it for his wife. But what you mentioned in the question does not suggest that he made a will for his wife as you only mentioned that she was working in it after his death. This is not considered a will for her. Hence, the mill should be divided according to the Sharee'ah between all heirs.
If the deceased did not leave any other heirs except those mentioned in the question, then his wife gets one-eighth as her legal share due to the presence of the children (direct heirs); Allaah says (what means): {But if you leave a child, then for them [i.e. the wives] is an eighth of what you leave, after any bequest you [may have] made or debt.} [Quran 4:12]
The remainder should be divided amongst the four sons and the two daughters by ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male gets twice the share of the female, as Allaah says (what means): {Allaah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]
The grandsons and granddaughters as well as the sisters and brother and the son of the brother do not get anything from the inheritance because they are prevented from this by the existence of the sons.
Therefore, the inheritance should be divided into 80 shares, the wife gets one-eighth, which is 10 shares, each son gets 14 shares and each daughter gets 7 shares.
Allaah Knows best.
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