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Fatwa CenterDeclaration of Trust Involving Heirs and Non-Heirs
Question
Asalam U Alaikum, kindly guide us in division of our deceased father house in presence of Declaration of Trust where he entitled half to our mother and equally divided the remaining to all children in addition to one part assigned to his one of granddaughter. It is not a WILL but Unregistered Declaration of Trust. Kindly advise us what to follow ? Declaration of Trust OR Sharia Law by giving eighth part to our mother and two parts to son and one part to daughter while excluding granddaughter.
Answer
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad, sallallaahu 'alayhi wa sallam, is His slave and Messenger.
Inheritance matters are often complicated issues and should therefore be referred to the Sharīah courts or whatever acts on their behalf. These bodies are responsible for examining, verifying, and investigating all issues related to the estate and its heirs, and for ensuring that everyone receives their rightful share.
Such cases cannot be properly resolved through a translated Fatwa (legal opinion) issued from afar.
However, in general:
If property is transferred to another person as a gift during one’s lifetime but the recipient did not take possession of it, then the gift is invalid.
If the transfer is intended to take effect after death, it is considered a Waṣiyyah (will) in Islamic law. A will made in favor of an heir is not valid unless the other heirs consent to it.
As for a non-heir, a will in their favor is valid only up to one-third of the estate. Anything beyond that requires the approval of the heirs.
Allah knows best.
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