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Fatwa CenterWants to settle family disputes regarding his deceased brother
Question
I am one from divided family in two countries. My brother died in Dec. 1997 while his wife and son were staying in separation due to certain disputes. After getting sad news she come to attend funeral proceeding of my deceased brother but my second brother and other family members didn’t allow her to even enter the house. She approached court to get her and his son’s right to own the property. Until now the cases are in the court, widow and the orphan are living in poor condition.
At first I try to intervene, but my brother told me that he is trying to save the wealth (agricultural land) for the orphan as his mother will spoil it all and then will get married with other guy because she don’t have good character.
Now I realize that my orphan nephew is being spoiled, as he is away from good educational institute and hated from different quarters.
If I intervenes or help my orphan nephew, my mother is going to be angry with me.
For you reference my deceased brother left behind as fallow:
1) Mother, wife and a son aged one year.
2) Two unmarried sisters, 3) One unmarried brother
And I am the eldest of all. I want to know how the wealth be distributed. Who will be Waali and who Waasi, Please explain me these terms in term of right and responsibilities. Where am I and what are my responsibilities?
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. We ask Allaah to exalt his mention as well as that of his family and all his companions.
The one who has the right to preserve the wealth of a minor after the death of his father is the person that the father entrusted to act as an agent on his behalf before he died. The custody of the boy by the brother, or uncle, or mother cannot be proven except by the father's will or by order of a court.
The Shaafi'ee scholars
said: 'The mother or relatives have no right to be the guardians of the child except by the father's will. However, the relatives from the father's side have to spend on him when nurturing him and educating him even if they had no will for the custody of the child.'
Moreover, the Hanbali school, in one narration, are of the view that the mother has the right for the custody of the wealth of her minor child (children) after the death of the father and the trustee. Al-Buhooti
said: 'Al-Athram asked Imaam Ahmad about a man who died and had minor heirs, what should be done? He replied: 'If they have no trustee but they have a caring mother, then it is the mother who would be in charge of the inheritance.'
Therefore, if the relatives of the father's side fear that the mother is extravagant and wasteful of the child's wealth, because they know her as being so, then they should not give his wealth to her, and they should take the matter to the court to appoint a trustee for the child's wealth. Besides, the relatives of the child have to spend on his education from his wealth.
As regards the division of the inheritance of a person who died and left a mother, a wife, a son, two sisters and two brothers, then it should be as follows:
The mother gets a sixth of the inheritance.
The wife gets one eighth portion of the inheritance.
The remaining of the inheritance is to be given to the child. However, the brothers and sisters have no right in the inheritance because of the existence of the son.
Allaah knows best.
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