Father dividing estate during lifetime and children keeping silent
29-11-2016 | IslamWeb
Question:
A father had a son and four daughters as inheritors. During his lifetime, he proposed that the share of his property be distributed as per a particular manner. He specified the portion of property that his son should take and what each daughter should take after passing away. All the children knew about it during his lifetime. The distribution is not according to the laws of inheritance specified in the Sharia. However, none of his children objected to the proposal of their father during his lifetime. After the death of the father, all his children silently, without any objection to each other, took possession of the portion of the property that their father had specified during his lifetime, without even talking about it, and without any complaint or objection towards each other. In this case: does silence and no objection to each other imply that everyone agrees with the father's wish/proposal/will? Does it mean that every child of the father has given consent to the distribution? All children are married and in a good state of mind and health.
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, sallallahu ‘alayhi wa sallam, is His slave and Messenger.
Distributing the person's wealth during his lifetime is not a valid division of inheritance; rather, it would be considered valid if it is a gift and transfer of ownership that meets all the conditions of the gift set by the Sharia. Al-Haytami 
wrote:
“If the father divided his wealth among his children during his lifetime by granting each of them a share as a gift and all the conditions of the validity of the gift set by the Sharia are met, and each of them took possession of his share and his siblings do not share it with him, then this is a permissible division. However, if he divided the estate among them without them taking actual possession of their shares (allowing them to dispose of them freely by selling them or leasing them out if they wish), then this division is invalid, and when the father passes away, all his possessions are part of the estate.” [Briefly excerpted]
If - as is apparent from the question - the father divided the estate among the children so that they would receive their respective shares after his death and the heirs did not take actual possession of their shares during his lifetime, then this is a will. A will made in favor of the heir cannot be executed except with the consent of all the heirs. The fact that the heirs kept silent about it does not constitute valid acceptance or evidence of their approval of such a division in all cases. Scholars held different opinions as to whether silence (tacit approval) is recognizable by the Sharia as a formal consent. Based on the view that silence is a valid consent, it should be noted that such consent must be based on knowledge. The Fiqh maxim reads, “Consent must be based on knowledge.”
Ma‘lamat Al-Qawaa‘id Al-Fiqhiyyah wa Al-Usooliyyah reads, “This Fiqh maxim is based on logic, and Muslim jurists agreed on accepting its meaning and acting upon it.”
If the heirs do not know that they have the right to object, then that makes their approval - let alone their silence - unrecognized by the Sharia.
Hence, this matter is subject to probability and doubt, as is the case with matters of inheritance and shared rights in general. The Islamic courts are the entity responsible for investigating and addressing such matters and settling such disputes, giving each his due. The fatwa is inadequate in this regard.
Allah knows best.