Leaving Inheritance to Abusive Father??

Dear Hadi,

Dear Uneasy Inheritance,

May God bless you, and accept from you, for trying to be so careful in writing your will in accordance with Islamic guidelines. 

For the benefit of readers who may be wondering where the specification of shares comes from, we reference Quran 4:11:  “… For parents a sixth share of the inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left siblings, the mother has a sixth.  (This distribution) is after bequests and debts …” 

Before we dive in to trying to answer your question, we just want to clarify a couple of points.  Each parent that survives their child is entitled to 1/6 of your estate, so if both your parents were to survive you, that would be 2/6 (or 1/3) of your estate.  Combining that with the 1/3 you want to bequest to charity and your siblings, you are left with a final 1/3 to distribute (not 4/6). 

With regard to the remaining 1/3, you mention you’ve been told that it would automatically go to your father since you have no other direct heirs.  Just to be clear, this is not a Quranic injunction, but rather one that is based on a hadith narrated by Ibn ‘Abbas and found in al-Bukhari: “Give the fara’id (prescribed shares) to those who are entitled to receive it; and whatever remains, should be given to the closest male relative of the deceased.”  Presumably, the reason for this is so that the surviving closest male relative can use the remaining wealth to provide for family members as needed.  However, in your situation, you seem certain your father would not use any of that money to provide for your mother.  Given this, you should do some soul-searching and see if you feel comfortable not leaving the remaining 1/3 to your father and insha’Allah, God will accept your sincere decision.  This can be done through your will, where you specify more to your mother.  It would not be in accord with the traditionally accepted Islamic guidelines, but it would be a decision you have made under extenuating circumstances.  The Quran is clear in several places, such as in dietary regulations, for instance, that extenuating circumstances can make what is otherwise prohibited allowable under duress.

However, if you feel that you would not be comfortable writing a will outside of traditional Islamic guidelines, or if you are afraid that it might be challenged in probate court (assuming you live somewhere where Islamic inheritance laws would be legally enforced), there are still things you can do while you are alive to help provide for and secure your mother.  One method people use to distribute some of their wealth to particular individuals or organizations is to give it during their lifetime as a gift (hibah).  In this regard, jurists generally agree that you are free to do this as you wish, and you can give your mother whatever financial gifts you want.  That way, she can get a significant share of your estate.  In an earlier question asked in the Dear Hadi column (Different Inheritance to my 2 Daughters), someone asked about giving differential shares to their two daughters because one daughter was kind to her parents as well as financially needy, while the other daughter was abusive – in our answer to that question, we discussed the idea of hibah.  Below is an excerpt from that answer:

There are some considerations to keep in mind here, the main one being the Prophet’s hadith to “be just to your children.”  This hadith revolved around an incident where a man came to the Prophet (pbuh) and told him that he had given a gift to his son.  The Prophet inquired whether the man had given identical gifts to his other children. When the man replied that he had not, the Prophet asked him to then take the gift back, enjoining upon him equal treatment of his children in giving gifts.  The question which the scholars grappled with in the face of this hadith was whether it was a hadith of “manners,” or a hadith of “law.”  Meaning, was the Prophet (pbuh) giving advice that it is best to be equal with the children, or was he laying down a religious edict that it had to be so.  Three of the four major schools of thought in Sunni jurisprudence interpreted it as a general guidance but not a legal stipulation.  Therefore, according to them, preferential gifts are allowed, but not encouraged, and so you would be able to give your daughter a preferential gift.  This may be quite justified given the nicer way she treats you, or even simply because you like her more.  They rely in their opinion on the fact that major companions, like Abu Bakr and Umar (ra), are reported to have given preferential gifts to some of their children, taking that as proof that this is not haram.

The fourth major school, the Hanbali mathab, feels that this hadith is a legal ordinance, and invalidates preferential gifts absent certain valid reasons.  However, your situation may constitute valid reasons.  For example, among the Hanbali exceptions which would make such a gift valid is if it is done for a justified reason such as a child who is in greater financial need (as your younger daughter seems to be), or one with special medical needs.  In one source reviewing the matter, the authors who analyzed the issue of differential treatment in gifts (Are Parents Free to Bestow their Wealth onto their children? A Juristic Discourse on Equality and Justice in Hibah) said that Ibn Taymiyya, a major Hanbali scholar, considered it “permissible to favour one child over the others if the favoured child is pious but poor and in greater need of material support for the cause of good, compared to his siblings who are richer but less pious who would only squander their gifts in unlawful ways.”

Given the circumstances you describe with your father and the financial needs of your mother, we believe, and God knows best, that you could give your mother gifts while you are alive that would help her secure her financial needs.  If it is not financially viable for you to do this currently while you’re alive because you may, for example, be worried that you might need the money for your own future living expenses, one option you could consider is opening a joint account with your mother.  That way, you have access to your money as needed, but if you die before your mother, the account is already hers.   

As we noted in the earlier Dear Hadi question (referenced above), various Islamic countries have come up with creative alternatives which do not violate the Quranic injunctions on the shares in the will, but also do not require you to give a large gift up front.  Some people, for example, take out a life insurance policy on themselves and pay the premiums now, and name one of their children as the preferential beneficiary.  In your case, you could do this and name your mother as the beneficiary.

Relatedly, we see no reason why you cannot leave the house your mother is currently living in to her – you can even go ahead and put it in her name now as a gift while you are alive, or add her to the deed as a gift so that it is jointly owned by the two of you.  Please remember though we are not property or estate planning experts, so if you decide to do this, please consult a qualified attorney. 

Finally, as we also noted in the earlier Dear Hadi question, whether you decide not to leave the remaining 1/3 directly to your father via your will, or you decide to pursue one of the other options discussed here to pre-emptively provide for your mother’s needs, please keep in mind that this must not be done in a manner that is unjust e.g. giving away all of your wealth to your mother in order to deprive your father out of anger.  Your father is still entitled to some share of your estate (e.g., 1/6), with these other measures we discussed above relating to the remaining 1/3 of the estate.

May God bless you and guide you to a decision that pleases Him and comforts your heart.

In peace.