A man bequeathed his wealth to his sister's sons, knowing that he had a nephew at the time. What is your opinion on this case?
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Question:
A man bequeathed his wealth to the children of his sister's son, both male and female, during his lifetime. At that time, he had a residuary heir, either a brother or a nephew. My mother (may Allah have mercy on her) was from among those to whom the bequest was made. This was about fifty years ago, and my mother was given some of the bequeathed money. That money was divided in the manner we mentioned. What is the ruling on this bequest? And what about the money that was divided between me and my brothers after my mother? If it is forbidden, is it permissible to give in charity or donate what we took? Is there a sin on my mother? I also inform you that the bequeather has a residuary heir, a nephew, who is still alive and knows everything, because at the time of the bequest he had no power or strength as he was a child. Please advise us on this case. May Allah reward you with good?
Answer:
A person is not permitted to make a bequest except within the limit of one-third or less. A person may make a bequest after his death within the limit of one-third or less, based on the saying of the Prophet (peace and blessings be upon him) regarding the prostration and the prostration, in which it is mentioned: "You are the one who bequeaths to your heirs"Sahih al-Bukhari 5668. Therefore, a person is not permitted to bequeath anything from his wealth after his death except within the limit of one-third. He is not permitted to bequeath anything to a parent unless the heirs consent after his death. If they consent after his death and the bequest is executed, the right reverts to the heirs regarding what exceeds the limit. The action mentioned in the question is not valid. For the deceased, only one-third is valid, and anything exceeding one-third is returned to his 'asabah (residuary male heirs), i.e., those closest to him, based on the saying of the Prophet (peace and blessings be upon him) Sahih al-Bukhari 6737. Something or a man, when Allah the Exalted says, "And to the relatives, some of them are closer to each other than others" — O Teacher, Allah — His saying (the Exalted) [An-Nisa 4:7]
The result is that this bequest is not valid except within the limit of one-third. And what exceeds one-third is the right of the heir, who is the nephew, as the questioner mentioned, if there is no one else. If he permits his right, there is no harm. Otherwise, what exceeds one-third is returned to him.
A man bequeathed his wealth to the children of his sister's son, both male and female, during his lifetime. At that time, he had a residuary heir, either a brother or a nephew. My mother (may Allah have mercy on her) was from among those to whom the bequest was made. This was about fifty years ago, and my mother was given some of the bequeathed money. That money was divided in the manner we mentioned. What is the ruling on this bequest? And what about the money that was divided between me and my brothers after my mother? If it is forbidden, is it permissible to give in charity or donate what we took? Is there a sin on my mother? I also inform you that the bequeather has a residuary heir, a nephew, who is still alive and knows everything, because at the time of the bequest he had no power or strength as he was a child. Please advise us on this case. May Allah reward you with good?
Answer:
A person is not permitted to make a bequest except within the limit of one-third or less. A person may make a bequest after his death within the limit of one-third or less, based on the saying of the Prophet (peace and blessings be upon him) regarding the prostration and the prostration, in which it is mentioned: "You are the one who bequeaths to your heirs"
rich is better than to leave them poor, begging of others
أَغْنِيَاءَ خَيْرٌ مِنْ أَنْ تَذَرَهُمْ عَالَةً يَتَكَفَّفُونَ النَّاسَGive the Fara'id, (the shares prescribed in the Qur'an) to those who are entitled to receive it, and then whatever remains
ألحقوا الفرائض بأهلها، فما بقيFor men is a share of what the parents and close relatives leave, and for women is a share of what
لِّلرِّجَالِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِّمَّاThe result is that this bequest is not valid except within the limit of one-third. And what exceeds one-third is the right of the heir, who is the nephew, as the questioner mentioned, if there is no one else. If he permits his right, there is no harm. Otherwise, what exceeds one-third is returned to him.
Source
قناة «العلامة الدكتور صالح الفوزان»، رجل أوصى بماله لابناء أخته علماً أنه كان له ابن أخ حينها فما رأيكم في هذه القضية؟ الشيخ صالح الفوزان — youtube.com
The Arabic text is a machine transcription of the audio recording.