Making a bequest for an heir

Q: Marhooma passed away at that time she had 5 sons and 7 daughters when she passed away. Part of what she left was jewellery… In her lifetime she used to say the jewellery is for her daughters/or my wassiyat is this jewellery must be given to my daughters, but she never give it to them while she was alive and passed away.

Will the jewellery be given to the daughters only or will the sons inherit as well? In both scenarios keep in mind wassiyat and hiba.

Also after marhooma passed away, will anyone be liable to pay zakaat on the jewellery if it wasn't distributed for years? 

A: It is not permissible in Islam for one to make a wasiyyat for an heir. If wasiyyat is made for an heir, then the wasiyyat will not be valid unless the other heirs permit the wasiyyat without any coercion and there are no minors among the heirs. If there are minors among the heirs, then the minors will have to be given their full share of the inheritance. If the heirs do not permit the wasiyyat, then the jewellery will form part of the estate of the deceased and will have to be distributed among all the heirs (together with the other wealth and assets) according to their stipulated shares of inheritance.

The heirs will not have to pay zakaat on the jewellery for the period when the estate was not wound and distributed among the heirs and each heir did not receive his share in the jewellery and the other assets.

Since the deceased did not give the jewellery to her daughters during her lifetime, rather she said that the jewellery will be for them after she passes away, the hibah (gifting) was not valid.

And Allah Ta'ala (الله تعالى) knows best.


Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)