How Does a Wish for Transfer of Ownership Affect Inheritance?

Answered by Ustadh Shuaib Ally

Question: Assalam ‘aleykum,

My father expired in the year 2010. leaving behind 2 immovable properties. The legal heirs are as follows,
1) Two wives.
2) Two sons and One Daughter.
3) Mother.
All the children are from the 1st wife only and 2nd wife do not have any children.
The 1st property was purchased around 1993 and subsequently in the year 1994 apprx half of the property was given to the 1st wife in the form of registered HIBA.
The 2nd property was purchased in the year 2008 and was apprx 1/4th constructed when my father expired. The rest of the construction was done taking loan from family members which is still being repaid.

The 1st wife and her children are staying in the 2nd property and the 2nd wife is staying in one of the portion of the 1st property.
My father always used to say that the remaining portion of the 1st property is for the 2nd wife. and a few days before his death (He expired all of a sudden due to heart attack) had mentioned to me that very very soon he is going to register the remaining part of the 1st property in the name of the 2nd wife.

My questions are:

1) What will be the share of the 2nd wife in my father’s estate?

2) Will his wish to register the half portion of the 1st property in the name of the 2nd wife in accordance to the Shariah Laws of inheritance holds? ( As there is nothing in written. But his wish had been repeatedly conveyed to me, to my brother and my grand-mother )

Answer: Assalam’aleykum,

May Allah have mercy on your father, and keep your family together.

I pray that the following is useful in answering your questions and alleviating some of your concerns:

1.The share of each of the two wives is 1/16 of the estate, equally.

2.Your father’s wishes and expressions of intent remain unfulfilled wishes and are not legally effective. Even though he had apparently earmarked the remainder of the first property for the second wife, he did not expressly give her the property, and ownership did not transfer to her. He also did not bequest her the property. Without any form of legally effective verbal contract, the property remained in your father’s possession, and is now part of his estate, to be divided with the rest of the inheritance.

3.If and only if the rest of the inheritors agree, the second wife can be given the property your father had intended for her. This can be done creatively in various ways, but would require the approval of the other inheritors if it decreases the value of their respective shares. If they do not agree, the property remains part of the rest of the estate.

4.You (as well as any of the other inheritors) can do as you please with your share, for example, using it to give her the property. If you continue to provide for your family, it is entirely permissible for you to give your share to your stepmother, just as you are able to use your finances in other ways you deem appropriate.

5.It is noble for you and others to creatively attempt to fulfil your father’s wishes in life and in death, even if his wishes are not legally binding. At the same time, without a legal transfer of ownership to the wife, the rest of the inheritors have a legal right to their legitimate share of the inheritance.

Shuaib Ally