السلام عليكم ورحمة الله وبركاته
1. It remains a most regrettable phenomenon that Muslims continue to make wills that do not comply to Sharīʿah, despite the wide latitude that South African law allows for Sharīʿah
compliant wills. Allow us therefore to commend you for raising this matter to our attention.
2. Assuming that you are the only surviving wife, your share is one-eighth of the undivided and unallocated estate. What this means is that, from the perspective of the Sharīʿah, your one-eighth share attaches to each and every item of the estate, and not to any specific item or items.
3. As such, for your late husband to have assigned specific items to you or any other heir has, at most, only advisory and not mandatory status under the Sharīʿah.
4. When a conflict between the Sharīʿah and the law ensues in the manner that it has here, it is expected that Muslim heirs would, by the dictates of their conscience, agree between themselves either to effect a redistribution of the estate in line with Shariʿah, or some other arrangement mutually agreed between themselves.
5. South African law allows for redistribution against the dictates of will if agreed upon by all the heirs, while the Sharīʿah allows for alternative distribution, also by agreement and consent of all the heirs.
6. In your case, if all the heirs come together and agree to leave in place the distribution as mandated under the will, this will be acceptable. Should any one particular heir not agree, he/she would be entitled to have his/her Qurʾānic share of the estate paid out to him/her by the remaining heirs.
7. Accordingly, if your husband had no heirs other than yourself and his children, and they agree to let you retain what was assigned to you under his will, this will be acceptable in Sharīʿah. In this case it would not matter whether what you received is more or less than one-eighth.
8. The physical assets assigned to you under the will were a car and a sum of money. Whether or not these two form more or less than the one-eighth to which you are entitled by Sharīʿah depends on the size of the entire estate.
9. As for the usufruct of the flat, this will revert to the estate—and thence, to your husband’s remaining heirs—when you die. *
والله تعالى أعلم
And Allah knows best
(Issued: May 2019)
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* Clause 9 refers to a “Hibah Umrā” that exists within the Maliki School. It is essentially a gift granted for the lifetime of the recipient, after which ownership reverts back to the giver or, if he has passed on, to the giver’s heirs.
