Grandchildren's Inheritance if their father dies before the grandfather.

 Question:  

السلام عليكم ورحمة الله وبركاته

Dear Dr. I have a personal question regarding inheritance and trust (Amanah) and the details are as follows: 

My uncle deposited RS. 2500,000 PKR (2.5 million) with me before his death. While the deceased was indebted to me 450,000 PKR (four and a half lakh). The deceased is survived by the following heirs:

A son, a grandson (my cousin's son as the cousin has passed away during his father/ my uncle's lifetime), two daughters, and a widow. 

Hence, The Shari'ah guidance is needed regarding three basic questions: 

1. What is the Shari'ah- share of all these heirs in the estate of the late uncle? I.e., in the sum of the amount, he deposited with me. 

2. Can I deduct my credit (RS. 450 Million which I lent my late uncle) from the above-mentioned amount? also, my cousin has borrowed a sum of money from me, can I deduct it from the aforementioned amount too? 

3. How should I return it (to my cousin or to each one of them individually), especially when regarding the son of my cousin, we are all worried and nobody trusts his uncle)?

Professor dr. Kamal Khan, Islamabad, Pakistan

            الجواب حامدا ومصليا ومسلما

        To comprehend the answer in a clearer and simpler way, it seems appropriate to allude to a few Shariah principles as a commencement.

1. A preference in the right of inheritance has been given based on two elements;

A. Approximity of degree. thus in the presence of the child of the deceased, his grandchil/children would be deprived. (As per the Shari'ah inheritance law when the son died in the lifetime of a father, then the children of the son shall not get a share in the property of the grandfather. In other words, A father acts as a bridge between the Grandfather and his grandchildren, and only the presence of the father -when the grandfather/grandmother dies- can secure the share for his children (the grandchildren of the deceased person).

B. The strength of consanguinity. Hence, he, who has two relations with the deceased person would be preferred over the one who has only one relation. Accordingly, kinsmen by the same father and mother shall inherit before the kinsmen by the father only.

C. The heir/s would automatically be entitled to the estate of their predecessor if anything is left after the fulfillment of three successive duties, i.e., the funeral and burial expenses of the demised person, discharge of his just debts from the whole of his remaining effects and the payment of his legacies out of a third of what remains after his debt are paid. 

Consequently, in the above-mentioned case, 

 1. your debt RS. 450,000 PKR can preferably be deducted from the whole amount. 

2.  The grandson does not receive any share as inheritance i.e. he shall inherit no share in the designated amount. However, if the grandfather made a will for him then he will get it provided that it does not exceed the limits of 1/3 of the whole legacy.

3. you are obliged to hand over every individual's share to him/ her, instead of submitting it to one person, unless; all heirs appoint someone as an agent to receive his/ her share. 

4. you can deduct the debt (that you have lended to your cousin) only from his share, not from the whole amount. 

5. The remaining amount of RS.20,50,000 will be distributed among the heirs as follows:

The widow will collect RS.256,250 PKR as 1/8. 

The sone will be entitled to RS.896,875  PKR and each sister will receive RS. 448,437.5 PKR  as per the Quranic canon '' The male is like the luck of the two females. And the grandson will not be entitled to receive any share from the above-mentioned estate of his predecessor.

The percentages of shares of heirs are  as follows:

Wife: 12.50%

Son: 43.75%

Daughters : 43.75% (21.88% each)

Grandson: 0 %  

قال الله تعالى: {آباء كم وأبنآء كم لاتدرون أیهم أقرب لكم نفعًا فریضةً مّن اللّٰه اِنَّ اللّٰه كَان علیمًا حكیمًا}(النساء 11)

 عن ابن عباس رضي اللّٰه عنهما قال: قال رسول اللّٰه صلی اللّٰه علیه وسلم: ألحقوا الفرائض بأهلها فما بقي فهو لأولی رجل ذکر‘‘.(صحیح البخاري ۲/۹۹۷)

’’وقد ذکر الإمام أبوبکر جصاص الرازي رحمه اللّٰه في أحکام القرآن، والعلامة العیني في عمدة القاري: الإجماع علی أن الحفید لایرث مع الابن‘‘.

(تکملة فتح الملهم ۲/۱۸)

’’ولو کان مدار الإرث علی الیتم والفقر والحاجة لما ورث أحد من الأقرباء والأغنیاء، وذهب المیراث کله إلی الیتامیٰ والمساکین … وأن معیار الإرث لیس هو القرابة المحضة ولا الیُتم والمسکنة، وإنما هو الأقربیة إلی المیت‘‘.

 (تکملة فتح الملهم ۲/ ۱۷،۱۸)

Allah (Subhana Wa Ta'ala) knows Best 

Muhammad Nazir khan.

Member of the Fatwa Council (Pvt)  in eastern Turkey

and Lecturer of Islamic studies at Istanbul  American School & college, Turkey

11/7/2022