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Fatwa CenterThere is no will for an heir
Question
Dear Scholars, Assalaamu-alaiykum, In 1996 before proceeding for Hajj, my father wrote an Inheritance Will (without any Witnesses’ signatures) and also without Civil Court Stamp Paper and Registration requirements. In the Will he divided the House according to property rate during that year (1996) mentioning that after his death the 2 sons will get the amount and Elder son will keep the House. During that time I and younger brother had our own House and Elder Brother didn’t have his own House and was staying with my Father. Also, Father had 1 more House which he sold during his life time and gave equal share to my 2 Sisters after the consent of his sons. Recently, my father returned to Allah and as per his last wish we heirs gathered to read his Will (since 1996 the Written Will was in the custody of his best friend and a copy with my elder sister). However, just before the opening of written Will, one of our relatives informed us that 2 days prior to father’s death, the last instruction was “to now divide this house equally among three sons, because presently the economic conditions of all my 3 sons are equally good and now all have their own houses”. However, our Elder brother has pressured us to consider the written Will because it favors him monetarily. Today, the House is worth more and he gave us amount as per 1996 House Rate. House was still in the name of my father till his death. Actually, we 2 brothers are in dilemma as to which Will (written or oral) we should adhere. Also advice if 2 sisters’ share has to be acknowledged in the present House. Please guide us accordingly. Shukran.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad 
is His slave and Messenger.
You are not obliged to abide by the written or the oral will of your father because it is a will for an heir and it is invalid because the Prophet said in his sermon in the Farwell pilgrimage 'Allaah gave each one his right and there is no will for an heir'. [Abu Daawood, At-Tirmithi and Ibn Maajah]
Your father made a will for heirs who are his sons, so this will is void unless all the heirs allow it, because the Prophet also said: "There is no will for an heir unless all the heirs agree to it." [Ad-Daaraqutni] Therefore, if an heir does not agree to it, he has the right to do so and he is entitled to his legal share from the inheritance of the house. Even the daughters have the right to reject that will. So, the house should be divided according to the Book of Allaah and the Sunnah of the Prophet .
However, if all the heirs consent to the will, then the house should be divided according to what they consented to and according to the value they consented to. The eldest brother has no right to oblige his brothers to take any given amount (of the house), but this should be according to the amount agreed by the heirs because they are not obliged to abide by the will in principle and if it is made effective by any of the heirs, then it is like a gift from him.
As regards the gift of the father to his two daughters without gifting his sons, then in principle being just between the children when gifting them is a must, but since the children agreed with this gift, then it is a correct gift; for more benefit, please refer to Fatwa 83061.
Finally, we advise you to divide the house according to the Sharee’ah, because dividing it according to Allaah’s Law is better than the division of your father. Furthermore, you should not disagree about a temporary worldly benefit and cut ties of kinship which Allaah ordered to keep ties with, because if you do so Allaah may cut His Ties with you and you may lose this worldly life and the Hereafter.
Allaah Knows best.
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