paying out deceased's wife

Category: 

Inheritance

According to Madhhab: 

Hanafi

Reference: 

1440-465

Question: 

Mufti Saheb, we are
currently faced with a situation, a person passed away, leaving behind a widow
who has no children of her own.

She has been living
with her husband (who is now deceased) and his two sons whom he had from another
wife. They all live together in the same house, each having their own separate
sections within the house, however the sections are not closed off from each
other, everyone has access to the others section. While the son and his wife have
always respected the step-mother's privacy and never infringed on her privacy and this was from the father was still alive. However, this is not the case with
the father's wife, as she is constantly infringing upon the sons wife's privacy
by constantly coming into her kitchen and dining area and also into the lounge and other parts of her section. 

Please advise as to
whether it is the duty/responsibility of the 2 sons and the wife of the 1 son
to do for the fathers wife and look after her? 

Are the sons her
mahrams?

Should they see to her
needs even though she has 2 blood brothers who live abroad And 2 blood nephews
residing here in South Africa? 

Please do provide
proof and evidence for this from Quraan and Hadith in order to clear further
misunderstandings which may arise. 

Also, her blood
brothers live in India, they have not visited since the deceased fell ill,
neither have they taken the initiative to come and support their sister in any
way nor have they made contact with the two sons to discuss what will happen on
the road ahead, who will take care of her etc.

Is it the
responsibility of the two sons (who are not her blood in any way) to take care
of her when they have their own responsibilities and family to see to? 

She wants her cousins
sons to represent her in a family meeting, claiming they are her nephews n so
are her mahrams as such, but after trying to explain to her that these are not
her nephews in the direct blood line, despite having a blood nephew in the same
town and also another blood nephew who resides in another town but can make the
means to be there for her. Would it be correct for her cousins sons to
represent her? 

Currently as we stand,
would it not be most correct for her brother/s to come and take her back to
India to complete her iddah? 

These are further
questions which we require clarity on in terms of the Shari'ah:

1) with regards to the
deceased's personal belongings,such as clothing, and valuable items etc, how are
these to be distributed among the heirs (2 sons, 1 daughter n his wife), what
is the proportion in shares of each heir respectively? 

2) In his will he has
expressly stated that his 2 sons shall be the executors of his estate, what are
their duties n responsibilities in light of the Shari'ah and do they enjoy any
preferences with this title?

The deceased and his
elder son shared ownership of the house on a 50/50 % ratio, in his lifetime the
deceased expressly stipulated in writing as to how his 50% is split among the
heirs according to and in line with the Shari'ah, he has left 1 copy with his
wife and 1 with his son... The question now arises, if the wife is told to leave
thehouse;

1) should she be paid
out her share, if so

2) how will the value
of her share be calculated?


Answer: 

1. It is the responsibility of her brothers to take care of her needs. However, our advice is that if at the moment her brothers are not yet taking care of her needs and her step children are doing so willingly, because after all, she was the spouse of their father and she is their step mother too; they should not be stopped and InsahAllah Allah Ta'aala will reward them abundantly.

2. Her husbands’ sons from his previous marriage are her Mahrams.

3. With great wisdom, her brothers should be informed about the situation and their responsibility according to Shar’iah.

4. Her cousin’s sons can represent her in the family meeting.

5. In principle, she has to complete her Iddah in the house she used to stay with her husband. However, if there is no one to look after her and take care of her needs, it will be permissible for her to go to her brother’s house and complete her Iddah. 

6. After settlement of the deceased's burial expenses and debts (if applicable) and, from one-third of the residue, implementation of his Wasiyyat (with regard to bequests, missed Salaah, Hajj, etc. if applicable); the net estate including his personal belongings will then be apportioned into 40 parts to be shared among his surviving heirs as follows:

Wife - 5 shares - 12.5%

Son - 14 shares - 35%

Son - 14 shares - 35%

Daughter - shares - 17.5%

TOTAL - 40 shares - 100%

All the Marhoom’s heirs will be considered shareholders in all the belongings of the deceased according to the above-mentioned shares/percentages. If these assets can be divided easily, well and good (they should be distributed) and if not, our advice is that the heirs may agree on a certain amount and sell them to an outsider and thereafter, distribute the money amongst the Marhoom’s heirs according to their respective shares. They can also be sold to one of the heirs and if he agrees to purchase them, he should make arrangements of payments with the other shareholders (heirs) of the assets.

7. An executer of an estate has to ensure that the estate be wound up and made to devolve upon all the heirs in an Islamic way and to take care of the needs of the deceased’s minor children. Executers do not enjoy any preferences.

8. The Marhoom’s wife has a legitimate claim of her share in the house. The other heirs do not have the right to deprive her from her share in the house by telling her to leave. The best way forward is that the heirs may mutually agree on the value of the house and sell it to an outsider and thereafter, distribute the money amongst the Marhoom’s heirs according to their respective shares or sell it to the Marhoom’s son who owns the other 50%. If he agrees to purchase the house, he should make arrangements of payments with the heirs (shareholders) of the house and then have the house transferred onto his name. Because she is the owner of her portion, she has the full right to dictate whatever price she wants to sell it for.

AND ALLAH TA'AALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: Abdullah Badat

CHECKED AND APPROVED BY:  Mufti Muhammed Saeed Motara Saheb D.B. 

Islamic Date: 5 شعبان 1440  English Date: 11 April 2019

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