Inheritance with a Missing Heir and a Bequest
A man dies leaving an estate of 240,000 units. Survivors: a wife, two daughters, a mother, and a full brother. He also left a written bequest (wasiyya) of 60,000 to a charity, and one heir (the full brother) was absent and could not be located for two years, though he is presumed alive. The family wants an immediate distribution. A local scholar is asked to give a preliminary ruling on shares and on the bequest's validity, applying Hanafi principles as taught in Kankor madrasas.
1. Determine the fixed shares (furud) and whether the bequest is enforceable as written.
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Bequest first: a wasiyya to a non-heir is valid up to one-third of the net estate. One-third of 240,000 = 80,000, so the 60,000 bequest is within the limit and enforceable. Net estate for heirs = 240,000 − 60,000 = 180,000.
Fixed shares (asl al-mas'ala = 24):
- Wife: 1/8 (because there are children) = 3/24.
- Mother: 1/6 (because there are children) = 4/24.
- Two daughters: 2/3 shared = 16/24.
- Full brother: residuary ('asaba) - but 3+4+16 = 23/24, leaving 1/24 for the brother.
Check: 3+4+16+1 = 24. The brother receives 1/24 = 7,500; wife 22,500; mother 30,000; daughters 120,000 (60,000 each).
2. How should the absent heir's share be handled before distribution?
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Because the brother is presumed alive (al-asl baqa' al-hayat) and is a residuary heir, his share cannot simply be redistributed. The estate should be partitioned with his 1/24 (7,500) held in trust (wadi'a) or the whole distribution suspended (waqf) until his status is established. Hanafi procedure: the qadi may appoint a trustee or set a waiting period; if death is later proven, his share passes to his own heirs, not back to the original heirs. Distributing his share to others now would be ghasb (unlawful taking) and would require restitution. Hence the ruling: distribute the other shares, retain 7,500 in a documented trust.
3. A relative claims the bequest should be void because 'bequests to charity are disliked.' Evaluate this claim.
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The claim is incorrect. A wasiyya to a non-heir for a charitable purpose is recommended (mandub) and valid within one-third; the Prophet's reports encourage ongoing charity (sadaqa jariya). Dislike (karaha) attaches only where a bequest harms heirs or exceeds one-third without heir consent. Here the bequest is 60,000 of 240,000 = 25%, below the one-third ceiling, and it does not target an heir. So the bequest stands. The judgment tested: distinguishing wasiyya li-ghayr warith (valid) from wasiyya li-warith (needs other heirs' consent) and applying the one-third rule arithmetically.