Paying legal fees from the estate
Question:-
Some of the heirs of our later father’s estate are demanding a distribution that is against the Shari’ee law of succession. If the matter goes to court, can the legal costs be drawn from the estate?
Answer:-
It is the duty of the executor/s to ensure that the estate is dissolved in accordance to the Shari’ee law of succession. The executors should attain a share certificate from a reputable organization and submit it together with an Islamic Will to the master of the court via an attorney. The ‘Islamic Will document’ prepared by the Jamiat or by our Darul Ifta contains the following clause which states;
I hereby bequeath the entire net residue of my estate and effects of whatsoever nature or kind where so ever the same may be situated, whether movable or immovable, corporeal or incorporeal, whether in possession, reversion, remainder or expectancy to my lawful heirs and heiresses to be determined at the time of my death in accordance with and the proportions specified by the Islamic Law of Succession.
For the purposes of giving effect to this clause, my Executor(s) shall file with the master of the High Court a certificate executed by an authorised official of the Darul Ifta Ibn Masood or their successors. The said certificate shall set out the full names of my lawful heirs and heiresses at the time of my death, and their respective shares in accordance with the rules of the Islamic Law of Succession.
It is the share certificate obtained from the Darul Ifta that will determine the heirs and their stipulated shares, and it is on the basis of this certificate that the master of the court will decide on the matter. In this case, there will be no need to refer the matter to court as the share certificate will suffice.
In the event that a particular heir takes the matter to court as he/she is displeased with an Islamic distribution and therefore contests it, then it is the duty of the remaining heirs to demand a Shari’ee distribution. They may be represented by the executor/s in court, as it is the executor/s duty to ensure that a Shari’ee distribution is implemented. In this case, the heirs that are contesting an un-Islamic distribution should authorize the executor/s to draw the legal fees from their stipulated portion/s of inheritance.
In conclusion, after the demise of the testator, the funds and assets of the estate belong jointly to the heirs. The executors therefore require the consent of the heirs to utilize their funds.