Inheritance Dispute
QUESTION:
My 76-year-old mother lives alone. We are 5 children, 1 son and 4 daughters. My parents were married in community of property according to South African law, and paid for their house through their business, wherein my mother also worked. My late father’s share has not been dissolved yet. How should the house be shared out?
My mother has asked me to move in with her, along with my family. The condition I set is that my mother sells the house to me in order to avoid any issues later on, which my mother agreed to. An assessor priced the house at R700 000, which I have offered to pay my siblings on a monthly basis. Two of my siblings have disagreed, stating that the amount should be paid in full. How should the contents of the house be distributed and are they entitled to take their share from my mother while she is still alive?
ANSWER:
There are many aspects that need to be highlighted in your query. We will explain each one separately Insha’Allah.
1. At the outset, the correct procedure will be that first your father’s estate be wound up. The following will be the distribution of shares for your father’s estate:
Wife – 12.5%
Son – 29.17%
Each Daughter – 14.58%
(We assume that your father’s parents have passed away. If they are still alive, then they will also inherit and the shares will have to be recalculated).
2. Regarding the house, the family will have to ascertain if the father or mother bought the house. According to our understanding, the business commenced with the father. If yes, then the business belongs to the father and the mother was assisting the father. Now, if the house was purchased from the proceeds of the business, then the house belongs to the father, which will fall part of his estate and each heir will receive his/her portion of the house. Yes, if the father, during his lifetime, gifted over the house to the mother following the correct gifting procedure in Shari’ah, then the house will belong to the mother and you may now purchase it from your mother, based on whatever amount and terms are agreed upon between you and her. Your siblings do not have a say regarding the sale of the house as your mother is the sole owner.
NB. In Islam, we do not ascribe to “in Community of Property”. Muslims in South Africa should register their Nikaah as an Anti-Nuptial Contract (ANC).
3. In the instance where the house belonged to the father, it will now belong to every heir according to the shares stipulated above, and every heir will now have a right to sell his/her share at the price they would prefer.
4. Regarding the contents of the house, the same procedure will apply as explained above. i.e. the family will have to ascertain if the father gifted all the contents of the house to the mother, or it belonged to him. If it was gifted to the mother, then she has the sole prerogative to sell the contents with the house. If it belonged to the father, it will fall part of his estate and each heir will receive his/her portion of the contents of the house.
In summary, if the house solely belongs to your mother, then the children do not have the authority of asking for their share of the house as the house does not belong to them, Yes. if the house does not solely belong to her, rather it belongs to the estate, then all the heirs can rightfully ask for their shares. Also, at this advanced age of your mother, we advise that all the siblings should mutually resolve the matter without causing stress and tension to your mother.
وتتم الهبة بالقبض الكامل ولو الموهوب شاغلا لملك الواهب لا مشغولا به والأصل أن الموهوب مشغولا بملك الواهب منع تمامها وإن شاغلا لا فلو وهب جرابا فيه طعام الواهب أو دارا فيها متاعه أو دابة عليها سرجه وسلمها كذلك لا تصح (الدر المختار و حاشية ابن عابدين 5/690)
. لأن معنى القبض هو التمكين والتخلي وارتفاع الموانع عرفا وعادة حقيقة (بدائع الصنائع في ترتيب الشرائع 5/148)
كل واحد من الشركاء في شركة الملك أجنبي في حصة الآخر ليس واحد وكيلا عن الآخر فلا يجوز تصرف أحدهما في حصة الآخر بدون إذنه (المجلة ص207)
ALLAH TA’ALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST!
ANSWERED BY:
Mufti Abdul Kader Fazlani
Date: 11 Shabaan 1447 / 31 January 2026
CHECKED AND APPROVED BY:
Mufti Yacoob Vally Saheb