Question: A family member wishes to make a conventional will only. They wish to gift their property to their wife and seven children, but, to be distributed in accordance with Shari’ah. Is this permissible?
A: There are set rules in Islam as to the rights and responsibilities that relate to the testators estate and his heirs. The testator has no discretion after death as to how his estate is distributed amongst his heirs as his heirs are vested with shared ownership of his estate upon his death in proportion to their shares. The only discretion the testator retains is in relation to one third of his residual estate but even that he cannot bequeath to any individual who already inherits from him. It is important to understand that once an individual dies all his heirs have a right to his estate as well as the right to expect that their best interests are upheld.
The rights of one heir does not have precedence over the rights of another.
If a testator expresses a preference or leaves instruction to be upheld after his demise then this is, in effect, a bequest which is only valid up to one third but not in favour of an heir.