What is the ruling on a man dividing his house unequally between his son and daughter in a sickbed gift (wasiyyah) that exceeds one-third of his estate?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
According to the majority scholarly opinion, the endowment (waqf) is valid and binding, because if he could endow the entire house to the daughter, bestowing half of it is more appropriate. Under the view we uphold, the endowment is valid only if the son consents; otherwise, the endowment is void concerning the portion exceeding the daughter's rightful share, which is one-sixth. The excess reverts as ownership to the son, resulting in half the property being endowed for him, one-sixth owned outright by him, and the entire one-third share belonging to the daughter as endowed property. Evidence for the general ruling on exceeding the one-third limit in bequests is found in Quran 3:131, which addresses bequests exceeding the permissible limit.
Supporting text
Another possibility suggests that the endowment concerning the daughter's share, one-fourth of the house, is void, leaving three-fourths endowed—half for the son and one-fourth for the daughter. The voided fourth is then divided among them by thirds, giving the son two-thirds and the daughter one-third of that portion. Furthermore, if the son chooses to invalidate the equalization of the shares rather than the entire endowment, there are two subsidiary views: one stating the endowment on one-ninth is voided, returning to him as ownership while maintaining the daughter's divided share; the second suggesting he can void the endowment on one-sixth, resulting in half his share as endowed, one-ninth owned outright, and the daughter receiving her third as endowed plus half of the one-ninth as ownership, to prevent the daughter from receiving a greater endowed share than the son.