Her mother bequeathed some gold to her youngest brother, but she kept it with her. What is the ruling on how it should be dealt with?

Question: 175292

I want to ask about some gold that my mother left with me before she died, with the knowledge and consent of all my siblings, for my youngest brother. That was because she felt that she had done something for all my married siblings, but she was not able to do something for my youngest brother because she got sick, then she died. So she instructed me to give my youngest brother the gold that was with me, so that he could get married.

Then I travelled, and I left the gold with my sister. After a while my sister called me and told me that she needed some money, and that she wanted to take it from the gold that she was keeping for my brother as a loan, which she would use then after a while she would pay it back. I do not know whether there is sin on me or my sister because we disposed of the amaanah (that which was left as a trust with us), or is there no sin on us? If my brother knows about that, does that make a difference or not?

Praise be to Allah, and peace and blessings be upon the Messenger of Allah and his family.

Firstly:

If your mother left gold with you on the basis that you would give it to
your brother after she died because he needed it, then this is a bequest,
and a bequest to an heir is not valid unless the other heirs agree to it.

If the heirs are adults of sound mind, and they agreed to the bequest after
your mother’s death, then the bequest may be carried out. As for your
consent before her death, it is of no significance, because the gold did not
come into the possession of the heirs before your mother died, so their
consent before her death does not count.

Based on that, if there was consent after your mother’s death, then the
bequest is valid. If they did not consent, or some consented and others did
not, then the bequest is to be carried out with regard to those who agreed.

Al-Hajjaawi (may Allah have mercy on him): … unless the heirs give their
consent after [the testator’s] death, then it is valid to carry out the
bequest.

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said:

The phrase “after [the testator’s] death” refers to [the heirs’] consent,
i.e., unless the heirs give consent after [the testator’s] death, because if
they give consent before his death, that consent does not count for
anything, because they had not yet taken possession of the wealth. Therefore
they do not have the authority to give away any of it, because consent here
is to give something away. And because the one who is the heir today may end
up being the one from whom wealth is inherited (i.e., he may die earlier
than the testator). It often happens that one man is healthy and another is
very ill, but the former dies before the latter; so their consent does not
count, unless it came after [the testator’s] death.

End quote from ash-Sharh al-Mumti‘ (11/141)

For more information, please see the answer to questions no.
106236 and 91530

Secondly:

If consent has been given and the bequest becomes valid, then this gold or
other types of wealth that has been bequeathed, is a trust in the care of
the one to whom it has been entrusted, whether that is you or someone else
who is acting as a trustee. So it is not permissible to borrow from it or to
dispose of it by selling, buying or giving, unless that is in the best
interests of the owner of the wealth and will benefit him. That is if he has
no authority over his wealth because he is a minor and the like. But if he
is an adult of sound mind, then it is not permissible to dispose of anything
of his property until one has first consulted him and asked his permission.

What you must do now is put the trust back as it was. If some of this gold
has been sold, then your sister should buy some gold as a replacement for
it, then put it back with the amaanah (that which has been entrusted to her
keeping).

Please see also the answer to question no. 83827

Note:

Some parents may give some wealth to one child to help him to get married,
for example, then make a bequest to another child of some wealth, based on
the idea of equity between the children; so just as he gave something to the
older child, he thinks that he must give something to the younger. If that
is not possible during his lifetime, then he makes a bequest to him after
his death of something similar to what he gave to his siblings. But this is
not correct, because he only gave money to one who was in need, and this
younger child was not in need at that time. If he (the younger child) needs
to get married and so on, then the father must also give him according to
his need as he gave to his brother. But if the father dies before the
younger child needs this kind of money, then there is no blame on the
father, and this younger child who did not reach the stage of needing that
help during his father’s lifetime is not entitled to anything.

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: Hence it is
regarded as a mistake when some people arrange the marriages of those of
their sons who have reached the age of marriage, and also have younger
children, so they write in their wills, “I bequeath to my sons who have not
yet got married that the marriage of each one should be arranged with money
from one third of the estate.” This is not permissible, because arranging
the marriage comes under the heading of meeting needs, and these (younger
children) had not reached the age of marriage. So making a bequest to them
is haraam and should not be carried out; in fact it is not permissible for
the heirs to carry out this bequest, unless those of them who are adults and
of sound mind give their consent to that, in which case there is nothing
wrong with an heir doing that with regard to his own share of the estate.

End quote from ash-Sharh al-Mumti‘ (4/599).

And Allah knows best.

Source:

Islam Q&A

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