How is the deceased's share of waqf revenue divided among his heirs and the other general heirs?
It is necessary to refer to the text of the endower to ascertain whether you have a share in the usufruct of the endowment while your paternal uncles are alive, or if you do not receive anything until after their death. The text of the endower is like the text of the Lawgiver, and everything stipulated therein must be acted upon, unless it leads to a deviation from the intended purpose.
If the endower states: "This is an endowment for my children," then the children of his sons are included, and they are entitled to it in sequence, meaning they receive it after their fathers. If he says: "This is an endowment for my children and their children," they receive it concurrently with their fathers, meaning they share with them without sequence. If he says: "For my children, then their children, and whoever dies leaving a child, their share goes to their child," then each child is entitled to their share after their father, taking it along with their paternal uncles.
If he says: "Endowment for my children, then their children," and does not say: "And whoever dies leaving a child, their share goes to their child," then if one of the endower's children dies, and he has children, do they take their father's share along with their paternal uncles, or are they not entitled to anything until after the death of all the paternal uncles? There is a disagreement regarding this, and the prevalent view in the madhhab is that the children of the deceased have no share while their paternal uncles are alive. So, the second generation receives nothing while there is still one member of the first generation. However, Shaykh al-Islam said: Rather, they do have a share along with their paternal uncles, because it is generally not the grandfather's intention to deprive his son's children while their paternal uncles are alive. In fact, his compassion towards his son's children who have been broken by their father's death might be greater than his compassion towards his own children.
If the endower's intention is not clear, or if a dispute arises, the matter should be referred to the Shar'i judge.
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- Original fatwa ID
- 30009
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