Ruling on selling jewelry bequeathed to be worn not sold
9-1-2014 | IslamWeb
Question:
My grandmother died; and she has four daughters and four old-fashioned gold bracelets. She told her daughters to take those and put them on. But the daughters want to sell them and buy fashionable bracelets. Is selling them permissible?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
If the grandmother is from the side of the father, and has no heirs other than those four daughters, the old-fashioned bracelets should be given to them equally, for they have two-thirds as their obligatory share, and the remaining third is returned to them since there are no other heirs; and in this case, they could dispose of the legacy as they like, by selling it and buying something else, giving it as a gift, or so on. Thus, their mother's bequest not to dispose of those old-fashioned bracelets as they like is ineffective, for the ownership of those old-fashioned bracelets has already been transferred to the daughters by her death.
But if those daughters are not heirs, like their being the daughters of her daughters, the bequest of their grandmother to them is valid and effective as far as one-third of the legacy is concerned. If the old-fashioned bracelets constitute one-third of the legacy, the bequest will be held valid; and if they constitute more than one-third, it will not be held valid concerning what is over the third of the legacy, unless it is authorized by the heirs, if there are any. They also have the right to dispose of their portion from this bequest as they like; they could sell the old-fashioned bracelets and buy others, or so on.
But this bequest is not subject to the same ruling of Waqf, should we adopt the permissibility of death-conditional Waqf, for Waqf is not held valid except with the deed or word indicative of it, and this is not the case here.
Furthermore, if there are other heirs along with those daughters who are themselves heirs, the bequest will not be held valid for the daughters, unless it is authorized by the other heirs. This goes back to the statement of the Messenger of Allaah, sallallaahu ‘alayhi wa sallam: "Verily, Allaah Has Given each his right that is due to him. So, no bequest is due to an heir." [At-Tirmithi, An-Nasaa’i, Ibn Maajah; and the following addition is mentioned by Ad-Daaraqutni and Al-Bayhaqi: "unless it is authorized by the heirs."]
If the bequest then is authorized by the remaining heirs, it will become permissible; and if it is partly authorized, i.e. by some apart from others, it will become permissible only concerning those who authorize it, apart from those who do not. In case it is authorized by all or some of the heirs, the daughters then would have the right to dispose of what is held valid for them from this bequest, by selling or so on.
Allaah Knows best.