What if a Will is Found After the Distribution of the Estate?
Question:
The deceased had made a will to dedicate one-third of his wealth as a waqf (endowment). That will was not acted upon, and the estate was distributed. Later, the will was rediscovered after some time. What should be done?
Answer:
In this situation, one-third of the share from each heir’s portion should be taken and the will should be executed according to the waqf specified. This applies when the deceased had made a will to dedicate one-third of his wealth or had willed that one-third of his wealth be spent on the poor and others.
If the waqf relates to a specific, present asset during the deceased’s lifetime—meaning it was a binding waqf—then it must be fully executed. For example, if it was a piece of land, the heirs must withdraw from it because its waqf status has already been established. Similarly, if he had dedicated a piece of land to build a mosque, it must be used for that purpose, and the land must be taken from the heirs to fulfill the donor’s intent.
Therefore, it is essential to distinguish between a will (وصیت) and an established waqf (وقف ناجز). A will comes into effect after death. For instance, if someone wills that his house be dedicated as a waqf, this will is acted upon after his death and applies only to one-third or less of his wealth, and it cannot be for an heir. The one making the will has the right to revoke, modify, or increase/decrease it before death. After death, it is only implemented within the limit of one-third.
On the other hand, an established waqf (وقف ناجز) takes immediate effect, and the donor no longer owns it, nor can he revoke it—even if all his wealth is consumed by it. However, if the waqf is made during the final illness, it will be implemented only up to one-third of the total estate.
[Ibn Uthaymeen: Noor ‘ala al-Darb: 23/249]
