Assalaamu ‘Alaykum; Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 4 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 3 - about the hermaphrodite from the deceased’s relatives are : 1, son - The will which the deceased left behind and that is related to his inheritance is : These r not exact words but he wrote that one farm has to be given to a son and hermaphroditic son who live with him while the other orchard is to be distributed among others. - Additional information : There r four things to be distributed ,a farm ,an orchard ,a house and 8 shop.Only one son ,the hermaphroditic son and two daughters live in India while the 3 sons and a daughter live in Pakistan and r settled there.All the life the son who lived with father worked hard with the father so during his lifetime the father gave the farm to this son and the hermaphroditic son and even registered it in their name and told others too .please tell how this property is to be distributed

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 a man writes any of his property in the name one of his heirs, or in the names of some of them, then the matter is one of the two following cases:

1- If he writes the property (the farm in this case) in the name of the heir to take it after his death, then this is considered a bequest to an heir, and the bequest to an heir is forbidden by Islamic law, because the Prophet, sallallaahu ‘alayhi wa sallam, said: “Allaah has given each heir his legitimate right, so there is no bequest for an heir." [Ahmad, An-Nasaa'i, At-Tirmithi, Ibn Maajah and Abu Daawood]

The Hanbali scholar Al-Mardaawi said: “It is not permissible for a person who has heirs to make a bequest of more than a third of his estate to a non-heir, and he should not make a bequest to his heir of anything unless all his heirs approve it. He is forbidden from doing so according to the correct opinion of the (Hanbali) School.” [End of quote] It is not an obligation to execute such a bequest; rather, that requires the approval of all the heirs. If all of them approve it, then it becomes effective; otherwise, they have the right to reject it and his bequest (i.e. the farm) will be divided among them according to the Islamic law.

2- If he wrote the property (i.e. the farm) in the name of an heir as a gift during his life, and the person to whom it was given possessed it during the life of the donor, and the donor gave full disposal of the gift to the person to whom he had donated it, then this is considered a valid gift, and if the donor dies, it (the gift) is not considered part of the inheritance and the person to whom it is donated acquires full possession of it.

It is on this basis that you should examine what your father had registered in the name of one of his sons and the hermaphrodite and decide according to what we have mentioned. If it turns out that it is a gift, then it takes effect as a gift and it is not included in the inheritance, in which case, the heirs should divide the remainder of the inheritance. But if it turns out to be a bequest or an invalid gift (which had not yet been possessed by the recipient), then it is included in the inheritance and it should be divided between all the heirs according to the Islamic law.

We understood from the question that the hermaphrodite is the child of the deceased, and we will base our answer on this:

If a man dies and leaves behind four sons, three daughters and a hermaphrodite child, and he did not leave any other heir, like a father, a mother, a grandfather or a grandmother, then his entire inheritance will be divided among all of them by Ta‘seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed), with the male receiving twice the share of the female, as Allaah Says (what means): {Allaah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]

Since there is a hermaphrodite among the heirs, the scholars differed in opinion regarding the inheritance of a hermaphrodite. The view that we support is that if it is hoped that the gender of the hermaphrodite will be determined later, then he and the other heirs will be given lesser part of their shares (i.e. according to the assumption of the hermaphrodite that he is a female and the assumption of the other heirs that he is a male) and the rest will be delayed until hermaphrodite's gender is determined. In case it is not hoped that his gender will be determined, like if he dies before puberty (and the other heirs want to distribute his share of inheritance) or if he reached puberty while having no sign which shows that he is likely to be a male or a female, then the hermaphrodite in this case will be given half of the inheritance of a male and half of the inheritance of a female; these details are according to the Hanbali School of jurisprudence. Accordingly, there are two possible calculations of his share of inheritance:

1- In case of hope (that the gender will be determined), the inheritance will be divided into 156 shares. Each son gets 24 shares, and each daughter gets 12 shares. The hermaphrodite gets 13 shares and 11 shares will be delayed until his gender is determined. Then, if it becomes evident that it is a male, he takes all that was delayed, and if it appears that he is a female, then he does not take anything from what was delayed. In the latter case, what was delayed will be returned to the sons and daughters. Each son takes 2 shares from what was delayed and each daughter takes one share.

In case his gender cannot be determined, then we opt for the “loss of hope” situation (i.e. it is not hoped that the gender will be determined).

2- In case of “loss of hope”, the inheritance will be divided into 312 shares. Each son gets 50 shares, each daughter gets 25 shares and the hermaphrodite gets 37 shares.