She fears her ex-husband will harm her children after her death
2-11-2010 | IslamWeb
Question:
As salamu aleikum, I am divorced (in fact, it was khul'a for good reasons) and my two daughters (still under 10 yrs old) live with me, while my son (12 yrs old) lives with his father. I haven't seen him for several years. The father of the children has given us lots of problems since the divorce (because I used to have a good job and spend on him and his family and after the khul'a he had to work himself-he has never forgiven me for that), we have several court cases running, he has been imprisoned once because of his actions against us, and we can never be safe from him outside court. He's trying to make our life as difficult as possible, to the extent that my daughters cannot even go to school anymore out of fear of being kidnapped by him (which has already happened once). He does not pay nafaqah. Now, my questions are as follows: Can I write a will in which I distribute the things I own (house, car, money) between my three children (I have no other Muslim family)? You see, I fear that my ex would simply state he is still my husband and take a part of the children's share. Also, can I, in a will, ask a certain religious family to take care of my daughters until they are grown-up instead of sending them to their father with his un-Islamic behavior? And how do you go about writing a will? Does a lawyer need to be hired or can one write it by himself? Or is it better not to think about these things and let everything go the way Allah has predestined? Jazak Allahukhair.
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 
is His slave and Messenger.
As for dividing your property among the heirs and making them its owners while you are still alive in a way that they dispose of it as its real owners, then this is permissible but making a will for an heir is not permissible unless all other heirs agree to it while they are all adult and have sound reasoning.
Therefore, it is not permissible for you to make a will to your children unless you fear that their right in the inheritance will be lost, in which case, you may write a will for them according to their legal shares. For more benefit on how to write a will, please refer to Fatwa 85438.
As regards the fostering of the children, then if their father is dissolute, he has no right in fostering them; rather, the fostering will be transferred to the females who have more right in fostering them. In case of dispute about the fostering, the case should be taken to an Islamic court or to an institution that acts on its behalf, like the Islamic Centers; for more benefit, please refer to Fatwa 87762.
Therefore, there is no benefit in making a will about the fostering of your children because after your death the fostering will be for whoever legally deserves it, and this is something that we are unable to know and determine now, but if you really fear about your children to be harmed after your death because of what you mentioned, then we advise you to ask the Islamic Center in your area to take care of them after your death.
Also, if you fear the fostering will be given to someone who is not eligible for it, then it is permissible for you to write a will for a Muslim family to take care of them.
Allaah Knows best.