This is legal information only. For advice on your own circumstances, speak to a lawyer.
Consider a fully discretionary trust so their share does not disqualify them from provincial support, and confirm the structure with a scholar.
The Canadian position
Consider a fully discretionary trust so their share does not disqualify them from provincial support, and confirm the structure with a scholar.
Provincial law governs validity, administration and the grounds on which a will can be challenged — so the answer can change if you move.
The Islamic position
Have the faraid shares recalculated whenever the family configuration changes; they are conditional on who survives.
Record the reasoning and the scholar consulted in a memorandum kept with the will.
Where the four schools differ
This question turns on one issue in our madhhab register: A discretionary trust interest — is anything owned? — whether a person who is only a potential object of a trustee’s discretion, with no vested interest, owns anything that enters his estate when he dies
Position of each Sunni school on whether a person who is only a potential object of a trustee’s discretion, with no vested interest, owns anything that enters his estate when he dies| School | Position |
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| MalikiShafi’iHanbali | An estate is everything left of property and rights. These three schools define the tarikah, in the Mawsu’a’s words, as “everything the deceased leaves behind of property and established rights, without restriction”, and it says expressly that on this definition rights pass without qualification, usufructs among them. The proof offered is the Prophet’s words “whoever dies leaving property, his property goes to his heirs”, read as joining property and right together. The Mawsu’a then applies the definition to the hard class — financial rights that turn on the holder’s own choice, such as a right of pre-emption or an option in a sale — and records that on the majority view these are inherited. Applied to the question asked: even on this, the wider of the two definitions, what must exist is an established right. A claim that depends entirely on someone else deciding to confer it is not an established right of the deceased at all; it is not that these schools would count it and the Hanafis would not, but that the classical categories were built for rights their holder could assert, and this one cannot be asserted by anybody. Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Tarikah” sec. 1 — the definition, split by school: “dhahaba jumhuru al-fuqaha’i — al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu — ila anna al-tarikata: hiya kullu ma yukhallifuhu al-mayyitu mina’l-amwali wa’l-huquqi al-thabitati mutlaqan”, against “wa dhahaba al-Hanafiyyatu ila anna al-tarikata: hiya ma yatrukuhu al-mayyitu mina’l-amwali safiyan ‘an ta‘alluqi haqqi al-ghayri bi-‘aynih”; and the express note that usufructs (al-manafi‘) enter the estate for the majority but not for the Hanafis, who confine it to property or a right connected to property (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 2–3 — “dhahaba jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu) ila anna al-tarikata tashmalu jami‘a ma tarakahu al-mutawaffa min amwalin wa huquq”, on the Prophet’s words “man mata wa taraka malan fa-maluhu li-mawali al-‘asaba” joining property and right together; and the definition of irth as “haqqun qabilun li’l-tajazzu’i yathbutu li-mustahiqqihi ba‘da mawti man kana lahu dhalik” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 3 cont. — the four classes of right and which of them pass: (a) non-financial personal rights, never inherited; (b) financial rights attaching to the deceased’s own person — a donor’s right to revoke his gift, a right to use a specific thing belonging to another — also not inherited; (c) financial rights that turn on the deceased’s own will and choice (pre-emption, the options in a sale): “wa hiya tuurathu ‘inda al-jumhur. Wa dhahaba al-Hanafiyyatu ila annaha la tuurath”; (d) financial rights attaching to the deceased’s property rather than to his person or will: “wa hadhihi huququn tuurathu ‘anhu bi-la khilafin bayna al-fuqaha’” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 4 — “fa-yadkhulu fi’l-tarikati ma kana li’l-insani hala hayatihi, wa khallafahu ba‘da mamatihi, min malin aw huquqin aw ’khtisas”; a usufruct bequeathed to a person passes to his own heirs unless it was limited to his lifetime; and the Shafi‘i addition that the estate includes what entered his ownership after death by a cause he set up in life — game falling into a net he had set (Ministry of Awqaf and Islamic Affairs, Kuwait) — the three schools are named individually inside the word “jumhur” at both the definition locus (sec. 1) and the scope locus (sec. 3), so no school here is carried by another’s citation. |
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| Hanafi | An estate is property, clear of anyone else’s claim on the thing. The Hanafi definition is narrower in two directions at once. It is confined to property, or to a right that has a connection to property, so bare usufructs do not enter the estate as they do for the majority. And it takes in only what the deceased left “clear of another’s right attaching to the thing itself”. On the class of financial rights that turn on the holder’s own will and choice — pre-emption, the options in a sale — the Hanafis part from the majority and say plainly that they are not inherited. Applied to the question asked: the Hanafi definition is the harder of the two for a discretionary interest to satisfy, and it fails it on both limbs — there is no property in the beneficiary’s hands, and the fund is encumbered by the trustee’s own power over the thing. Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Tarikah” sec. 1 — the definition, split by school: “dhahaba jumhuru al-fuqaha’i — al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu — ila anna al-tarikata: hiya kullu ma yukhallifuhu al-mayyitu mina’l-amwali wa’l-huquqi al-thabitati mutlaqan”, against “wa dhahaba al-Hanafiyyatu ila anna al-tarikata: hiya ma yatrukuhu al-mayyitu mina’l-amwali safiyan ‘an ta‘alluqi haqqi al-ghayri bi-‘aynih”; and the express note that usufructs (al-manafi‘) enter the estate for the majority but not for the Hanafis, who confine it to property or a right connected to property (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 2–3 — “dhahaba jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu) ila anna al-tarikata tashmalu jami‘a ma tarakahu al-mutawaffa min amwalin wa huquq”, on the Prophet’s words “man mata wa taraka malan fa-maluhu li-mawali al-‘asaba” joining property and right together; and the definition of irth as “haqqun qabilun li’l-tajazzu’i yathbutu li-mustahiqqihi ba‘da mawti man kana lahu dhalik” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 3 cont. — the four classes of right and which of them pass: (a) non-financial personal rights, never inherited; (b) financial rights attaching to the deceased’s own person — a donor’s right to revoke his gift, a right to use a specific thing belonging to another — also not inherited; (c) financial rights that turn on the deceased’s own will and choice (pre-emption, the options in a sale): “wa hiya tuurathu ‘inda al-jumhur. Wa dhahaba al-Hanafiyyatu ila annaha la tuurath”; (d) financial rights attaching to the deceased’s property rather than to his person or will: “wa hadhihi huququn tuurathu ‘anhu bi-la khilafin bayna al-fuqaha’” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Hanafi named in its own sentence at each of the three loci. |
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Researched positions from our madhhab register — issue discretionary-trust-vested-share, reviewed 2026-09-01.
What ownership means in fiqh — and the ruling that does not exist
What is actually owned, and what nobody has ruled. The classical test is milk, and the definitions are precise about what it consists of. Al-Qarafi: ownership is a ruling of the law, assessed in a thing or in its use, which produces the enablement of the person it attaches to to take the benefit of the thing and to take a price for it. Ibn al-Shat says the same in plainer words: to be enabled by the law, in person or through an agent, to use the thing and to take a counter-value. Ibn Taymiyya then gives the mark of the complete kind: the owner can dispose of the corpus by sale and by gift, “and it is inherited from him”, and can dispose of its uses by lending and letting. What falls short of that the jurists call defective or, in al-Zarkashi’s word, weak ownership; and they separate again between ownership that is settled and ownership that can still fall away. The recognised causes of ownership are a closed list — transfer by contract, succession on death, and original acquisition by taking a thing that belongs to nobody. A hope that a trustee may exercise a discretion is none of these. Measured against al-Qarafi’s definition it produces no enablement at all: the person cannot use the fund, cannot sell his hope, cannot be paid for it, and cannot pass it on — which is Ibn Taymiyya’s test failing at the very point that matters here. The gap, stated plainly. That reasoning is ours, not a ruling, and the register will not dress it up as one. We searched for a determination on the common-law trust from a recognised body and found none. AAOIFI, revising its Waqf standard in 2019, identified the “financial trust”, said it resembles waqf in some respects, and expressly excluded it from the standard’s scope. The International Islamic Fiqh Academy’s official compilation of every resolution to 2021 — 641 pages — contains nothing on the Anglo-American trust; every use of “trust” or “trustee” in it is about amana in a mudaraba, in zakat administration or in sukuk. So there is no ruling to report, and a family with a discretionary trust in the picture needs the specific trust deed read by someone competent in both laws, rather than a general answer this register does not have.
Full positions, evidence and history: A discretionary trust interest — is anything owned? — the issue page.
Which row is yours? Most families follow the school of their region of origin —
the four madhahib page maps them. The comparison is here so you can see
your school’s position, not so you can pick the convenient answer — assembling a plan from several schools at once (talfiq) can produce a distribution no school would accept. If your estate turns on this point, put it to a scholar of your school.
Related madhhab issue: Does an heir’s share vest the moment the person dies?.
What to do about it
- Recalculate the shares for the new circumstances.
- Update the will with a lawyer in your province.
- Review every beneficiary designation.
- Confirm where the original is kept.
Note
This is legal information only. For advice on your own circumstances, speak to a lawyer.