Performing hajj on behalf of a deceased from his estate
I have a brother who promised his wife that they will perform their obligatory hajj together but passed away seven months before the hajj season. His wife went ahead with the plans and took her brother both as her mahram [unmarriageable male relative] and to perform hajj on behalf of my brother. She deducted the expenses of their hajj from my brother's estate, over which she had control, and before its division. Please note that my brother does not have any children but is survived by one full sister. Some Azhari scholars in our village explained to my brother's widow that her hajj expenses must be covered from her lawful share and not from the estate as a whole, but she refused. She likewise refused to commission one of our relatives living in Saudi Arabia to perform hajj on behalf of my brother. Please clarify the legal ruling for this.
The woman mentioned in the question is not entitled to deduct the expenses of her hajj from her husband's estate before its division. She must return the sum she took without seeking the permission of the legal heirs because her late husband only promised her to take her on hajj—and a promise is not legally binding i.e. it cannot be used as evidence in a dispute. Had her husband been alive, he may have revoked his promise for any reason. Moreover, financial rights are not acknowledged unless they are established by determinant evidence, written or drawn up in the presence of witnesses.
- If the deceased had not performed his obligatory hajj before his death, its expenses must be deducted from the estate before its division.
-The hajj performed by the brother-in-law is valid if he has already performed his own obligatory hajj. However, not all its expenses are to be deducted from the estate, but only the minimum sum which would have been spent had the relative residing in Saudi Arabia performed hajj on behalf of the deceased; the rest belongs to the heirs. Anything beyond this must be covered by the brother-in-law and not deducted from the estate.
-If the brother-in-law had not performed his obligatory hajj, he is responsible for the expenses and, by this hajj, has fulfilled the obligatory hajj for himself and not for the deceased.
-If the deceased had already performed his obligatory hajj, the expenses of the hajj performed by his brother-in-law on his behalf is not to be deducted from the estate except if any of the heirs volunteers to pay them from his share.
-The hajj of the widow of the deceased and her brother is valid if they preserve the heirs' rights as mentioned above.
Allah Almighty knows best.