She gave her house as a waqf (Islamic endowment) before she died; do the heirs have any right to it?

Question

Praise be to Allah.

If the deceased gave her
house as a charitable waqf when she was in good health, then her heirs have
no right to it, because it has become a waqf and it cannot be sold, given
away or inherited. Al-Bukhaari (2737) and Muslim (1633) narrated from Ibn
‘Umar (may Allaah be pleased with him) that Umar was given a share of land
in Khaybar, and he came to the Prophet (S) to consult him about it. He said:
O Messenger of Allaah, I have been given a share of land at Khaybar and I
have never been given any wealth that is more precious to me than it. What
do you command me to do with it? He said: “If you wish, you can ‘freeze’ it
and give it in charity.” So ‘Umar gave it in charity and stipulated that it
was not to be sold, given as a gift or inherited, and he gave it in charity
to the poor, relatives and slaves, for the sake of Allaah and for wayfarers
and guests; there was no sin on the one appointed to look after it if he ate
from it on a reasonable basis, and fed a friend without storing anything for
the future.

But if she gave this house
as a waqf during the illness from which she died, then it comes under the
heading of a bequest, and a bequest can only apply to one-third of the
estate; any more than one-third can only be given as a waqf if the heirs
allow it.

If the house is no more
than one-third of her estate, then the whole house is a waqf. If it is more
than one-third, then the bequest should be executed with regard to the
equivalent of one-third of the estate, and with regard to the rest, that is
dependent upon the consent of the heir. If they do not give consent, then
they may share it out as an inheritance.

Ibn Qudaamah (may Allaah
have mercy on him) said in al-Mughni (5/365): A waqf that is given
during one’s final illness is treated as a bequest with regard to one-third
of the estate, because it is a donation. Therefore, if it is given during
the final illness, then it is to be executed with regard to one-third of the
estate, such as freeing slaves and giving gifts. If it is less than
one-third then it may be done without the consent of the heirs and it is
binding; if it is more than one-third, the equivalent of one-third should be
made a waqf, and the additional amount may be made a waqf if the heirs give
consent. We do not know of any difference of opinion concerning that among
those who say that a waqf is binding, because the rights of the heirs have
to do with the wealth that was present during the deceased’s illness, and it
is forbidden to give away more than one-third. End quote.