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inheritance.

 

1)           will, writing  before  death

2)           INHERITANCE OF MALES & FEMALES

 

3)           BEQUEST AND INHERITANCE

4)           INHERITANCE, CONCEPT IN ISLAM

5)           inheritance, a complicated question

6)           inheritance, when there is no son

7)           will: a will that should not be implemented

8)           WOMEN MAKING WILL

9)           wAQF INHERITANCE

 

1. will, writing  before  death

Question:

I would like to know whether Muslim can write will to divide the properties and cash before he pass away.

Answer:

Yes, it is strongly recommended to write a living will. It is not permissible however to punish any of your legal heirs from their rightful share of the will. Prophet Mohammad (pbuh) very clearly said: "No will may be made in favor of an heir."

It is stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.

When a Muslim dies there are four duties which need to be performed. These are:

1.    Payment of funeral expenses

2.    Payment of his/her debts

3.    Execution his/her will

4.    Distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testator's death. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term "testatee" is perhaps a more accurate translation of al-musa lahu.

The importance of the Islamic will

The importance of the Islamic will (wasiyya) is clear from the following two hadith:
 "It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it." (Sahih al-Bukhari)

 "A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)

The will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one's children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.

The Will (Al-wasiyya)

The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights.

No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be oral or written, and the intention of the testator must be clear that the wasiyya is to be executed after his death. Any expression which signifies the intention of the testator is sufficient for the purpose of constituting a bequest.

However, after death, if there is wasiyyah, it cannot exceed the one-third. So, the one-third should be given to whomever it is written for, and the other two thirds should be distributed among the share holders according to each one’s share in the Qur’an.

There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there are no witnesses to an oral declaration is valid if it written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh.

The wasiyya is executed after payment of debts and funeral expenses. The majority view is that debts to Allah (SWT) such as zakah, obligatory expiation etc. should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists.

The Testator (Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the completion of the age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.

Under English Law you must be at least 18 years of age to make a valid will (similarly in most of the United States of America) unless you are a military personnel in which case you may make a valid will at the age of 17.

The testator must have the legal capacity to dispose of whatever he bequests in his will. When making a will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. The testator must of course own whatever he bequests.

The testator has the right to revoke his will by a subsequent will, actually or by implication.

In traditional Sunni Islamic law the power of the testator is limited in two ways:

1.    Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.

Narrated Sa'd ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)

2.    Secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable one-third.

Legal heir in this context is one who is a legal heir at the time of death of the testator.

Narrated Abu Hurayrah (RA): Allah's Prophet (SAWS) said, "Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.

The Legatee (Al-musa lahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc.

The legatee must be capable of owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by other legal heirs. An acknowledgement of debt in favour of a legal heir is valid.

Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator and not before. Generally speaking once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.

If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the legatee's estate according to the Hanafi fiqh because non-rejection is regarded as acceptance. According to the other three main Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of the legatee.

There is difference of opinion as to the time at which ownership of a bequest is transferred from the testator (or his heirs) to the legatee.  According to the Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the bequest.

All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid since a bequest can only be accepted after the death of the testator.

If there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the bequest is invalid because the legatee must be alive at the time of death of the testator for the will to be valid.

If the testator and legatee die together, such as in an air crash, and it is not certain who died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon the legatee's heirs who may accept or reject it.

Executor of the will (Al-wasi Al-mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by the testator. The executor has to carry out the wishes of the testator according to Islamic law, to watch the interests of the children and of the estate. The authority of the executor should be specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafii fiqh state that the executor must be just. The Hanafi fiqh considers the appointment of a non-Muslim executor to be valid. The testator may appoint more than one executor, male or female. The testator should state if each executor can act independently of the other executor(s).

If one starts acting as an executor, one will be regarded as having accepted the appointment, both in Islamic and in English law.

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2. INHERITANCE OF MALES & FEMALES

Question:

Under Islamic law, how is inheritance distributed and why is a woman’s share of the inherited wealth only half that of a man?

Answer:

1. Inheritance in the Qur'an

The Glorious Qur’an contains specific and detailed guidance regarding the division of the inherited wealth, among the rightful beneficiaries. The Qur’anic verses that contain guidance regarding inheritance are:

* Surah Baqarah, chapter 2 verse 180

* Surah Baqarah, chapter 2 verse 240

* Surah Nisa, chapter 4 verse 7-9

* Surah Nisa, chapter 4 verse 19

* Surah Nisa, chapter 4 verse 33 and

* Surah Maidah, chapter 5 verse 106-108

2. Specific share of inheritance for the relatives

There are three verses in the Qur’an that broadly describe the share of close relatives i.e. Surah Nisah chapter 4 verses 11, 12 and 176. The translation of these verses are as follows:

“Allah (thus) directs you as regards your children’s inheritance): to the male, a portion equal to that of two females, if only daughters, two or more, their share is two-thirds of the inheritance; If only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; If no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-Knowing, All-Wise. [An-Nisa 4:11]

In what your wives leave, your share is half. If they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eight; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to anyone). Thus it is ordained by Allah; and Allah is All-Knowing Most Forbearing” [An-Nisa 4:12]

“They ask thee for a legal decision. Say: Allah directs (them) about those who leave no descendants or ascendants as heirs. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman who left no child, Her brother takes her inheritance. If there are two sisters, they shall have two thirds of the inheritance (between them). If there are brothers and sisters, (they share), the male having twice the share of the female. Thus doth Allah (swt) makes clear to you (His knowledge of all things). [An-Nisa 4:176]

3. Female some times inherits same or more than male counter part

In most of the cases, a woman inherits half of what her male counterpart inherits. However, this is not always the case. In case the deceased has left no ascendant or descendent but has left the uterine brother and sister, each of the two inherit one sixth.

If the deceased has left children, both the parents that is mother and father get an equal share and inherit one sixth each. In certain cases, a woman can also inherit a share that is double that of the male. If the deceased is a woman who has left no children, brothers or sisters, and is survived only by her husband, mother and father, the husband inherits half the property while the mother inherits one third and the father the remaining one sixth. In this particular case, the mother inherits a share that is double that of the father.

4. Female usually inherits half the share of that of the male counter part

It is true that as a general rule, in most cases, the female inherits a share that is half that of the male. For instance in the following cases:

1. Daughter inherits half of what the son inherits,

 

2. Wife inherits 1/8th and husband 1/4th if the deceased has no children.

 

3. Wife inherits 1/4th and husband 1/2 if the deceased has children.

 

4. If the deceased has no ascendant or descendent, the sister inherits a share that is half that of the brother.

5. Male inherits double than the female because he financially supports the family

In Islam a woman has no financial obligation and the economical responsibility lies on the shoulders of the man. Before a woman is married it is the duty of the father or brother to look after the lodging, boarding, clothing and other financial requirements of the woman. After she is married it is the duty of the husband or the son. Islam holds the man financially responsible for fulfilling the needs of his family. In order to do be able to fulfill the responsibility the men get double the share of the inheritance. For example, if a man dies leaving about Rs. One Hundred and Fifty Thousand, for the children (i.e one son and one daughter) the son inherits One Hundred Thousand rupees and the daughter only Fifty Thousand rupees. Out of the one hundred thousand which the son inherits, as his duty towards his family, he may have to spend on them almost the entire amount or say about eighty thousand and thus he has a small percentage of inheritance, say about twenty thousand, left for himself.

On the other hand, the daughter, who inherits fifty thousand is not bound to spend a single penny on anybody. She can keep the entire amount for herself. Would you prefer inheriting one hundred thousand rupees and spending eighty thousand from it, or inheriting fifty thousand rupees and having the entire amount to yourself?

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3. BEQUESTS AND INHERITANCE

Question :

Is there no such thing as a 'Will' in Islam? In Islam, can a person 'Will' his assets or property as per his wishes, after his death, to people other than those prescribed in the methods of the Shari’ah? Is this 'Will' legally valid in India?

Answer :

A ‘will’ is a legal document through which a person declares his/her wishes and instructions on how his/her property and possessions should be disposed of, distributed or given away after his/her death.

 Allah (swt) says in the Glorious Qur’an:

“Prescribed for you when death approaches (any) of you if he leaves wealth (is that he should make) a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.” [Al-Baqarah 2:180]

Based on this verse from the Qur’an, it was earlier obligatory upon the Muslims to make a will before death. But after the revelation of the verses on inheritance (i.e. Surah Nisa 4:11-12), wherein Allah swt legislated fixed shares of inheritance for deserving heirs, it is now not compulsory in Islam for a person to write a will in his lifetime, because his estate is divided as prescribed in Shari’ah among his living heirs.

So after the revelation of Surah Nisa 4:11-12, in an Islamic country where Islamic Shari’ah is followed, it is not required to make a will.

In a non-Muslim country like India that has a separate Muslim Personal Law, to make a will is optional. If a Muslim fears that the non-Muslim country where Muslim Personal Law is followed has chances of deviating from the Shari'ah in this respect, it is preferable to make a will as per Qur’anic guidelines – otherwise it is not required. Such a will is legally valid in India.

However, in a non-Muslim country like U.S.A. that does not have a separate Muslim Personal Law, according to me it is compulsory for a Muslim to make a will as per the guidelines laid by Allah (swt) in Surah Nisa 4:11-12, so that it forces the law to execute Islamic Shari'ah as per your will.

It is the right of every citizen of a non-Muslim country, to will his property as per his desire, because in the absence of will each country has its own method of distributing the wealth.

It may be obligatory as well on a person to make a will, with regard to the dues of others where there is no proof, lest they be lost or neglected, because the Prophet (pbuh) said: “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him."” [Bukhari, al-Wasaayaa 2533].

One should also ‘will’ if he fears some kind of corruption or dispute among the heirs, especially in a non-Muslim country. 

However, one does not have the right to make a will for the legal heirs as per his own inclinations (or wishes), because Allah (swt) has defined the share of each heir, and He has explained who inherits and who does not inherit. So it is not permitted for any person to transgress the limits set by Allah (swt). 

“And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the fire to abide eternally therein, and he will have a humiliating punishment” [An-Nisa 4:14]

Allah (swt) has permitted us to make a will to whomsoever we wish other than the legal inheritors for a maximum of one-third of our wealth. This will help to donate for any mosque, welfare work, poor relatives etc.

The Prophet (pbuh) said: “Allah was being generous to you when He allowed you to give one-third of your wealth (in charity) when you die, to increase your good deeds.” [Ibn Maajah, Kitaab al-Wasaayaa, Hadith No. 2709]

Therefore one can will upto one-third of his wealth to be used for charitable purposes or else one can also give it to the people apart from the legal heirs, because the Prophet (pbuh) said: “There is no will for the heirs”. [Tirmidhi, Kitaab al-Wasaayaa, Hadith No.2120] . And Allah knows the best.

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4. INHERITANCE CONCEPT IN ISLAM

Question :

Please explain Islamic view on inheritance?

Answer :

This article gives an overview of the Islamic laws of inheritance with the aim of increasing the awareness of the Muslim community living in the west regarding this important aspect of Islamic law. The scope of this article is confined to traditional Sunni Islamic law.

When a Muslim dies there are four duties which need to be performed. These are:

1.       Funeral Expenses: That the expenses for the necessary requirements from the time of death until completion of the burial be drawn as a first charge from the estate.

2.       Debts & Obligations: Thereafter, from the remaining Tarakah (estate) all debts including unpaid Mah-r (dowry) shall be paid. Both, or either one, of these debts shall be second charge to be drawn from the estate (Tarakah).

3.       Execution of Will: Thereafter, any Wa’siyah (testament or bequest) in favor of non-heirs shall be fulfilled from one-third (1/3) of the Tarakah (remaining estate). This due and liability shall be third charge drawn from the remaining estate.

{Islaamic Shariah only allows a Wa’siyah in one third of the Tarakah (remaining estate). The Shariah disallows any portion of Wa’siyah, which is in excess of 1/3 (one third) of the Tarakah. This Wa’siyah shall be a first charge to be paid before the rightful inheritors receive their share from the Tarakah.}

4.       Distribution: Lastly, the Tarakah (final residue) of the estate shall be distributed among the rightful heirs of the deceased Muslim according to the law of inheritance specified by the Glorious Quran, Sunnah, and Ijmaa.

It is assumed that the preliminary issues have been resolved and we shall confine ourselves principally to discussing the fourth and last duty. The task is to firstly, determine which of the relatives of the deceased are entitled to inherit and secondly, to determine the quantum share entitlement of each of the heirs concerned.

Needless to say Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty says, "It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any opinion in their decision. And whoever disobeys Allah and His Messenger, has indeed strayed into a plain error." [Al-Ahzab 33:36]

The particular importance of the Islamic laws of inheritance is obvious from the verses immediately following those verses giving specific details on inheritance shares, "These are limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys Allah and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success”.(13) "And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment." [An-Nisa 4:13-14]

The laws of inheritance take on an even greater prominence in Islam because of the restriction placed by Sharia on the testamentary power of the testator as we shall see later in this article.

The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world.1"

Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." (Sahih al-Bukhari)

By specifying clear-cut entitlement and specific shares of female relatives, Islam not only elevated the position of women but simultaneously safeguarded their social and economic interests as long ago as 1400 years. The Quran contains only three verses [4:11, 4:12 and 4:176] which give specific details of inheritance shares. Using the information in these verses together with the traditions of the Prophet Muhammad (SAWS) as well as methods of juristic reasoning, the Muslims jurists have expounded the laws of inheritance in such meticulous detail that large volumes of work have been written on this subject.

"…Allah commands you regarding your children. For the male a share equivalent to that of two females… " [An-Nisa 4:11]

This first principle which the Quran lays down refers to males and females of equal degree and class. This means that a son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son’s son inherits twice as much as a son’s daughter and so on. This principle is however, not universally applicable as we shall see later in verse 4:12, the descendants of the mother notably the uterine brother and uterine sister inherit equally as do their descendants.

"...If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half...." [An-Nisa 4:12]

Women in this context refers to daughters. The Quran gives the daughter a specific share. In legal terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The Quran mentions nine such obligatory sharers as we shall see later. Muslims jurists have added a further three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a total of twelve relations who inherit as sharers.

If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter. In the absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.

If there is only a single daughter or agantic granddaughter her share is a fixed one-half, if there are two or more daughters or agnatic granddaughters then their share is two-thirds. Two or more daughters will totally exclude any granddaughters. If there is one daughter and agnatic granddaughters, the daughter inherits one-half share and the agnatic granddaughters inherit the remaining one-sixth, making a total of two-thirds. If there are agnatic grandsons amongst the heirs then the principle that the male inherits a portion equivalent to that of two females applies.

"....And for his parents for each of them there is one-sixth of the inheritance if he has a child, but if he does not have a child and the parents are the heirs then for the mother one-third...." [An-Nisa 4:11]

The Arabic word "walad" has been variously translated as child, son, children and offspring by translators. However, there is universal agreement amongst the Sunni Muslim jurists that "walad" here refers to any child or agnatic grandchild (grandchild through son).

If there is a child or agnatic grandchild amongst the heirs then each of the parents inherits one-sixth. In the absence of a child or agnatic grandchild the mother inherits one-third, the share of the father is not mentioned under these circumstances. The father in fact inherits as a residuary (a residuary heir gets whatever remains of the inheritance after the Quranic sharers have been allocated their shares, residuary heirs are generally male agnates) under these circumstances.

To these two Quranic heirs, the mother and the father, the maternal grandmother and paternal grandfather have been added by analogy. The maternal grandmother substitutes the mother in the latter's absence.

"....but if he has brothers (or sisters) then for the mother one-sixth...." [An-Nisa 4:11]

The consensus of opinion is that the word "akhwatun" used in the Quranic text means two or more brothers or sisters of any kind. So that any combination of full, consanguine or uterine brothers and sisters, if two or more will mean that the mother inherits a one-sixth share.

"....And for you there is one-half of what your wives leave behind if there is no child, but if they leave a child then for you there is one-fourth of what they leave behind...." [An-Nisa 4:12]

Again according to Islamic law the word "walad" here is interpreted as child or agnatic grandchild. The husband, another Quranic heir, inherits one-half in the absence of a child or agnatic grandchild and one-quarter in the presence of a child or agnatic grandchild.

"…And for them one-fourth of what you leave behind if you did not have a child, but if you have a child then for them one-eighth of what you leave behind; …" [An-Nisa 4:12]

This statement gives us the ruling on the share of the wife (widow). The share of the wife is one-quarter in the absence of a child or agnatic grandchild and one-eighth in the presence of a child or agnatic grandchild. Two or more wives share equally in this prescribed share.

Before continuing with the translation of verse 4:12 let us consider a situation where a woman dies leaving behind a husband and both parents as the only heirs.

The husband inherits one-half of the estate, there is no argument on this point. However, if we give the mother a one-third share then the father is left with only one-sixth. Should the male (father) not get twice the share of the female (mother) of equal degree and class?

This problem arose during the caliphate of Umar ibn Khattab (RA). After consultation with the learned companions the majority opinion was that the father should get twice the share of the mother, that is to say, the principle that the male inherits the share of two females is upheld. The father therefore, inherits one-third and the mother one-sixth

In light of this ruling the sentence of verse 4:11 on this matter which reads, "...but if he does not have a child and the parents are the heirs then for the mother one-third." is interpreted to mean, "...but if he does not have a child and the parents are the (only) heirs then for the mother one-third."

"....And if a kalala man or woman (one who has neither ascendants nor descendants) is inherited from, and he (or she) has a (uterine) brother or (uterine) sister then for each of them (there is) one-sixth. But if they (uterine brothers and sisters) are more than that then they are sharers in one-third (equally)...." [An-Nisa 4:12]

The interpretation of the second half of verse 4:12 has been a source of controversy, one reason being the meaning of the word "kalala". This word "kalala" occurs only in two places in the Quran [4:12 and 4:176] and on both occasions regarding inheritance. "Kalala" may mean "one who leaves neither parent nor child" or "all those except the parent and child". It is generally taken to mean the former.

It is universally agreed that the siblings referred to in this verse are uterine siblings (those with the same mother but different fathers).

The uterine siblings only inherit in the absence of any descendants or ascendants. If there is only one uterine sibling he or she inherits a one-sixth share. If there are two or more uterine siblings they together inherit a one-third share equally.

The heirs mentioned in the Quran (mother, father, husband, widow, daughter, uterine brother, full sister, uterine sister, consanguine sister) together with the three heirs added by juristic method of analogy (paternal grandfather, maternal grandmother and agnatic granddaughter) form a group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs when entitled to inherit are given their fixed shares and the remaining estate is inherited by the residuaries (asaba).

Under Islamic law some of the Quranic heirs, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and the mother, can also inherit as residuaries under certain circumstances.

Certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. There are several rules of exclusion which determine the exclusion of some heirs by the presence of others. It not possible to discuss all these rules in an article of this nature but in brief :

1.   A person (e.g. Brother) who is related to the deceased through another (i.e. Father) is excluded by the presence of the latter,

2.    An individual nearer in degree (proximity) to the deceased excludes the one who is remoter within the same class of heirs (son excludes all grandsons),

3.   Full blood excludes half-blood through father (so a full brother will exclude a consanguine brother but not a uterine brother)

The majority view is that the full and consanguine brother is not excluded by the paternal grandfather. However, the Hanafi fiqh allows the paternal grandfather to totally exclude the agnatic siblings.

Heirs may also be prevented from inheriting by disqualification. The only two practical situations that are causes of disqualification are difference of religion and homicide.

The Prophet (SAWS) said, "A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim." (Sahih al-Bukhari)

Generally speaking, and this is also the majority view, a Muslim cannot inherit from a non-Muslim. Although the Hanafi fiqh does allow a Muslim to inherit from an apostate.

Allah's Messenger (SAWS) said, "One who kills a man cannot inherit from him." (Tirmidhi and Ibn Majah)

All the jurists agree that intentional or unjustifiable killing according to Sharia is a bar to inheritance because if such people are allowed to kill and then benefit from the estate of the victim, it will encourage incidents of homicide.

It should be noted that only relatives with a legitimate blood relationship to the deceased are entitled to inherit from the deceased under Islamic law. Thus, illegitimate children according to Islamic law and adopted children have no part in inheritance. Incidentally legal adoption as practiced in the west is forbidden in Islam.

Under certain circumstances after allocation of the estate amongst all the heirs with fixed shares there is a residue left over but there are no residuaries. This residue called al-radd is returned to those sharers who are entitled to it, in proportion to their original shares. Conversely a situation may arise when the total sum of the assigned shares of the heirs with fixed shares is greater than unity. In this situation all the shares are abated proportionately by the doctrine of al-awl which involves decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators.

The amalgamation of the old customary agnatic law and the Quranic law has led to a number of problems which Muslim jurists have solved with great ingenuity. I shall mention one such case which occurred during the caliphate of Umar ibn Khattab (RA). A woman died leaving behind a husband, mother, two uterine brothers and two full brothers.

Umar ibn al-Khattab (RA) by systematically applying the rules gave the Quranic heirs their shares, husband (1/2), mother (1/6) and the two uterine brothers (1/3). The two full brothers acting as residuaries received nothing because there is no residue. The two full brothers, who would have been the sole heirs under the old customary agantic system, argued that even if their father was a donkey or a stone cast into the sea and they had no paternal relationship, they still had the same and equal relationship with the deceased as the uterine brothers through the same mother. Umar ibn al-Khattab (RA) reconsidered his ruling and allowed the full brothers to inherit equally with the uterine brothers in the share of 1/3.

The reader will have noticed that uterine (or cognate) relatives have not figured in the discussion thus far. This group of potential heirs contains all those relatives who are neither Quranic sharers nor male agnates and constitute the largest group within the context of inheritance. They are referred to as dhawu al-arham (or distant kindred). The majority view is that they are entitled to inherit when there are no residuaries and no sharers entitled to al-radd. Only the traditional Maliki fiqh does not allow the distant kindred to inherit, any residue is given to the bait al-mal (public treasury). The rules of inheritance amongst the distant kindred are relatively complex and hence not mentioned here.

The Islamic laws of inheritance that have been discussed here can be legitimately accommodated and practically implemented within many existing western legislation systems by way of a valid will. In fact for those Muslims living in the west a will becomes an essential necessity to prevent intestate succession law of the land being applied to their estate after they die.

The will should comply with the law of the land so that it can be executed after a person’s death without any unnecessary legal problems. Needless to say nothing in the will should be contrary to Sharia.

Sharia has placed two restrictions on the testator. Firstly, to whom he can bequeath his estate and secondly, the amount that he can bequeath. The majority view is that a bequest in excess of one-third of the net estate is invalid unless consented to by the legal heirs as is a bequest in favour of a legal heir.

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5. Inheritance: A complicated question of inheritance

Question :

When my father-in-law died, he left behind two wives, one of them non-Muslim with one son and one daughter. He also had two sons and three daughters by his second Muslim wife. His second wife bought a house and registered it in her name after his death. She subsequently died. My father-in-law had also two properties, the first registered in his two wives' names and the second in their two elder sons' names. The first wife's son demands a 50 percent share of all three properties. A lawyer has told me that the first wife's children do not have any shares in these properties. I will be grateful for your advice on how these properties be shared out.

Answer :

You seem to imply that all three properties belong to your father-in-law in spite of their registration in various names. You have to establish that either through the agreement of all heirs, or by some other proof. If you cannot, then the house which is registered in the two eldest sons' names will remain theirs and each of them will be able to take his share. If they have given pledge to their late father that they would be looking after their brothers and sisters, then they must do that. Obviously, there is no court which will be able to enforce that without their cooperation. If they claim that the house belongs to them, they have a legal evidence. The Prophet has warned against this in a very serious manner.

He says; "I am only a human being and you put your disputes to me. Some of you may have a stronger argument than that of his brother. If I give him something which belongs by right to his brother, I am only giving him a brand of fire which he may take or leave."

Here the two eldest sons have that strong argument. If their father had placed them in this position so that they will ensure that their brothers and sisters will have their fair shares and they refuse to do that, they are unfaithful to their trust. I understand that both wives are now dead. This complicates matter immensely, particularly with regard to the first property which is registered in their two names. Perhaps the best thing that could happen here is an agreement by all children of your father-in-law by his two late wives, that the property belonged in reality to him, and therefore, it should be divided among his heirs. If they do not agree and a court will decide on the inheritance of that property, the following will happen. One half of the property which is in the name of the Muslim wife will be inherited by her five children on the basis of one share for each daughter and two shares for each son. This assumes that your later mother-in-law did not have any other heirs, such as her parents. The other half of the property which was registered by the non-Muslim wife of your father-in-law could not be inherited by her children, because her children are Muslims, following their father's religion. Therefore, it is to be inherited by her non-Muslim relatives.

The third property is even more problematic. There are two possibilities here: If the price of that property was equal to or less than the share of your late mother-in-law in her husband's inheritance: A wife whose husband has children, inherits only one eighth of her husband's property. If he has more than one wife, then the wives' share altogether will be one eighth. But because the other wife was a non-Muslim, she does not inherit anything from her husband. The Prophet says that the followers of two different religions do not inherit from one another. As I have already mentioned, her children do not inherit from her because they are Muslims and she was not. Nor does she inherit from her husband or from her children if she survived them. Therefore, your late mother-in-law's share was one eighth of the full property of her husband. If that was sufficient to buy the house, then we consider it as her own property and it goes to her own children. The other children of your late father-in-law do not take any part of this house. This sharing here is a one seventh share of each of the two sons. This assumes that she had no other heirs. Her parents would have inherited from her as well if they had survived her.

The other possibility is that the price of the property was larger than your late mother-in-law's share: In this case, the best thing is to turn that property to your father-in-law's estate which should be shared by his heirs. The claim of the first wife's son for a 50 percent share of everything is inadmissible. You will have to explain to him that the sharing of inheritance has been pre-determined by Allah. In this case, whatever is finally agreed to be part of your father-in-law's estate should be shared out in the following manner: One eighth to his second wife. She receives her share because she survived her husband. The remainder goes to all children by both marriages. Altogether, he had three sons and four daughters surviving him. The rest of his property, i.e. after payment of one eighth to his Muslim wife, should be divided to ten shares, giving one share to each of the daughters and two shares to each of the three sons. Again this assumes that neither of your father-in-law's parents had survived him. If either did, then they receive one sixth share each before dividing the remainder among his children. There is further division to be made, - that of the share of your late mother-in-law. She is inherited only by her own children, not by the children of the first wife. If neither of her parents is alive, her property is divided into seven shares, giving one to each daughter and two shares to each son.


Our Dialogue ( Source : Arab News - Jeddah )

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6. Inheritance: When there is no son

Question :

A man died leaving behind his wife, five daughters, and one brother who has two sons. How will his property be divided among them?

Answer :

The first thing to be paid out of the estate of the deceased is the settlement of any debts he might have left unpaid. Secondly, his will should be executed. A Muslim may leave up to one third of his property to people other than his heirs by will. He may apportion certain parts of his property to any relatives who are not assigned shares of his inheritance according to the Islamic system. He may also wish to give away something for charity. When this man's debts are paid and his will is executed, the remainder is divided among his heirs as follows: one eighth to his wife and two thirds to be divided equally among his five daughters. The remainder goes to his brother. In this particular case it comes to just over one fifth. His two nephews receive nothing.


Our Dialogue ( Source : Arab News - Jeddah )

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7. Will: A will that should not be implemented

Question :

Before his death, my husband wrote a will which makes me the whole beneficiary of the house he owned, whether I wish to occupy or let it, provided that I do not get married. If I am married again, the house should be sold, in which case I get 50 percent of the price and my husband's son and two daughters would share the other half equally. My late husband's children understand and accept his will. I am now considering selling the house, but a relative of mine has created some doubts in my mind about the legitimacy of my husband's will. I would be grateful for your advice. May I ask full guidance on how I should write my own will? I have no children of my own, but I have one sister and two brothers, only one of whom is a full brother. May I add that in my country the Islamic family law is not recognized?

Answer :

One of the most important aspects of Islamic law is the way it deals with inheritance which is an area where it is easy to deny the rights of the weaker elements in the family and in society at large. For example, there are certain communities, some of whom profess to be Muslims, but nevertheless deny women all rights of inheritance. In other areas where the marriage of a daughter is an extremely expensive affair for her father, it is considered that if a father had married off his daughters, then he had done all his duty by them and whatever estate he leaves behind should be shared by his sons. I realize that none of this applies to the Muslim community in your country.

However, because you are a small minority, many people tend to accept, knowingly or unknowingly, the prevailing traditions or laws thinking that Islam has no objection to them. Your husband has made out his will thinking that it serves the best interests of his surviving relatives. It may be so, but he did not refer to the Islamic law of inheritance which is very detailed. What I would like you to know is that the Islamic law of inheritance has been laid down by Allah Himself who has stated its provisions in detail, apportioning shares of the estate to close relatives in all cases. Scholars have studied this system in depth and its provisions have been made clear for all situations. Hence, there can be no excuse for a Muslim man or woman to deal unjustly with any one of his or her heirs or to deny any of them his or her apportioned share, or indeed to give any of his heirs more than the share Allah has given him or her. What we have to remember is that no one may disinherit any heir, nor indeed can a person give any heir more than his or her apportioned share.

The Prophet says very clearly: "No will may be made in favor of an heir." You are one of your husband's heirs, according to the provisions of the Islamic law Allah Himself has enacted. Because your late husband had children, although they are by an earlier marriage, you are entitled to receive one eighth of everything that he had left behind, whether in real estate, cash, shares, furniture, etc.

The remainder should be divided between his other relatives. You have not told me whether he left behind any other relatives, such as a parent, a grandparent, or other children. Assuming that he had none, then you are his only heir who has a specified share. When any debt he left outstanding had been paid out and when the provisions of his will to any person who is not an heir have been carried out, you receive one eighth of his estate. The other seven-eighths go to his children whom you have mentioned as one son and two daughters. The son receives half of all that and the two daughters share the other half equally. This is the division which you should make sure to implement in order to comply with Allah's orders. You should speak to your late husband's children and explain the situation and carry out the division.

You may end up receiving much less than what your late husband wanted you to receive, but his wishes cannot overrule divine orders. The thing to do with his will is to disregard it altogether so that he may not have to account for it on the day of judgment. Perhaps I should emphasize that what should be disregarded in his will is the provisions relating to you and his children. If the will includes other provisions, these should be carried out if they are in line with Islamic law.

If a Muslim does not leave any will, then all his estate should be divided among his heirs in accordance with the Islamic law. The will, from the Islamic point of view, is to cater for those relatives who are not among heirs, or to give away what a person wants to give to charity. Therefore, you need not make a will in favor of your brothers and sister because they will receive their shares automatically if they are among your heirs. You have not told me whether any of your parents is alive. I can tell you that if your father is alive, then your sisters and two brothers will receive nothing.

Assuming that you have no surviving parents or grandparents, and knowing that you have no children, then your brothers and sister are your only heirs. Your property should be divided into five portions, with your sister receiving one portion [20%] and two portions [40%] going to each of your brothers. If you need to make a will in their favor in order to ensure that they receive their proper share, then these are the lines on which you should make your will. Otherwise, you are entitled to dispose of one-third of your property as you deem fit, in order to look after some poor relatives who are not heirs, such as an aunt, a poor cousin, etc.

By the way, if you decide to marry again, then the situation will change, because your new husband will be one of your heirs, and if you remain childless, then he would be entitled to receive one half of what you leave behind. If you have a child, then your husband's share will be reduced to one quarter. Moreover, if you have a child, then your brothers and sister will cease to be among your heirs.


Our Dialogue ( Source : Arab News - Jeddah )

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8. WOMEN MAKING WILL

Question :

Does Islam allows, the women is married or unmarried, to make a will?

Answer :

Any adult woman, irrespective whether she is married or unmarried, has the right to own or dispose any of her property, without consultation. If she wants, she can take consultation or not. She has the right to make a will, Islam does not prohibit her that.

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9. WAQF INHERITANCE

Question:

A woman died leaving behind 4 daughters, 2 sisters, and a brother who has 6 sons and 6 daughters. She left a house but she endowed it for Allah before she died. Do the heirs have the right to consider it heritage and start dividing it?

Answer: 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 Allah 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 Allah, 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 Allah 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 Allah 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.

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