The Laws Of Inheritance In Islam - 3.5

FIQH: AHLUS SUNNAH WAL JAMA'AH - TRADITIONAL SHAFI'I SCHOOL OF JURISPRUDENCE


Quick Note:

X = The person making the bequest (wasiyyah)
Y = The executor elected by X
Z = The recipient of the bequest (wasiyyah)


Implementing Dispositions In Order

If one-third of X's estate does not cover the cost of the current dispositions which X made during his final illness, then - if these have been given in some order, they are implemented first thing first, then second, then third, and so on, in order of chronology.

Thus, if during his death illness, X said to his three friends P, Q, and R:

"I give P a gift of 100 dinars, Q - 100 dinars, and R - 100 dinars..."

But it turned out that X's total estate is only 600 dinars, then the gift to P and Q are valid, but we take back his gift to R, which is not valid because it exceeds the 200 dinars that is a third of the 600 dinars constituting the whole estate. This is what is meant by implementing them in order.


When Shares Are Divided Proportionally

The bequeathable one-third of the estate is divided proportionally if shares vary between all the recipients designated by X when:

1. When in cases of death illness, X did not state them in any particular order, and said to P, Q and R the effect e.g:

"I give you each a hundred dinars."

Thus the current dispositions from the bequeathable one-third is divided equally between them.

2. In cases where X has explicity made bequests, the bequeathable one-third will not cover all the bequests made, whether they were made separately or not.

All of the above of course, only holds if the heirs do not agree to permit more than one-third of the estate for bequests or current dispositions, since if they unanimously agree, it may exceed a third, even if it takes the whole estate.


Bequests Made to Non-Specific Individuals

Bequests made to non-specific individuals such as the poor etc. are effective when X dies. The intended recipient will own the property, without the fact that ownership will depend on them accepting it.


Acceptance & Refusal

When X bequeaths something to Z, the ownership of the article bequeathed is suspended, meaning that if Z accepts it after X's death, even if after some time has passed - then Z has owned it from the moment X died.

If Z declines to accept it, then X's heirs own it.

If Z accepts it, but then refuses it before having taken possession of it, this cancels his ownership of it.

If Z accepts it, but refuses only after having taken possession of it, it does not cancel his ownership, as his refusal is meaningless in such a case.


Conditional Bequests

It is permissible to make the implementation of a bequest subject to a condition, whether the condition is something occuring before X's death:

(example) "If Z enters so-and-so's house, I bequeath to him such and such of my property."

or after:

(example) "If Z enters so-and-so's house after my death, I bequeath to him such and such of my property."

Both styles of bequests exampled above are valid in Shari'ah.


Things Which May Be Bequeathed

It is permissible to bequeath any of the following:

1. The right to utilise something, while at the same time not bequeathing ownership of the actual thing;

2. Particular things;

3. Something not yet existent, e.g: "what this tree will bear";

4. Something not determinately known; let it be an unknown quality e.g: "the contents of this box", or an unknown quantity;

5. Something undeliverable, e.g. land in another country;

6. Something not currently owned at the time the bequest is made, but which X owns at the time of his death; or

7. Something impure (Najasa) that has a lawful use; such as a trained hunting dog, manure, oil contaminated with impurity etc; though not something impure of which its use is unlawful e.g. wine and pigs.


Those to Whom Bequests Are Valid

It is permissible for X to bequeath something to Z even if Z is:

1. A non-Muslim at war with Muslims (whatmore when Z is an ordinary non-Muslim);

2. A Jewish or Christian subject of the Islamic state (Dhimmis);

3. An apostate from Islam;

4. The person who kills X;

5. X's heir, provided X's other heirs permit him to receive it, though if they do not, then the bequest is not carried out;

6. A person yet unborn, in which case the bequest is paid to the person who is the guardian, who knows of the unborn's existence at the time X makes the bequest, provided that:

(a) the child is either born alive within six months of the time the bequest is made; or

(b) the child is born alive more than six months but less than four years after the bequest is made, during which time the mother has had no husband from whom the pregnancy could have resulted.


Cancelling One's Bequests

If X makes a certain item as a bequest, but then changes his mind - his taking it back is valid, i.e. him annulling his bequest.

X's doing any of the following is also considered taking it back, and thus cancels the bequest:

1. X's loss of ownership of the bequeathed article, such as by sale or gift;

2. X's subjecting the article to loss of ownership by putting it up as a collateral, offering it for sale, or making another bequest after the first bequest - that stipulates that the item be sold; or

3. When the name of the item changes, such as:

(a) wheat being ground into flour;

(b) flour made into dough;

(c) yarn / cotton woven into fabric; or

(d) when X mixes a particular item with other goods.


Chronology of Deaths and Its Effect On Bequests

If Z dies before X, the X's bequest to him is not valid.

If Z dies after X but before Z accepts the bequest, then Z's heirs may accept or reject it.