The Laws Of Inheritance In Islam - 6.0

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


The Shares When Dividing The Estate of the Deceased

The six obligatory shares mentioned in the Qur'an in (Surah An-Nisaa: Ayat 11~12) are: one-half, one-fourth, one-eighth, two-thirds, one-third and one-sixth.

These amounts will go to ten categories of people:

1. X's husband

2. X's wife

3. X's father

4. X's mother

5. X's daughters

6. X's son's daughters; or X's son's son' daughters, or X's son's son's son's daughters, and on down

7. X's sister

8. X's father's father

9. X's mother's mother or father's mother

10. X's half brothers or half sisters from the same mother.


A summary of X's husband's share:

X's husband receives 1/2 share if there is no inheriting descendant.

X's husband receives 1/4 share if there is an inheriting descendant.

X's husband's share is not eliminated by anyone.



Explanation:



X's husband receives one-half the estate when X has no child who may inherit, even if the child is from a different husband. (The word child or "Walad" in Arabic - includes both males and females of all ages). X's husband also receives one-half when X's son has no child who may inherit.

On the other hand, X's husband receives one-fourth the estate when X has a child who may inherit, whether it is a child of X by this husband or a different husband,and whether male or female, or when X's son has a child who may inherit.


A summary of X's wife's share:


X's wife receives 1/4 if there is no inheriting descendant.


X's wife receives 1/8 if there is an inheriting descendant.

X's wife's share is not eliminated by anyone.


Explanation:

X's wife receives one-fourth the estate when X has no child to inherit (even if by a different wife); and X's son has no child to inherit.

However, X's wife receives one-eighth the estate when X has a child to inherit, or X's son has a child to inherit (whether X's son is from her or from another wife).

If there are two, three, or four wives, they jointly receive the one-fourth or one-eighth. This means that - the share apportioned to one wife is given to two or more, thus divided up between them.




A summary of X's father's share:

X's father receives 1/6 if there is an inheriting descendant.

X's father is the Universal Heir if there is no male inheriting descendant. (The term 'Universal Heir' shall be explained later below.)

X's father's share is not eliminated by anyone.

Explanation:


X's father receives one-sixth of the estate when X has a son to inherit, or when X's son has a son to inherit, or when X has a daughter or X's son has a daughter, who may inherit; though in such a case, the father takes the one-sixth plus the remainderr of the estate as the Universal Heir.


X's father is the Universal Heir i.e. by himself, he takes the whole estate if there are no others who have an obligatory share coming; or if there are such others, he receives the remainder of the estate after they have received their shares; when X has no son to inherit and X's son has no son to inherit.




A summary of X's mother's share:

X's mother receives 1/6 if there is an inheriting descendant, or if there are two or more of X's brothers or sisters.

X's mother receives 1/3 of the remainder after deducting the share of X's husband or wife in cases where the heirs include both X's father and the husband or wife but no inheriting descendant.

X's mother receives 1/3 of the estate when none of the above mentioned heirs exists.


X's mother's share is not eliminated by anyone.



Explanation:

X's mother receives one-third of the estate when all three of the following are the case:

(a) X has no child (male or female) who may inherit, nor does X's son has a child.

(b) X does not have two or more brothers or sisters, whether full brothers or sisters or half brothers or sisters from either parent.

(c) and the heirs do not include X's husband and X's two parents, or X's wife and two parents, of which X's mother is one of them.


X's mother receives one-sixth of the estate when X has a child who may inherit (non-(a)), or when X has two or more brothers or sisters (non-(b)).


X's mother receives one-third of the remainder after deducting the share of X's husband or wife when the heirs include X's husband and two parents, in which case she receives one-third of the remainder after X's husband receives his share of one-half, meaning she receives a sixth of the estate, as that is a third of the remainder, and X's father receives the rest (non (c)). Refer to Example 1 below:


Example 1:


Shares = 6


Husband = 3


Mother = 1


Father = Universal Heir = 6 - (3+1) = 2



In a situation when the heirs include X's wife and two parents; hence the mother receives one-third of the remainder after X's wife receive her share of one-fourth, meaning that the mother receives one-fourth of the estate, as that is a third of the remainder, and the father receives the rest, as calculated below:



Example 2:

Shares = 4


Wife = 1


Mother = 1


Father = Universal Heir = 4 - 2 = 2




A summary of X's daughter's share:


X's daughter receives 1/2 if there are no other of X's sons or daughters, whether full or half brothers of sisters to her.


X's daughter receives 2/3 for her to share equally (if there are no sons) with other daughters, if any.


X's daughter is Co-Universal Heir with X's sons(s) if existent; meaning that they jointly constitute the Universal Heir, dividing this share so that each male receives twice the amount of each female; since men are obliged to support women in Islam and not vice versa.


X's daughter's share is not eliminated by anyone.


Explanation:

X's sole daughter - who is without a Co-Universal Heir such as her brother, and without someone else on her own level, such as her sister - receives half of the estate.


Two or more daughters jointly receive two-thirds.




IMPORTANT NOTE:


It is important to remember that - for the persons named in the following rulings described below, the share of any of them who is related to X through an inheriting heir is eliminated by the existence of that heir, except for X's half brother from the same mother, whose share is not eliminated by the mother's existence.




A summary of the share of X's son's daughter:


X's son's daugher's share is eliminated if X's son exist (an example of the above rule).


X's son's daughter receives 1/2 if X has no daughter son's son or any other daughter of a son.


X's son's daughter receives 2/3 for her to share equally with the other daughters of X's son(s), if X has no daughter(s) or son's son(s).


X's son's daughter receives 1/6 when there is a sole daughter.


X's son's daughter is Co- Universal Heir with X's son's son(s), when in the absence of X's daughter, dividing this share of each male receiving twice the share of each female, as already discussed above.


X's son's daughter's share is eliminated when X has two or more daughters.

When X's sole daughter exists, X's son's daughter(s) receives one-sixth of the estate (if there are more, they share the amount), which with the sole daughter's share of one-half, makes two-thirds, which is the maximum that may go to the category of daughters.




A summary of the share of X's full sister:


X's full sister receives 1/2 if there are no other full brothers or sisters.


X's full sister receives 2/3 for her to share equally with other full sisters.


X's full sister is Co-Universal Heir with full brother(s) if any, whereby each male receiving twice the share of each female.


X's full sister is Universal Heir through the existence of X's daughter(s).


Explanation:


X's full sister's share is eliminated when X's father or X's son exists.


X's sole full sister here meaning that no other full brothers or sisters exist, and thus - she receives one-half of the estate.


When there are two or more such sisters, and when there are no full brothers, the jointly receive two-thirds of the estate.


Discussion regarding X's full sister(s) and X's full daugher(s) are explained further below.


A summary of the share of X's half sister from the same father:


X's half sister from the same father receives 1/2 in the absence of X's full brother, full sister, other half sister from the same father, and in the absence of a half brother from the same father.


X's half sister from the same father receives 2/3 for her to share equally with other half sister(s) from the same father, when there are no full brothers or sisters,and no half brothers from the same father.


X's half sister from the same father receives 1/6 when there is X's sole full sister.


She is Universal Heir through X's daughters or X's son's daughters provided there are no full brothers or sisters, or half brothers from the same father.

She is Co-Universal Heir with X's half brother(s) from the same father, and, as has been explained above - the male receiving twice the share of each female.


Explanation


Her share is eliminated if X's father or son exists.


X's sole half sister from the same father receives one-half of the estate.


Two or more such paternal half sisters jointly receive two-thirds of the estate.


When such a half sister, or two or more, exists with X's sole full sister, then the half sister(s) - jointly, if more than one - receives one-sixth, which with the half that goes to the full sister, takes two-thirds.

X's full sister(s) is Universal Heir through X's daughter(s). If X has no full sisters, X's half sisters by the same father are the estate's Universal Heirs through X's daughter(s).

An example of the former is when the heirs are X's daughter and full sister. The daughter receives one-half, and the sister receives the rest, being the Universal Heir.


Example 3:


Shares = 2


Daughters = 1 portion


Full sister = Universal Heir = 2 - 1 = 1 portion


Thus daughters obtain 1/2 of the total portion, while sister obtains the remaining 1/2.



Example 4:

Another example is when there are X's two daughters, a full sister, and a paternal half sister, in which case the two daughters jointly receive two-thirds, and the full sister receives the rest as universal heir), while the paternal half sister's share is eliminated by the full sister's universal heirship:


Shares = 3


2 Daughters = 2/3 - each daughter to receive 2/3 x 1/2 = 1/6 portion


Full sister = 3 - 2/3 = 1/3 portion

Half sister = eliminated, thus = 0 portion




A summary of X's grandfather's (father's father's) share:


His share is eliminated if X's father exists.


X's grandfather's (father's father's) share is 1/6 if X has an inheriting male descendant.


X's grandfather (father's father) is a Universal Heir in the absence of both X's father and any inheriting male descendant.


Explanation:


If X's brother(s) or sister(s) exists, then:


When there is no other heir who has an obligatory share coming, then the grandfather receives whichever of the following two alternatives that would yields the maximum:

(a) 1/3 of the estate; or

(b) divide the estate with X's brother(s) or sister(s) as if he were one of them, the male receiving twice the share of the female. If only X's sister(s) exists, then she becomes Co-Universal Heir with him; but


(c) when there are one or more other heirs who have no obligatory share coming besides the brother(s) or sister(s), then the grandfather receives whichever of the following three alternatives yields the maximum:


(i) 1/6 of the estate; or


(ii) 1/3 of the remainder after the (non-brother/sister) heir(s) receives their share; or


(iii) dividing the estate with X's brother(s) or sister(s) as if he were one of them, the male receiving twice the share of the female. If only X's sister(s) exists, then she becomes Co-Universal Heir with him.

As for the grandfather, sometimes X's brothers or sisters exist with him and sometimes they do not.

When they do not, then the grandfather receives one-sixth of the estate of X's son or son's son; or X's daughters or son's daughters if they exist; but in such a case he takes the sixth plus the rest as Universal Heir); while the grandfather is the Universal Heir in the absence of X's son or son's son; or daughter or son's daughter.

When X's full or paternal half brothers or sisters exist, then sometimes there are other inheriting heirs and sometimes not.

When besides X's brother(s) or sister(s), the grandfather's co-survivors do not include other inheriting heirs, the grandfather divides the estate with the brothers and sisters as if he were one of them, and if there are only sisters, then he is Co-Universal Heir with the sisters.

But such a division is only effected when it does not result in less than one-third of the estate going to the grandfather. If it would result in less than a third for him, then his obligatory share is one-third of the estate, and the brothers or sisters divide the rest between them, the males receiving the share of two females.


This is illustrated by the following examples, in each of which the grandfather receives at least a third:



Example 5

Heirs are = X's grandfather and one sister:

Shares = 3


Grandfather = 2


Sister = 1




Example 6

Heirs are = X's grandfather and two sisters:


Shares = 4


Grandfather = 2


Sister = 1


Sister = 1



Example 7

Heirs are = X's grandfather and three sisters:


Shares = 5


Grandfather = 2


Sister = 1


Sister = 1


Sister = 1



Example 8

Heirs are = X's grandfather and four sisters:

Shares = 6


Grandfather = 2


Sister = 1


Sister = 1


Sister = 1


Sister = 1



Example 9

X's heirs are = X's grandfather and one brother:


Shares = 2

Grandfather = 1


Brother = 1




Example 10

X's heir are = X's grandfather and two brothers:


Shares = 3


Grandfather = 1


Brother = 1


Brother = 1




Example 11

X's heir are = X's grandfather, brother and sister:


Shares = 5


Grandfather = 2


Brother = 2


Sister = 1




Example 12

Heirs = X's grandfather, brother and two sisters:


Shares = 6


Grandfather = 2


Brother = 2


Sister = 1


Sister = 1


In each of the above examples i.e. from Example 5 to Example 12 - the grandfather divides the estate with the other heirs, whereby the male receiving the share of two females.

The Laws Of Inheritance In Islam - 5.0

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


The Four Preventives of Inheriting an Estate Division Share

'Preventive' here means - that if someone is an estate division heir, but one of the following characteristics exists in him, then he may not inherit. Thus, in calculating the estate division, an heir who is made ineligible by a preventive is considered non-existent. Such a person is thus a non-heir, and as such is eligible for a bequest, under the condition that X wills him one.

The first preventive is killing. Whoever kills X may not inherit from him, no matter whether the killing was:

1. Lawful, as in retaliation, or imposing a criminal penalty;

2. Without lawful right;

3. Accidental;

4. Intentional;

5. Direct-Unintentional; such as Z shooting while hunting,and the shot hitting X; or

6. Indirect-Unintentional; such as when Z is a causal factor in X's death - such as testifying to an act of X's that calls for retaliation against X (e.g. witness for Zina) , or such as digging a well into which X falls.

To summarise, whoever has a hand in X's death, no matter how, cannot inherit from him.


The second preventive is being non-Muslim. A Muslim may not inherit from a non-Muslim, and a non-Muslim may not inherit from a Muslim.


The third preventive is Slavery (- This factor is not really applicable in this day and age)


The fourth preventive is uncertainty as to who died first,such as when X and Z both drown or both die in the collapse of a building, and it is not known who died before the other. In such a case neither may inherit from the other.

The Laws Of Inheritance In Islam - 4.0

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


Irth (Estate Division)

Estate division refers to the share allotted to each heir by Sacred Law.

The scriptural basis for estate division, before the consensus of Ulama come into ruling, consists of the Qur'anic Ayats on Inheritance, as marked below -

Allah SWT says in the Qur'an:

"Give unto orphans their wealth. Exchange not the good for the bad (in your management thereof) nor absorb their wealth into your own wealth. Lo! that would be a great sin." (Surah An-Nisaa: Ayat 2)


Allah SWT says in the Qur'an:

"Allah chargeth you concerning (the provision for) your children: to the male the equivalent of the portion of two females, and if there be women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then the half. And to each of his parents a sixth of the inheritance, if he has a son; and if he has no son and his parents are his heirs, then to his mother appertaineth the third; and if he has brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is Knower, Wise. (Surah An-Nisaa: Ayat 11)


Allah SWT says in the Qur'an:

"And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother's side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage)." (Surah An-Nisaa: Ayat 12)


Allah SWT says in the Qur'an:

"They ask thee for a pronouncement. Say - Allah hath pronounced for you concerning distant kindred. If a man dies childless and he has a sister, her's is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is Knower of all things." (Surah An-Nisaa: Ayat 176)


Also, the Hadith of Rasulullah SAW provides concrete evidence of this injunction, where he (SAW) is narrated to have said:

"Give the obligatory shares of the estate to those who deserve them, and the rest belongs to the closest male to the deceased." (Bukhari & Muslim)

Encouragement to master the knowledge of estate division comes from such Ahadith as the one from the Eminent Companion of the Prophet SAW - Abdullah ibn Mas'ud RA, whereby he narrates that the Prophet Muhammad SAW said:

"Learn estate division and teach it to people, for I am someone who will be taken from you, and this knowledge will be taken from you and calamities will ensure, until two men will one day disagree about the obligatory apportionment and will not find anyone to judge between them."


How to Work an Estate Division Problem

To work an estate division problem, one should:

(a) Determine the amount of the deceased's estate after deducting the expenses (as explained below);

(b) Make a list showing which of the deceased's heirs mentioned - exist (as explained below);

(c) Eliminate from the list any heirs with preventives (as explained in next post InshaAllah);

(d) On a sheet of paper, copy the parenthesised introductory paragraph (e.g. "summary of x's share") for every heir that exists. This will include such individuals, as the deceased's:

1. Husband

2. Wife

3. Father

4. Mother

5. Daughter

Note:
The shares of the above-named family members are not eliminated by anyone, though the shares of those named below may be eliminated by the existence of certain other heirs.

6. son's daughter

7. full sister

8. half sister from the same father

9. grandfather (father's father only)

10. grandmother

11. half brother or half sister from the same mother

12. and then others (i.e. sons and so forth)


(e) The list of heirs who shares are eliminated by the other existent heirs should be crossed off;

(f) If any universal heirs exist, we should see which of them eliminates the shares of the other universal heirs;

(g) Thus, we proceed by making a table of the heirs remaining (after (e) and (f) above). In this table, one writes the type of heir, the fraction each deserves, with the universal heir receiving the remainder, if any, and then at the top, one writes the total shares - this being the common denominator of the fractions, after which one calculates the shares that go to each;

(h) If the fractions of those besides the universal heir add up to more than one (i.e.the total estate), then one must adjust for this, as further explained below;

(i) But if the fractions add up to less than the total estate and there is no universal heir to inherit the rest, then one must redistribute the shares, as further explained below.

One may practice and test one's skill at estate division by reading through the present section and doing the problems depicted in the tables, though to do all the problems one must have a full worksheet that contains all the informination mentioned in (d), (h), and (i), above, plus the rules concerning universal heirs discussed.

Finally, it is best to check one's answers with an Aalim (an Islamic scholar), preferably a teacher from whom to take instruction, since this is a subject that is easier to acquire from its masters than from books.


Expenses Deducted From the Estate Prior to Estate Division

The first thing obligatorily taken from X's property is the expense of preparing the deceased Janazah; such as - the cost of the water to wash him, the washer's fee, cost of the shroud and perfume placed therein, pallbearers' fees, and so forth, and the cost of burying the deceased. These expenses are deducted before X's debts are paid, before his bequests are fulfilled / his estate divided; unless there is a financial obligation due on the property itself, such as:

1. When there is Zakat due from any year that X had neglected to pay before his death;

2. When some of the property has been put up as collateral; or

3. When X dies bankrupt with unpaid-for merchandise among his property; which must be returned to the seller before paying other expenses from X's property.


After the above are paid, the following measures are taken, and the sequence given is obligatory:

1. X's debts are paid, though if a government takes non-Islamic estate taxes, these are deducted from the main part of the estate before debts or bequests, just as any other loss would be;

2. Then X's bequests are carried out from a third of what remains after debts; and

3. Then X's remaining property is divided between his estate division heirs.


Heirs

X's male heirs consist of:

1. X's son;

2. X's son's son, son's son' son, and on down;

3. X's father;

4. X's father's father, father's father's father, and on up; (Note: In the Laws of Inheritance, the term 'grandfather' refers only to the paternal grandfather)

5. X's full brother, or half brother from X's father or mother;

6. The son of X's full brother, or son of X's half brother from the same father;

7. X's father's full brother, or son of X's half brother from the same father;

8. The son of X's father's full brother or father's half brother from the same father; and

9. X's husband.


X's female heirs are:

1. X's daughter;

2. X's son's daughter, son's son's daughter, son's son's daughter, and on down;

3. X's mother;

4. X's grandmother (whether she is the mother of X's father or mother), great-grand-mother, and on up;

5. X's full sister, or half sister from the same father or mother;

6. X's wife.


Extended Family Members Who do not Normally Inherit

The following extended family members may no inherit from X's estate, except under the conditions to be discussed further below:

1. X's daughter's children (male or female);

2. X's mother's brother's sons;

3. X's X's sister's children, the sons or daughters of X's daughter's children, or the sons or daughters of X's sister's children;

4. X's brother's daughters - let them be full brother or half brother from the same father;

5. X's father's brother's daughters - let them be full brothers or half brothers from the same father;

6. X's father's half brother from the same mother;

7. X's mother's mother;

8. X's mother's brother or her sister;

9. X's father's sister; or

10. Anyone related to X through one of the above.

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.

The Laws Of Inheritance In Islam - 3.0

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)


The Bequest

X may devote one-third or less of his financial resources to bequests, but not more than this. One-third here means - a third of his property as it stands at the time of his death.


Poor Heirs

If X's heirs are not poor, it is recommended for X to devote a full one-third to bequests. If X's heir are not poor, then it is not recommended for X to devote a full one-third to bequests. Poor heirs here means - that they are not well off - i.e. as when they do not have any money at all, or a little, not enough for their expenses, and the other two-thirds of the estate that constitutes their obligatory shares which they deserve is insufficient.

Bequests More Than One-Third

If X wills more than one-third in bequests, then his dispositions for the portion in excess of one-third will not be valid. This applies when X has no one in particular to inherit the excess; who, if they existed, could have possibly given permission for the excess.

Thus, if X bequests in excess of one-third, but his heir refuses to authorise the excess, then the excess will not be valid. However, if the excess is permitted by the heir, or a group of heirs unanimously, then such a bequest will be valid. It is not valid for the heir to authorise an excess or refuse an excess before X's death.

It should be remembered that charitable expenditures made by X in his will, such as waqf (endowment), gift, and so forth are considered as part of the one-third of the property that may be bequeathed.

When There Are No Heirs

In cases where there are no heirs, the Muslim people have better right to X's property, and no individual has the entitlement in Shari'ah to waive this right.


When There Is Lack of Heirs

If there are no Muslim heirs, or if the existent Muslim heirs do not deserve the whole estate (e.g. when the only eligible heir is the husband/wife); such excess may not be disposed-off in bequests, but must be given to the Baitul-Mal (the Muslim common fund), if this exists.


Obligatory Expenditures

Bequests concerning obligatory expenditures are also considered from the bequeathable one-third, provided that X has stipulated that they come from it. If the bequeathable one-third does not cover these, despite X having stipulated that they come from it, then the excess is paid from the remaining two-thirds. Obligatory expenditures include such things as - paying debts, making up the Hajj, paying Zakat (including for any year that the deceased neglected to pay it), Kafarah (expiations), and the fulfillment of vows that would have been binding had X been well. Nevertheless, if X did not stipulate that these obligatory expenditures should come from the one-third, then they come directly from the other two-thirds.


Current Charitable Dispositions (e.g. Sadaqah, Hadiah etc.)

Current charitable dispositions of property made by X during his life, such as giving waqf (endowment), giving a gift etc. are considered as personal expenditures of X's own money; and he could spend it all without any objection if made while he was in sound health.

But if X makes such current dispositions under any of the following circumstances, when these are linked with his death, then the dispositions are considered to come from the bequest of one-third:

1. In the final illness which brought about X's death;

2. In military combat;

3. While travelling on rough seas in a storm;

4. As a final request before being killed; or

5. If X is a female, and dies while giving birth, or afterwards before separation of the placenta.

Otherwise, under any circumstances other than the above; or was, but the circumstance was not linked with X's death - then the disposition is not considered to be from the one-third of X's wealth for bequest.


Understanding the Major Difference Between Current Dispositions & Bequests

We distinguish between the above-mentioned current dispositions during one's life - e.g. gifts, waqf, donations, etc. with bequests by noting that - current dispositions are effective before X's death, while bequests are effective after.

Current dispositions are done, even if X uses up all his money to the extent that there is none left for heirs. On the other hand, as for bequests - unless X's heirs unanimously agree to allow any form of excess - are restricted to only one-third of the estate. Exceptions only come in when dispositions are announced during the death illness or other circumstance (exampled above), in which case they are limited to one-third of the estate, just as bequests are.

The Laws Of Inheritance In Islam - 2.0

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)


The Bequests Executor

Appointing an executor means for X to put Y in charge of his property, any of his young children, his bequests, paying his debts, or collecting his property from others.

The verbal form for this is:

"I appoint so-and-so to execute such and such a bequest."


The necessary conditions for the validity of X appointing Y as the executor of his bequest are:

(a) that Y be legally responsible (mukallaf);

(b) that Y be upright - meaning the uprightness of Islam, as it is not valid under any circumstances for Y to be a non-Muslim if X is a Muslim); and

(c) that Y must have the knowledge and capacity to properly undertake the bequest.


The following examples of X appointing Y as the executor of his bequest are legally valid:

(1) when X appoints Y as his executor at a time when Y is not legally eligible to be it, but by the time of X's death, Y is eligible (on the condition that the above conditions are fulfilled of course);

(2) when X appoints a group of two or more people as his executors, but he does not indicate to them specific roles, but rather says that they should manage the legacy collectively, then they must cooperate; and must not manage the work, its maintenance, and its related dealings as separate individuals. Cooperate here means that their acts proceed from the decision of the group i.e. via mashuarah (consultation); and does not mean for example, that when they buy something they must all conduct the transaction together. Thus, if all agree to permit something, it is sufficient for one of them to take the matter in hand and carry it out. In short - delegation after consent via mashuarah is permissible.

(3) When X appoints a person (let's call him W), and then after him another person (let's call him Y). Valid examples here may include the dialogues:

"I appoint W as executor until Y comes, but when Y arrives, he is the executor." ; or

"I make W as the executor for one year, and when it has passed, then Y is the executor."

(4) When X appoints Y as executor, authorising him to appoint in turn whomever he chooses as executor of the bequest (if the person fulfills the above qualifying conditions).

X's appointing of Y as the executor of his bequest will not be legally effective until Y accepts this responsibility after X's death, even if this acceptance is not immediately thereafter.

Both X and Y are entitled to cancel the appointment of Y as executor of the bequest whenever they wish; unless after X's death, Y feels it almost certain that the property will be lost through a wrongdoer appropriating it, in which case Y must not withdraw as executor, as it will be Unlawful for him to do so. However, in such a case, Y may continue as the executor with renumeration i.e. for a fee.

It is not legally valid to appoint an executor unless the bequest consists of some good work or pious act, such as - paying off a debt, making up a Hajj, looking after the welfare of one's children, and so forth. However this will not include actions that do not involve distribution of property, such as - marrying off the children. Acts of disobediences are also excluded by default.

When X's father is still alive and fit for guardianship, X may not appoint Y to look after the welfare of his children. This is the ruling.

The Laws Of Inheritance In Islam - 1.0

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


Bequests (Wasiyyah)

The difference between bequests (wasiyyah) and estate division (irth) - is that a bequest is the act of a living person disposing of his own property, even if it is to be implemented after his death, while estate division occurs after his death according to the Qur'anic Rules of Inheritance.

Because a bequest is the act of a living person with his own money, it is legally valid for a Muslim to bequeath up to a third of his property, even to a non-Muslim. Such rulings is similarly valid for a non-Muslim to bequeath his property to a Muslim.

Imam Nawawi RA has said about this:

"A bequest is legally valid from any legally responsible free person, even if non-Muslim." (as taken from the treatise - Mughni Al-Muhtaj Ila Ma'rifa Ma'ani Alfaz Al-Minhaj)

However, we must understand that it is invalid and Unlawful for a non-Muslim to inherit property through estate division from a Muslim, or vice versa.

The determining factor in the permissibiity of a Muslim and non-Muslim inheriting from each other is whether the property comes by way of a bequest (wasiyyah) made by the deceased before his death, in which case it is permissible, or whether it comes by way of estate division (irth) made after the deceased's death according to the Qur'anic Rules of Inheritance, in which case the difference between their respective religions prevents it.

The scriptural basis for the validity of bequests (wasiyyah), which takes ruling prior to any consensus of the Ulama, is the word of Allah SWT in the Qur'an:

"...after any bequest which has been made, and after any debts." (Surah 4: Ayat 12)


For ease of discussion, we will label individuals accordingly:

X = Al-Musi - i.e. the person who has made provision in his/her will for Z to receive the bequest (wasiyyah).

Y = Al-Wassiy - i.e. the executor appointed by X to make sure this is done.

Z = Al-Musa Lahu - i.e. the recipient of the bequest.

A bequest made by X is valid if he is legally responsible (mukallaf), even if he is a spendthrift.

Learning The Laws Of Inheritance In Islam - An Obligation

Allah SWT in His infinite Mercy has revealed many Commandments in the Holy Qur'an and through our beloved Prophet Muhammad SAW. This Allah SWT has done to guide mankind to the Straight Path, the path which leads us to entry into Paradise. One can only achieve this goal by following the religion of Islam.

Islam being a complete religion gave rights to every living creature. In the times of Jahiliyah (ignorance) of the pre-Islamic era: orphans, women and the weaker links in the human chain had become prey of many injustices and had no rights whatsoever. However, after the advent of Islam, this brought a change and a revelation that history had never witnessed before. Women, regardless of their dependency on men or their sensitive nature, were given rights which were previously either non-existent or ignored. Out of the many rights which were given to women at the dawn of Islam is - Inheritance.

In the Arabic language, Inheritance is known as "Faraa-idh", which is the plural of "Fareedah", which means something that has been fixed, set or determined. This branch of knowledge is known as "Faraa-idh" because it has been fixed by Allah in the Holy Qur'an.

The Holy Qur'an and our beloved Prophet Muhammed SAW laid much emphasis on the importance of Inheritance in Islam. In many Ahadith, our beloved Prophet Muhammad SAW talks of the importance of Inheritance in the Islamic manner and Allah informs humanity in the Holy Qur'an of its procedure.

The Prophet Muhammad SAW has said regarding learning Islamic inheritance and its importance: (mafhum)

"Indeed I am a man who will be taken away, therefore learn Fara-idh (The Laws of Inheritance) and teach it. The time of the disappearance of knowledge will come close, when two persons will dispute regarding an Islamic ruling and they will find no one to decide the dispute."

The above prophecy is indeed distressing, but true - and we have observed this occurring not only once, but numerous times in all parts of the world.

In another Hadith, our beloved Prophet SAW says: (mafhum)

"Learn Fara-idh and teach it; indeed it is Half of Knowledge."

In another narration, the Prophet Muhammad SAW has hinted to us about the importance and future of Fara-idh:

"It is my way and it is the first thing that will be taken away from my Ummah."

The great Companion of the Prophet Muhammad SAW - Saiyidina Umar Al-Khattab RA used to say:

"O people, learn Fara-idh with the same concern and effort with which you learn from the Qur'an."

It is reported that Umar RA also used to say:

"O Muslims, learn Fara-idh, it is an essential part of the knowledge of your Religion."

Through the light of the Holy Qur'an, the sayings of our Prophet Muhammad SAW and his Noble Companions RA - we can understand the importance of Inheritance in Islam. However, we have unfortunately begun to ignore our Islamic teachings, and we have started to follow the ways and the practices of non-Muslims, whereby these man-made laws will only allow one person or a few to receive inheritance. Such notions even reach ridiculous levels to the pinnacle of stupidity where we hear inheritance is passed to even a pet of the deceased.

Violation of Islamic rulings, and injustices to mankind leads to breaking ties which we witness clearly in this day and age. At times, the main cause of these broken relationships were all due to the lack of Islamic knowledge, and the abandonment of the Islamic rulings pertaining to Inheritance.

This brief reminder only serves as an encouragement to us all, so that we put it incumbent upon ourselves to learn and practice the Laws of Inheritance actioned under Islamic methodology. At all times, we should be ever ready to turn and refer to our Ulama who will guide us to live our lives - correctly and balanced on the Straight Path, using the Light of the Holy Qur'an and the Sunnah of the Prophet Muhammad SAW.