Inheritance
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Inheritance |
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Computer Software to calculate Inheritance |
| 1. The Harf Company from Egypt has a Arabic Inheritance program on CD |
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Arabic Sources on the Islamic Law of Inheritance |
| 1. The Siraajiyyah (Hanafi fiqh) |
| 2. Sheikh Saabooni from Mecca has written a good work |
| 3. All major fiqh works of all the mazaahib would have a chapter or section on inheritance |
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English Sources on the Islamic Law of Inheritance |
| 1. An English translation of the Sirajiyyah (Hanafi fiqh) was done by an Orientalist |
| 2. M.S. Omar of Durban, South Africa had written a work which was later revised and updated with some aspects from South African Law. |
| 3. The work by Professor Abdur Rahman Doi has some details on inheritance law |
| 4. Other works in English are available and visit the Islamic Bookshops for details |
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Urdu Sources on the Islamic Law of Inheritance |
| 1. The Urdu translation and commentary of the Sirajiyyah has been printed and done by numerous persons |
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Bequests |
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a wasiyyah (bequest) be made for a non-Muslim in an Islamic Will?
In one hadith, Nabi (SAW) said: A Muslim cannot inherit from a non-Muslim
and a non-Muslim cannot inherit from a Muslim. The implications of this
hadith could relate to a bequest as well. Although, a bequest is a form of
a gift, yet it differs from the nature of a gift in the sense that it is
extracted from the inheritance and estate of the deceased
after death. Thus, we cannot totally
exclude the inheritance aspect of a bequest and
therefore consider it
as a pure gift like a gift that is given in the
lifetime of the deceased, which is
void of an inheritance relation. This fact becomes profoundly manifest
when we consider the other section of the hadith, which prohibits a Muslim
(whether convert or a person who was a born a Muslim, due to one of the
parents being a Muslim while the other was Kaafir, and continued in life
to adopt Islam) from inheriting from a non-Muslim (immaterial whether
parent, brothers or sisters or any other related or non-related
non-Muslim). If, the non-Muslim (parent or other) were allowed to convert their estate to a Muslim through a bequest, then the entire estate of the
non-Muslim could be subject to the same principle since the non-Muslim is
either not governed by a divine code of inheritance distribution. Thus,
their (non-Muslim) entire estate cannot be partitioned into a bequest and
non-bequest section that has validity before Allah. When such a division
is claimed by Christians or Jews who are associated to divine religions,
then too, we have no certainty on the truth of the law due to changes they
made in their divine texts. If we allowed transferring non-Muslim assets to
a Muslim via a bequest, this would then enable the transfer to the entire
non-Muslim estate to a Muslim and simultaneously reflect a defect in the
Shari'ah by allowing a loophole to fulfil the objective of asset
transfer. This latter argument more strongly rebuts the permissibility
of a bequest in favour of a non-Muslim in an Islamic estate. There would be no problem if a disbeliever benefits in any manner through a Muslim institution that gets a the benefits of a bequest since, in such a case, the institute itself confers its rights or partial ownership after having acquired prior ownership of the proceeds of the bequest. This is the same when a Muslim inheritor confers or transfers parts of his ownership to a non-believer after having received inheritance from a Muslim. (Opinion by Ahmed Fazel Ebrahim) |
| Can the bequests be left to the discretion of the heirs so that they may allocate in conformity to financial or other spiritual and Thawaab (reward) considerations? Once a person has died without making a bequest, then the choice to make a bequest terminates and cannot be transferred to the heirs. The right to make the bequest is granted by Allah to a person prior to death without allowance for the right to extend to any period following death. Allowing heirs, to establish and decide the bequest percentage can only be allowed during the lifetime of the testator/testatrix and with the latter's consent. Where heirs decide to contribute to any course or institution from the estate, they can do so from deductions made from their individual allocations of the inheritance and in conformity to the willingness of each inheritor. A joint agreement to allocate a contribution, to non-inheritors or an institute, from the estate would be unfair to some inheritors in financial terms. Thus, each inheritor can allocate to such external contributions from their share and in relation to their financial position or other consideration. (Ruling inferred by Ahmed Fazel Ebrahim) |
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Secular and civil requirements of Muslim and Non-Muslim countries relating to Islamic Wills |
| What are the obligations upon Muslims regarding compliance to secular administrative requirements of an Islamic Will or estate ? Some countries have legal provisions that allow the drafting of a will in conformity to any wishes of the testator/testatrix. Thus, an Islamic will is allowed but only accepted if certain associated requirements are also complied with e.g. stipulation of having at least two witnesses on each page and that the witnesses are among those who do not inherit from the estate. Requirements of the latter nature do not violate the spirit of the Shari'ah in any way. Rather, such a requirement actually strengthens the will and its validity. This type of requirement is found in the South African legal system. These matters must be complied with to safeguard the Islamic interests of the estate of a deceased Muslim. (Ahmed Fazel Ebrahim) |
| Diverse juridical provisions and
formats of a will due to diversity of countries which follow different
legal systems The Islamic will, in the SA legal system, does not
have to specify the heirs to the estate but a general clause specifying
that the heirs would be determined by Islamic Law has been considered as
acceptable. The verification of the Islamic heirs is then fulfilled
through a certificate from an Islamic Organization that authenticates
the distribution and allocation to the heirs. The general provision,
relating to the heirs, within the Islamic Will in South Africa that
requires an Islamic distribution could allow the granting of dominance
to one mazhab over another in certain rare cases of distribution if a
mazhab is not chosen as a method of estate distribution within the
general Islamic provision.
Other states, like Australia, require an exact allocation to each heir and do not accept a general allocation. Thus, a table listing all the share allocations for each possible set or case of heirs has to be attached to the will. Although, this format seems initially prolonged but it allows juridical certainty in cases where the Fuqaha (Islamic jurists) have differed. (Ahmed Fazel Ebrahim) |
| What is the level and extent that we need to comply to secular and other legal provisions of secular States that differ from the Islamic Law of inheritance? In such cases, if there is no legal alternatives, it would still remain obligatory for the heirs to ensure mutual re-distribution to comply to the Shari'ah. (Ahmed Fazel Ebrahim) |
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Other Inheritance Issues |
| What is the rule where the estate of Muslims is distributed in terms of secular law or any other form of testamentary disposition that differs from the Shariah? The Shari'ah law of inheritance is obligatory upon every Muslim. Where the secular legal system differs from Islamic Law and distribution of the estate has already been concluded without Shariah compliance, Muslims are still obligated to transfer assets to the Islamic heirs in conformity to the Islamic rules of inheritance and would be obligated to do the necessary internal family adjustments to comply to the Shariah. (Ruling inferred by Ahmed Fazel Ebrahim) |
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Errors noted when wills were manipulated |
1. The witness provides a new I.D. number or passport number that was issued after the date of the will. 2. |
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Mazaahib differences in the format of distributing an Islamic Estate |
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Hanafi Rulings |
| The Hanafi opinion regarding the making of a bequest for unperformed Salaah. This opinion which has emanated from one of the Hanafi jurists and has no evidence in the Qur'an and Sunnah. Thus, even if there is a bequest made to pay for each Fard salaah made by the deceased there is no Shari'ah evidence to say that this will waive the obligation of salaah. In fact, such a imposition favours the rich and places the poor at a disadvantage. It would imply that the rich can hope for pardon for unperformed salaah because of their payment for salaah in the bequest but the poor cannot do so by monetary means. This ridicules the very Adl (justice) of Allah. (Ruling by Ustaaz, Ahmed Fazel Ebrahim) |
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Shafi rulings |
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Maaliki Rulings |
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The Hambali rulings |
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Other Shariah rulings |
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The Islamic Will |
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Disputes arising in the interpretation of bequests and wills and the need for arbitration |
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Gifts during the testator's/testatrix's lifetime |
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The role of the Ulema and Islamic legal Specialists |