ISLAMIC LAW OF SUCCESSION

1. General principles on Islamic succession

a. Succession
 Mirath or irth or faraid

b. Faraid – will prevail over wassiyyah

 Denotes the fixed shares of inheritance allocated to the legal heirs by the Quran and
Sunnah, right guaranteed by Allah

c. Legal heir (warith)

 Relatives upon whom property devolves after the decease of its owner by operation
of law

d. Estate (tarikah/tirkah)
 Comprises of all property that the deceased has owned, whether his ownership is of
the substance or corpus of a thing, moveable and immoveable, realty or personally

2. Importance of succession
a. Prophet: Law of inheritance is said to constitute half the sum of ilm (knowledge)

3. Succession during the pre-islamic period

a. The system of inheritance was designed to keep property within the individual tribe, to
maintain its strength as a fighting force, to preserve the relation between the tribes, to
kill the enemy and to be proud of the tribe
b. The tribe was patriarchal. Female relatives are excluded
c. 3 grounds for inheritance:
 The ability to carry arms though he is a male but still a child or too old and weak,
he is to be excluded from succession
 Treaty i.e an oath to fight and corporate together in peace and war, individually
or between tribes
 Adoption

4. Succession in the Islamic perspective

a. Inheritance based on blood relationship and marriage
b. Both man and woman can inherit 2:1
c. Parents and children will get their portion
d. Authority
 Case of Sa’d Al Rabi’
 Sunnah
5. 3 Pillars of succession/conditions for inheritance
a. Al muwarith (praepositus)
 The death of the praepositus must be determined whether by:
1. Actual death (certain, burial permit)
2. Judicial declaration
3. Presumption of death (missing)
 2 options
i. 7 years – Section 108 of the Evidence Act 1950
ii. 4 years – Section 80 of the Syariah Court Evidence (FT)
Act 1997

 Date of death is established from the date of the decree

declaring his death and not from the date of disappearance

 The distribution can only be made after the decree has been
issued

 Any heir of the missing person who dies prior to the date of
decree is not entitled as legal heir

 If a missing muwarith finally returns and all his estate has been
distributed, he can only recover property which has not yet
been disposed of. The heirs are not obligated to compensate
him

b. Al warith (legal heir)

 Legal heirs should be alive at the time of the deceased’s death

 Issue on uncertainty of death/simultaneous death

1. Hanafi, Maliki and Shafi – the legal heirs are not entitled to inheritance,
and they will not be counted as heirs when calculating the portion
2. Hanbali – the legal heirs are entitled to inheritance

 Issue of missing legal heir

1. If the legal heir is missing at the deceased’s time of death, he is
considered dead from the date of the disappearance and thus
predeceases the deceased
2. Rule of precaution – his share would be reserved until his status is
determined or until the court issues a decree announcing his death
3. His share would be reserved for 4 years from the deceased’s date of
death
 Issue of unborn baby
1. Considered to be alive and treated as a legal heir. His portion would be
reserved until its birth

 Free from any impediments

1. Slavery
2. Killing (Qatl)
 A killer does not inherit from his victim
i. Hanafi – impeded expect indirect killing (false
testimony) and non-actionable killing (legal)
ii. Maliki – killing must be intentional
iii. Shafi – killing is impeded in all situations
iv. Hanbali – killing must be intentional, without just cause
and punishable with either qisas, diyyah or kaffarah

 The intention will be determined based on the type of weapon

used

3. Different of religion
 Non-Muslim does not inherit from his Muslim and vice versa
 Difference of religion is not a bar to taking wasiyyah
 Apostasy
i. Hanafi – If return to Islam before the actual distribution,
the person is entitled to inheritance
ii. Jumhur – The person is impeded even though return
before the actual distribution

 Conversion
i. Hanbali – Entitled if revert before actual distribution
ii. Jumhur – The person is impeded even though return
before the actual distribution

 Who are the legal heirs?

1. Persons who are related to the deceased by blood relationship – nasab
 Non legal heir
i. Illegitimate child – within 6 months, still legitimate, if
no, maternal
ii. Step child/father/mother
iii. Adopted child
iv. Lawful mother/father
v. Child born from a marriage which is later declared void –
if father accepts, legitimate. Shafi says no.
vi. A child who suckled from a woman other than his
mother
 2. Spouse – marital relationship
 Whose marriage with the praepositus is valid and existing at the
time of the decease
 Valid – According to Islamic law
 Existing – Subsistence of the marriage at the time of the decease
i. Mutual rights of inheritance ceases as soon as the
marriage is terminated
ii. A marriage is deemed to be in existence constructively
as long as the wife remains in her iddah
1. Revocable (raj’i) – rights of inheritance continue
to exist
2. Irrevocable (ba’in) – rights of inheritance cease
to exist
a. Mutual consent (khuluq)
b. Judicial decree (fasakh)
c. Triple talaq – exception during marad al
mawt – Abdul Rahman Auf

iii. A wife who is divorced shortly before the husband’s

death and without consummation will not be entitled to
inherit since she is not required to observe iddah

3. Enfranchisement of slavery – no more relevant

 The master who has freed the slave may inherit the slave’s
property
 The kinship is obtained upon the freedom of the slave

4. Baitulmal
 If there’s asabah, the estate will never go to baitulmal
 Deceased dies leaving no heir or no residuary heirs to take the
balance of the property or he is a Muslim convert

c. Al irth/tarikah (estate)
 Property acquired by the deceased during his lifetime via. Sale and purchase,
inheritance, Hibah, wassiyyah, etc.
 Debts due to the deceased
 Shares
 Mahr or maskahwin which has not been paid by the husband until the death of
the wife
 EPF, Tabung Haji, Takaful
1. Nominee = trustee, not beneficiary
2. Distribute according to faraid
3. Nominee as beneficiary under conditional hibah is only provided under
section 142 IFSA 2013
  Conventional insurance
1. Non-shariah compliance
2. Only the premium paid by the policy owner is inheritable. The balance of
the insurance benefit is to be given to Baitulmal
3. If the legal heirs of the deceased fall under the category of fakir/miskin,
they are allowed to take the benefit accordingly

 Non-estate (no need to distribute according to faraid, payable to the dependent)

1. Property disposed of via. Sale, hibah and waqaf
2. Trust property
3. Khairat kematian
4. SOCSCO
5. Pension – payment of monthly pension paid to the deceased when he
was alive
6. Derivative gratuity upon death – die during the service (weekend or off
day included)
7. Ex-gratia – death occurs while carrying out the duties (bomba etc)
8. Joint account
9. Part of the estate claimed as jointly acquired property

6. Rights associated to inheritance

a. Death
b. Burial preparation
c. Settlement of debts (To Allah and to human beings)
d. Wasiyyah – testamentary gift
 Definition
1. An iqrar of a person made during his lifetime with respect to his
property or benefit thereof, to be carried out for the purposes of charity
or for any other purpose permissible by Islamic law, after his death

 Authority
1. 2:180
 It is prescribed, when death approaches any of you, if He leave
any goods that He make a bequest to parents and next of kin,
according to reasonable usage; This is due from the Allah fearing
2. 2:240
 Those of you who die and leave widows should bequeath for
their widows a year's maintenance
3. 4:11
 The distribution in all cases is after the payment of legacies and
debts

 2 limitations of wassiyyah
1. Not exceeding 1/3 of estate
  May be executed if the consent of other legal heirs can be
obtained. If exceed, need to make it 1/3
 The case of Sa`ad ibn Abi Waqqas

2. Not in favour of legal heirs

 The case of Abu Imamah

 Invalidation of wassiyyah
1. The testator becomes a person of unsound mind and dies in that state
(insanity)
 Section 12(a) of the Muslim Wills (Selangor) Enactment 1999

2. The beneficiary predeceases the testator (lapse)

 Section 12(b) of the Muslim Wills (Selangor) Enactment 1999

3. The subject matter is destroyed before the testator’s death

(ademption)
 Section 12(c) of the Muslim Wills (Selangor) Enactment 1999

4. The testator revokes the wassiyyah (revocation)

 Section 12(d) of the Muslim Wills (Selangor) Enactment 1999

5. The beneficiary has intentionally caused the death of the testator

(murder)
 Section 14 of the Muslim Wills (Selangor) Enactment 1999

e. Distribution
 Faraid
 Mutual agreement – takharuj

7. Hibbah
a. Concept
 No limitation as to the quantum
 Can give to anyone including legal heirs

b. Definition
 A gift or giving of something to someone without any consideration or price in
return
c. 4 conditions of hibbah
 The donor – person who makes hibbah
1. Attained the age of majority
2. Sound mind
3. Intention and free will

 The donee – person who receives

1. Legal capacity to own property
2. If minor, guardian on behalf

 The subject matter

1. Identified with sufficient clarity

 The ijab and qabul

1. Orally or gestures
Classification of legal heirs

1. Inner family (potential heirs to determine the legal heirs)

a. Asabah (male heirs of the deceased)
i. Sababiyyah
ii. Nasabiyyah
1. Bi al-nafs
RULE OF CLASS RULE OF DEGREE RULE OF STRENGTH
OF BLOOD TIE
Bunuwwa – son hls S excludes SS etc
Ubuwwa – father hhs F excludes GF
Ukhuwwa – GB excludes GB’s son Gb excludes CB
germane brother,
consanguine brother

Gb’s son, Cb’s son

(nephew)
Umuma – Paternal uncle
paternal uncle hls excludes paternal
uncle’s son (cousin)
Great uncle hhs
Paternal uncle
excludes paternal
grand uncle

a. Rules of priority
i. Any member of a higher class excludes any member of a
lower class
ii. Exception: The brothers of the deceased are not
excluded by grandfather

1. Bi al-ghayr (residue by another) – counterpart 2:1

a. Son(s) will convert daughter(s)
b. Son’s son(s) will convert son’s daughter(s)
c. Germane brother(s) will convert germane sister(s)
d. Consanguine brother(s) will convert consanguine sister(s)

2. Ma’a al-ghayr (accompanying residue)

a. Daughter or son’s daughter will convert germane sister(s)
b. Daughter or son’s daughter will convert consanguine sister(s)
b. Ashab al furud (heirs who are entitled to a fixed portion prescribed in the Quran)
i. Primary heirs
1. Father (4:11)
a. 1/6 – In the presence of any offspring (hls)
b. 1/6 + Residue – In the presence of any female offspring (d hls)
c. Residue – In the absence of any offspring at all

2. Mother (4:11)
a. 1/6 – In the presence of any offspring or in the presence of 2 or
more brothers/sisters (germane, consanguine, uterine)
b. 1/3 – in the absence of any offspring or in the presence of only 1
brother or sister

3. Husband (4:12)
a. 1/2 – In the absence of any offspring with him or ex-husband
b. 1/4 – In the presence of offspring

4. Wife (if there are wives, share equally) (4:12)

a. 1/4 – In the absence of offspring with her or ex-wife
b. 1/8 – In the presence of offspring

5. Daughter (4:11)
a. 1/2 – Alone, in the absence of son
b. 2/3 – 2 or more, in the absence of son
c. Asabah bi al-ghayr – In the presence of male counterpart 2:1

6. The case of Umariyyatan – decided by Khalifah Umar

a. Applicable when the surviving legal heirs consists of only
i. Father
ii. Mother
iii. Husband or wife

b. Mother will take 1/3 from residue and not 1/3 from the whole
estate

7. Awl (the case of hen and her chicks)

a. Refers to a situation of inheritance where the estate of the
deceased is oversubscribed in the presence of heirs who are all
entitled to inherit and there is no person that can exclude them
ii. Secondary heirs
1. Germane sister (4:176)
a. 1/2 – Alone
b. 2/3 – 2 or more
c. Asabah bi al-ghayr – In the presence of GB 2:1
d. Asabah ma’a al-ghayr – In the presence of 1 or more daughter,
or in the presence of 1 or more son’s daughter or in the
presence of only 1 daughter and 1 or more son’s daughter
e. Excluded by – father or male offspring hls

2. Consanguine sister
a. 1/2 – Alone
b. 2/3 – 2 or more
c. 1/6 – Alone or more in the presence of only 1 GS who is taking
her quranic portion i.e 1/2
d. Asabah bi al-ghayr – In the presence of CB 2:1 (the case of lucky
and unlucky kinsman)
e. Asabah ma’a al-ghayr – In the presence of daughter or son’s
daughter hls and in the absence of any male descendant or
germane sister or germane brother or consanguine brother or
father
f. Excluded by – father or male offspring hls or 2 or more GS or
germane sister who has become asabah ma’a al-ghayr or
germane brother

3. Uterine sister and brother (4:12)

a. 1/6 – Alone, either male or female
b. 1/3 – More than 1
c. Excluded by – any ascendants i.e father hhs or any descendant
(offspring) hls
d. The uterine will never be excluded by collaterals

4. The case of Himariyyah

a. When there is no residue left for the germane
b. Umar decided that the portion for UB shared with GB and UB
(divide)
c. Accepted by Shafi and Maliki
d. Rejected by Hanafi and Hanbali
iii. Substitute heirs
1. Grandfather
a. In the absence of collaterals – similar with father
i. 1/6 – male or female offspring
ii. 1/6 + residue – female offspring
iii. Residue – no offspring
iv. Excluded by father – minority view share portion with
father

b. In the presence of collaterals

i. FF inheriting together with male collaterals (Al
Muqasamah)
1. GF will share the residue with the male
collaterals
2. If the residue is less than 1/6, FF will take 1/6

ii. FF inheriting together with female collaterals

1. Female collaterals will take
a. ½ - alone
b. 2/3 – 2 or more

2. FF will take residue

a. If less than 1/6, FF will take 1/6

iii. FF inheriting together with female and male collaterals

1. Share 2:1

iv. FF inheriting together with female offspring and female

collaterals
1. FF will take 1/6
2. Female offspring will take quranic portion
3. Female collaterals will take residue

2. Grandmother
a. Who is the grandmother?
i. Mother’s side
1. MM
2. MMM

ii. Father’s side

1. FM
2. FFM
3. FMM
 b. 1/6 – one or more
c. Excluded by
i. Mother
ii. Father (father’s side)
iii. GM who is nearer to the deceased
*Father’s side cannot exclude mother’s side

3. Granddaughter – female offspring/SD hls

a. ½ - alone, no daughter
b. 2/3 – 2 or more, no daughter
c. 1/6 – completion of 2/3 (in the presence of 1 daughter)
d. Asabah bi al ghayr – male counterparts 2:1
e. Excluded
i. Son or nearer male offspring to the deceased
ii. 2 or more daughters