LEVEL I Inheritance Logic:1. SHARE OF HUSBANDIF NO ENTITLED
DESCENDANTS EXIST (ie; Children/Grandchildren)THENHUSBAND = 1/2IF
ENTITLED DESCENDANTS EXIST (ie; Children/Grandchildren)THENHUSBAND
= 1/4Note: ENTITLED DESCENDANTS = Sons, Daughters, Sons Son, &
Sons Daughter. Daughterschildren are NOT treated as entitled
descendants.2. SHARE OF WIFEIF NO ENTITLED DESCENDANTS EXIST (ie;
Children/Grandchildren)THENWIFE = 1/4IF ENTITLED DESCENDANTS EXIST
(ie; Children/Grandchildren)THENWIFE = 1/8Note: ENTITLED
DESCENDANTS = Sons, Daughters, Sons Son, & Sons Daughter.
Daughterschildren are NOT treated as entitled descendants.3. SHARE
OF DAUGHTER(s)IF ONLY ONE DAUGHTER (and NO Sons)THENDAUGHTER =
1/2IF TWO OR MORE DAUGHTERS ONLY (and NO Sons)THENDAUGHTERS =
2/3(to be shared equally between all of them)IF both SONs &
DAUGHTERS EXIST,THENSON:DAUGHTER = 2:14. SHARE OF FATHERIF ENTITLED
DESCENDANTS EXIST(Sons, Daughters, Sons Sons, Sons
Daughters)THENFATHER = 1/6IF NO MALE DESCENDANTS EXIST (Sons, Sons
Sons)THENFATHER = 1/6 plus Residue(residue = remainder after all
legal shares are distributed)IF NO ENTITLED DESCENDANTS
EXISTTHENFATHER = Residue5. SHARE OF MOTHERIF ENTITLED DESCENDANTS
or BROTHERS/SISTERS EXISTTHENMOTHER = 1/6IF NO ENTITLED DESCENDANTS
EXISTTHENIF NO BROTHERS/SISTERS, NO FATHER, NO SPOUSE
EXISTTHENMOTHER = 1/3IF BROTHERS/SISTERS, FATHER, or SPOUSE
EXISTTHENMOTHER = 1/3 of Residue6. UTERINE BROTHER/SISTER ( from
same Mother, different father)IF ONE UTERINE BROTHER/SISTER
EXISTTHENIF NO ENTITLED DESCENDANTS and NO MALE
ASCENDANTS(Father/Fathers Father etc)THENUTERINE BROTHER = 1/6 or
UTERINE SISTER = 1/6IF TWO OR MORE UTERINE BROTHERS/SISTERS
EXISTTHENIF NO ENTITLED DESCENDANTS .AND.NO MALE
ASCENDANTS(Father/Fathers Father etc.)THENALL UTERINE BROTHERS
& SISTERS = 1/3Note: If there are UTERINE Brothers/Sisters IN
ADDITION to FULL Brothers/Sisters (same father/mother), then they
share in the residue.7. SHARE OF SONS DAUGHTERIF ONE SONS DAUGHTER
EXISTTHENIF NO DAUGHTERS EXISTTHENIF NO SONS SON EXISTTHENSONS
DAUGHTER = 1/2IF SONS SON EXISTTHENSONS DAUGHTER = HALF SHARE OF
SONS SON(ie Sons SON share: Sons DAUGHTER share = 2:1)IF TWO OR
MORE SONS DAUGHTERS EXISTTHENIF NO DAUGHTERS EXISTTHENIF NO SONS
SONs EXISTTHENSONS DAUGHTERS = 2/3 (equally between them)IF SONs
SON EXISTSTHENSONS DAUGHTER = HALF SHARE OF SONS SON(ie Sons SON
share: Sons DAUGHTER share = 2:1)8. SHARE OF FULL
BROTHER/SISTER(Full Brother/Sisters are brothers/sisters from the
same FATHER & MOTHER)Brothers & Sisters inherit ONLY when
there are NO Descendants (Son/Sons, Sons sonetc.)andNO Ascendants
(Father/Grandfather etc.)The arabic word AL-KHALALA is used in the
Quran, Chapter 4 Al-Nisa, Verses 12 & 176, which is translated
by almost all the translators of the Quran to mean Ascendants &
Descendants thus giving rise to the interpretation that they
include Parents and Children. However, many scholars have preferred
to classify the word as meaning Father or Son thus excluding the
female components of both Ascendants and Descendants (mother &
daughters).IF NO FULL BROTHER and NO FEMALE ENTITLED DESCENDANT
EXIST(daughter, Sons daughter etc.)THENIF deceased was
MALE,THENFULL SISTER = 1/2(if only ONE)IF NO FULL SISTER and NO
FEMALE ENTITLED DESCENDANT EXISTTHENIF deceased was FEMALE,THENFULL
BROTHER = 1(if only ONE)IF TWO OR MORE BROTHERS &
SISTERSTHENFULL SISTERs = 2/3(shared equally between them)FULL
BROTHERs & SISTERs(combination) = 2:1IF NO FULL BROTHER EXIST
but FEMALE ENTITLED DESCENDANT EXIST(daughter, Sons daughter
etc.)THENFULL SISTER = 1/6(if only one)IF NO FULL SISTER EXIST but
FEMALE ENTITLED DESCENDANT EXISTTHENFULL BROTHER = 1/6(if only
one)IF FEMALE ENTITLED DESCENDANT EXISTTHENFULL SISTERS &
BROTHERS = 1/3(share equally)9. CONSANGUINE SISTER (Sister from
same Father but different Mother)Consanguine Sisters inherit ONLY
when there are NO SONs or Sons SON(s) AND NO FATHER AND NO FULL
BROTHER.IF ONLY ONE FULL SISTER AND NO CONSANGUINE
BROTHERTHENCONSANGUINE SISTER(if only one)= 1/2CONSANGUINE
SISTER(s) (if two or more)= 2/3IF ONE FULL SISTER AND CONSANGUINE
BROTHER(s)THEN(CONSANGUINE) BROTHER:SISTER = 2:110. TRUE
GRANDMOTHERTrue Grandmother is defined as the one whose line of
connection with the deceased is NOT interrupted by a MALE between
two FEMALES. They are entitled ONLY if the FATHER or MOTHER do not
exist.Eg; Mothers MOTHER, Fathers MOTHERFathers Fathers MOTHER,
Mothers Mothers MOTHERTRUE GRANDMOTHER = 1/611. TRUE
GRANDFATHERTrue Grandfather is the one whose line of connection
with the deceased is NOT interrupted by a FEMALE between two MALES.
They are entitled ONLY if the Father or Mother do not exist.Eg;
Fathers FATHERFathers Fathers FATHERMothers FATHERMothers Fathers
FATHERTRUE GRANDFATHER = 1/6IF MALE DESCENDANTS EXIST (Son,
etc)TRUE GRANDFATHER = 1/6 + ResidueIF FEMALE descendants existTRUE
GRANDFATHER = ResidueIF NO Male/Female descendants exist12. UNCLES
& AUNTS (Fathers/Mothers Brothers & Sisters)Uncles and
Aunts are ONLY entitled in the absence of GRANDPARENTS. This means
that they will receive shares ONLY if there are NO Parents AND
Grandparents because Grandparents do not inherit when the Parents
are living. They will also NOT inherit if the children (or
childrens children) of the deceased are living. Proportions here
are also in the ratio of 2:1 for Male:Female.13. NEPHEWS &
NIECES (Children of Brothers/Sisters)Nephews and Nieces are ONLY
entitled in the absence of Brothers and Sisters. This means that
they take the shares of the Brothers/Sisters of the deceased in
their absence. Hence a Nepew/Niece will receive what his/her parent
(Brother/Siuster of the deceased) would have received if he/she was
alive. They will also NOT inherit if the children (or childrens
children) of the deceased are living. Proportions here are also 2:1
for Male:Female
1.WILL,WRITING BEFORE DEATHQuestion: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 expenses2. Payment of
his/her debts3. Execution his/her will4. Distribution of the
remaining estate amongst the heirs according to ShariaThe Islamic
will is calledal-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 atestator (al-musi). The one on
whose behalf a will is made is generally referred to as alegatee
(al-musa lahu).Technically speaking the term"testatee"is perhaps a
more accurate translation ofal-musa lahu.The importance of the
Islamic will
The importance of the Islamic will (wasiyya) is clear from the
following twohadith:"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 iswasiyyah, 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 ones share in the Quran.There
should be two witnesses to the declaration of the wasiyya. A
writtenwasiyyawhere 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 Hanbalifiqh.
Thewasiyyais 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 Hanbalifiqhalso 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).
Similarhadithnarrated 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
Hanafifiqhbecause non-rejection is regarded as acceptance.
According to the other three main Sunnimadhahib, 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 Shafiifiqhthe transfer of
ownership is at the time of death of the testator, according to the
Maliki and Hanbalifiqhthe transfer of ownership is at the time of
accepting the bequest.
All the Sunnimadhahibagree 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 Shafiifiqh. But according to
the Hanbalifiqh, 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 Malikifiqhstate that the executor
should be trustworthy and truthful; the Shafiifiqhstate that the
executor must be just. The Hanafifiqhconsiders 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.2. INHERITANCE OF MALES & FEMALESQuestion:Under Islamic
law, how is inheritance distributed and why is a womans share of
the inherited wealth only half that of a man?Answer:1. Inheritance
in the Qur'anThe Glorious Quran contains specific and detailed
guidance regarding the division of the inherited wealth, among the
rightful beneficiaries. The Quranic 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 106-1082. Specific share of
inheritance for the relativesThere are three verses in the Quran
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 childrens
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 partIn 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 partIt 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 familyIn 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?3. BEQUESTS AND INHERITANCEQuestion
: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
Shariah? 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 Quran: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 Quran, 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 Shariah among his living heirs.So after the
revelation of Surah Nisa 4:11-12, in an Islamic country where
Islamic Shariah 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 Quranic 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.4. INHERITANCE CONCEPT IN
ISLAMQuestion :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 remainingTarakah(estate)
all debts including unpaidMah-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,
anyWasiyah(testament or bequest) in favor of non-heirs shall be
fulfilled from one-third (1/3) of theTarakah(remaining estate).
This due and liability shall be third charge drawn from the
remaining estate.{Islaamic Shariah only allows a Wasiyah in one
third of theTarakah(remaining estate). The Shariah disallows any
portion ofWasiyah,which is in excess of 1/3 (one third) of
theTarakah.ThisWasiyahshall be a first charge to be paid before the
rightful inheritors receive their share from
theTarakah.}4.Distribution: Lastly, theTarakah(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 sons son inherits twice
as much as a sons 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
ofqiyas(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-sixthIn 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 calledal-raddis
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 ofal-awlwhich 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 asdhawu al-arham(or distant kindred). The
majority view is that they are entitled to inherit when there are
no residuaries and no sharers entitled toal-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 persons
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.
5.INHERITANCE: A COMPLICATED QUESTION OF INHERITANCEQuestion
: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 )
6.INHERITANCE: WHEN THERE IS NO SONQuestion :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 )
7.WILL: A WILL THAT SHOULD NOT BE IMPLEMENTEDQuestion :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 receiveone eighthof
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 )8.WOMEN MAKING
WILLQuestion :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.9. WAQF INHERITANCEQuestion: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
inal-Mughni(5/365): A waqf that is given during ones 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 deceaseds illness, and
it is forbidden to give away more than one-third. End quote.Primary
heirsThere are 12 primary heirs in total - four males and eight
females.The male heirs are:fathergrandfather (father's father and
mother's father)uterine brother (half brother on mother's side),
andhusband.The female heirs are:wifedaughtergranddaughterfull
sisterconsanguine sister (half sister on father's side)uterine
sister (half sister on mother's side)mother, andgrandmother
(father's mother and mother's mother).Sharia rules define exactly
how much of the remaining estate each primary heir receives,
depending primarily on the total number of heirs. They will not,
however, receive the entire estate between them, as a portion will
be reserved to the residuary beneficiaries.3.3.2 Residuary heirsAt
first glance, the list of primary heirs may seem incomplete,
particularly as it does not include sons or full brothers. That is
because sons and full brothers are residuary beneficiaries, who
receive their entitlement after the primary heirs. There are
different types of residuary beneficiaries, but the most common are
those related by birth to the deceased, being male relatives whose
link to the deceased is not solely via a female. As well as fathers
and sons, this will include full brothers of the deceased.If there
are no residuary heirs, then the entire estate is divided between
the primary heirs pro rata to their original entitlements. If there
are no primary heirs and no residuary heirs, the estate goes to
more distant relations: blood relatives of the deceased who are
neither primary heirs nor residuary heirs.