Islamic Law of Inheritance Guidelines: Challenges and Principles

1. Islamic law of inheritance: challenges and guidelines for full implementationBeing a speech delivered at the Islamic Forum, the Syrian Club, Ribadu Road, Ikoyion 30th-Rajab-1438/27th-Apri-2017 Imam RidwanJamiu

2. IntroductionHistory of law of inheritance • Abdullah bin Abbas said: ‘The custom (in old days) was that the property of the deceased would be inherited by his male offspring; as for the parents (of the deceased), they would inherit by the will of the deceased. Then Allah cancelled from that custom whatever He wished and fixed for the male double the amount inherited by the female, and for each parent a sixth (of the whole legacy) and for the wife an eighth or a fourth and for the husband a half or a fourth. • Allah says, ‘Men receive a share of what their parents and relatives leave, and women receive a share of what their parents and relatives leave; be it little or much—a legal share.’ Surah Nisa (Q 4:7)

3. Meaning of Faraid • In Arabic, the Islamic law of succession or inheritance is known as ‘al- fara’id’ (‫الفرائض ), which literally means fixed portions. Technically, the term denotes the quantum of shares allotted to the legal heirs as determined by the Shariah. The knowledge of the fara’id is to do with the principle regarding determining the legal heirs, their quatum of shares, the impediments and the causes of inheritance and the classifications of the legal heirs. • The principles and the conditions regarding the devolution of a deceased Muslim’s estates are deduced from the Al- Quran and Sunnah.

4. Significance: • Special feature of Islam; absent in all religions and civilisations • Protection of the right of natural inheritors • Fair sharing of wealth to both genders • Protection of property right of women (it was only in the beginning of the 20th century that women in America, England, and other Western countries gained the right to own property. • Circulation of wealth • Undertaken by Allah Himself

5. Legal status of Islamic law of inheritance: Obligatory • Allah says – after He explains rulings on marriage, rights of orphan, and inheritance, “These are the limits (set by) Allah, 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. • 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.” Surah Nisaa (Q4/13-14)

6. Summary of Islamic law of inheritance • Inheritance laws are provided in three places in the Qur’an: Surah Nisaa (Q4: 11, 12 and 176). • “Allah instructs you regarding your children: The male receives the equivalent of the share of two females. If they are daughters, more than two, they get two-thirds of what he leaves. If there is only one, she gets one-half. As for the parents, each gets one-sixth of what he leaves, if he had children. If he had no children, and his parents inherit from him, his mother gets one-third. If he has sib-lings, his mother gets one-sixth. After fulfilling any bequest and paying off debts. Your parents and your children—you do not know which are closer to you in welfare. This is Allah's Law. Allah is Knowing and Judicious.

7. You get one-half of what your wives leave behind, if they had no children. If they had children, you get one-fourth of what they leave. After fulfilling any bequest and paying off debts. They get one-fourth of what you leave behind, if you have no children. If you have children, they get one-eighth of what you leave. After fulfilling any bequest and paying off debts. If a man or woman leaves neither parents nor children, but has a brother or sister, each of them gets one-sixth. If there are more siblings, they share one-third. After fulfilling any bequest and paying off debts, without any prejudice. This is a will from Allah. Allah is Knowing and Clement. They ask you for a ruling. Say, “Allah gives you a ruling concerning the person who has neither parents nor children.” If a man dies, and leaves no children, and he had a sister, she receives one-half of what he leaves. And he inherits from her if she leaves no children. But if there are two sisters, they receive two-thirds of what he leaves. If the siblings are men and women, the male receives the share of two females.” Allah makes things clear for you, lest you err. Allah is Aware of everything.”

8. Classes of heirs. • Heirs with fixed shares [As-haabulfurudh]: e.g. spouses, daughters (without brothers), parents (when the deceased leaves child/ren), • Agnatic heirs [Ál-ásabah]: closest male relatives; heirs who inherit all or remainder of estate after the fixed portions. For example, fathers, sons, etc. The Prophets said, “Give the Faraid to those who are entitled to receive it, and then whatever remain, should be given to the closest male relatives of the deceased”.” [Bukhari and Muslim] Note: No inheritance for siblings when the deceased person leaves a male parent or a male child: father/grandfather or son/grandson 3. Distant relatives [DhawulArhaam] 4. Islamic treasury

9. SCENE 1 • If a man dies and is survived by the following heirs: *Father, Mother, Wife, a male child, a female child and siblings. Each heir is entitled thus *Father=1/6 *Mother=1/6 *Wife=1/8 *The balance (13/24) is shared in ratio 2:1 (male to female) among the children.

10. SCENE 2 • When a man dies and leaves male child/children and no female child, the male child/children has/have all the properties and no other person including the deceased brothers/sisters provided the deceased has no parents or grandparents. • SCENE 3 Where the deceased has male and female children without parents or grandparents, only the children have all the properties. None of the deceased brothers and sisters has anything in the properties. The share of the males to females will be 2:1.

11. SCENE 4 • If the deceased has only female child/children, the brothers and sisters will have share on the properties. If there are two or more females, the female children share two-third of the inheritance. If only one female, her share is half of the inheritance. • SCENE 5 If the deceased leaves no children and the parents are the only heirs, the mother has a third. • SCENE 6 If the deceased has brothers and sisters, the mother has a sixth.

12. SCENE 7 • In case of deceased wife with no child, the share of husband is half of the properties. SCENE 8 If the deceased wife has child, the husband gets a fourth of the properties. SCENE 9 If the deceased husband has no child, the wife's share is a fourth. SCENE 10 If the deceased husband has child/children, the wife has an eighth.

13. SCENE 11 If the deceased man or woman had left no parents or grandparents or child, but left a brother or a sister, each one of them gets a sixth. If more than two siblings, they share in a third, provided that they are of the same mother. • SCENE 12 Full sister or of the same father (in the absence of a full) inherits a half of the deceased’s estate in the case of Kalala (when there are no ascendants or descendants for the deceased). Two or more share a two-third. A full brother or of the same father inherits all or remainder in the case of kalala. • SCENE 13 Full siblings [males and females] or of the same father (in the absence of full) share based on the principle of ‘to a male twice the share of a female’.

14. SCENE 14 • A female inherits more than males when the deceased is survived by a husband and daughter. The daughter gets a half while the husband gets one-fourth. • SCENE 15 When the woman inherits and the man is denied: if a woman/man dies and leaves a daughter, a full sister, and a half-brother from the side of the father, the daughter takes half of the inheritance, and the full sister takes the other half, and the half-brother inherits nothing, since he is prevented by the existence of a full sister.

15. Conditions prerequisite to distribution of inheritance • Settlement of debts and execution of will • Settlement of funeral expenses which fall within the limits of Sunnah. • Eligibility of the surviving heir: Subsistence of marriage between the heir and the deceased, life of the heir at the time of demise of the deceased [even the foetus], legal paternity, and being of the same faith

16. Creation of Will (Wasiyyah) in Islam:Meaning of willTypes of will • Compulsory wills: will on debts, liability, jointly owned properties and trusts • Recommended will: charitable trust [Endowment, waqf], bequest, guardianship, will creating a legal trust to protect beneficiaries’ interest, (trustee may be cooperate or individual) Executable if not more than one-third of the estate and not for heirs • Prohibited will: distribution of estate in will without conforming to Islamic laws of Mirath, willing out more than one-third of the estate, demise of will to a legal heir, demise of property for sinful purposes, denying a legal heir his/her rightful entitlement, provision to be buried at home or delay in burial or observance of an unislamic rites . The Prophet said, “Allah has apportioned to every heir their shares. There should be no wasiyyah (bequest) for an heir” Abu Daud and Tirmidhi

17. Allah's Messenger (ﷺ) 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." SahihBukhari • Matters arising • Inheritance of non-Muslim from a Muslim and vice versa • Formality of will: written or oral • Dying intestate • ‘Iddah and distribution of estate • Verses of Qur’an on wasiyya (Q2/180-182) • Islamic law of inheritance and custom • Appointment of executor/administrator • Rights of the administrator to effect change on erroneous will (Q2/180-182)

18. Are women unfairly treated in inheritance law of Islam? • Sharing of estate as gift before the approach of death • Matrimonial assets, gratuity, insurance compensation and pension In his analysis of the Islamic system of inheritance in 1884, the French polymath, Gustave Le Bon says in his book Arab civilisation: “The principles of inheritance which have been determined in the Quran have a great deal of justice and fairness. The person who reads the Quran can perceive these concepts of justice and fairness in terms of inheritance through the verses I quoted. I should also point out the great level of efficiency in terms of general laws and rules derived from those verses. I have compared British, French, and Islamic Laws of inheritance and found that Islam grants the wives (women) the right of inheritance, which our laws are lacking while westerners consider them to be ill-treated by the Muslim men.” Quoted in NSCIA letter to the National Assembly in her response to the Disparity Bill

19. Challenges • Lack of knowledge and awareness about Faraid • Paucity of Shariah experts • Lack of Shariah courts