MIRATH – LAW OF SUCCESSION AND INHERITANCE by maclaren1

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									        MIRATH – LAW OF SUCCESSION AND INHERITANCE

                         Imam Ahmad Abdur-Rahman

1.   INTRODUCTION

1.1-Inheritance laws and succession are known to be closely related and strongly indicative of the
society‟s normative system, social structure and principles of family organization.

1.1-Prior to Islamic era, there exist particularly consequential affinity between family worship
and the family property. This implies perpetrating family rituals through acquisition of property
be it from the point of view of protectionism angle or otherwise. In some religions of the ancient
times especially in the era of incessant warfare the criterion was mainly based on the ability to
contribute to the strength of the individual tribe through effective participation in the popular
sport of tribal warfare. The consequence of this practice was that women, invalids and minors
were excluded from inheriting and even be regarded as part of the chattel to be distributed, as
well as in the preference of the paternal to the maternal lines.

1.2 -However the evolution of man and industrial development led to the new trends in the
inheritance laws. Again, the inheritance law has always been a struggle between individualism
and collectivism or between individual‟s yearnings, and the social tendencies of humanity. While
individualism demands equality among all recipients. The social mission of the family often
demands a deviation from the equality principle and tends to eliminate completely some
individuals who may otherwise be qualified, hence the individual‟s right is forsaken for the group
since group‟s interest will be best served by keeping the property intact.

1.3-The underline principle of the law of succession in Islam is a composite regulations as to who
inherits and who is to be inherited, as well as what shares go to their heirs. Islam like all other
cultures and religion recognizes that death of a person brings about transfer of most of his rights
and obligations to his survivors. The transmissible rights include all dependent rights such as
debts, right to compensation etc and such rights as may relate to transmissible obligations – those,
which are capable of being satisfied out of the deceased‟s estate. Thus, what can be inherited is
the remainder of the estate after the payments of funeral expense discharge of debts and
obligations, and settlement of wills.

1.4-Comparatively, the Islamic law of inheritance is neither collective nor individualistic. It is not
traditional or modern. A close study will prove that the law favours each of these and even more
depending on the aspects one view it. Some contemporary scholars have pointed out with pride
that the law fosters the collective social spirit, because it favours the distribution of property
among many heirs. This holds in check the concentration of wealth in individual‟s hands yet
evidence abounds to indicate that property can not be distributed to the detriment of the heirs –
living them impoverished at the expense of larger society.

1.5-The Islamic laws of inheritance blend custom with revelation and joined the old to the new.
The manifestations of the difference between the Islamic law of inheritance and its predecessors
are manifold and far-reaching. Whereas all other ancient laws favoured exclusion of female heirs
and her matrilineal lines of descent or comradeship in arms, the Islamic system was founded on
two bases; natural, BI-lineal relationship through marriage. The right of will was recognized but
held in check by listing the right to only a third of the total estate that is left. Every Muslim is
urged by the Prophet to write his will as soon as possible and to have it certified by two qualified
witnesses.
2.0 Qur’anic Injunction on Inheritance

        2.1 Inheritance under Islamic law is ordained by Allah and therefore should be complied
            with by every Muslim on earth. The law is basically contained in two parts of the
            same Chapter – An –Nisah. Q4: 11-12, 176, although other Chapters talked about it
            as well. As could be discerned, it contains five legal regulations about inheritance.
            The law stipulates that:

        i.         Both men and women have a share in it.
        ii.        It must be divided among all heirs however little or insignificant the share may
                   be, so much so that if a piece of cloth is left, this must be cut in such piece that
                   each heir that is entitled shall have a piece. On the other hand, the law permits an
                   heir to buy the share of other only by natural consent.
        iii.       The law applies to all sorts of property.
        iv.        The right of inheritance becomes valid only when the deceased leaves some
                   property behind without a hindrance of a debt.
        v.         The law also implies that the near in blood is nearer in heritage i.e. that when the
                   nearest relatives are alive, the distant relative have no right inheritance.

        2.2 Basic Dimensions of the law:

        The essentials of succession are the existence of the following:

        - The deceased person
        - Heir
        - Estate
        According to some schools, property includes rights which may be inheritable while in
        others it is not so.

        2.3 Conditions for successions are also three and all must be satisfied at the time of
            death. These include :

        -      Confirmation of death.
        -      Survival of heirs
        -      Relationship which justify inheritance.

a. The death of the fellow must be actual and clear either by real death or judgement of the court
   in the care of a missing person.
b. The survival of heirs: It must be proved that the heir or heirs are surviving at the time of his /
   her death, before they are allowed to inherit.

2.4 - In the case of an embryo, it will not inherit unless it is born alive. His share shall be put
aside pending his delivery and the share shall be that of a male child. According to Maliki School,
the whole estate should be saved pending the delivery of the child before distribution.

3.0 The Right Heirs. Who are the heirs?

3.1 Here, it is pertinent to state that we are going to consider those heirs as may be mentioned in
the Qur‟an, Hadith and according to the grounds of their eligibility. These include those who have
specific shares (Fard) in the Qur‟an and the (Asabah) those who are entitled to the remainders of
the shares.

3.2 Furthermore, according to the Qur‟an, each male receives as much as the shares of two
    females.

3.3- Male heirs are:

       1.    Son
       2.    Son of son how low so ever
       3.    Father of the deceased
       4.    Grandfather how high so ever
       5.    Brother of the deceased
       6.    Son of the brother of the deceased
       7.    Uncle i.e. brother of the father of the deceased
       8.    Son of uncle
       9.    Husband
       10.   Master who freed his slave.

       Female heirs are:
       1. Daughter of the deceased
       2. Daughter of the son of the deceased
       3. Mother
       4. Grand father of the deceased for both sides
       5. Sister whether full, consanguine and uterine
       6. Wife of the deceased
       7. Freed slave (Mistress)

4.0 Bars to Inheritance: Complete and Partial.

4.1 From our discussion so far, we have seen that Islam adopted different grounds of inheritance.
Similarly, it should not be a surprise that Islam consider valid some reasons for excluding some
of the heirs from inheritance. Consequently, there are various categories of exclusion among
which are;

(i.)         Potential heirs who are completely debarred from inheritance because of their past deeds
             or some attribute they possess.
(ii.)        Potential heirs who become totally excluded only because of the intermediary of certain
             other recipients who are closer to the deceased.
(iii.)       Potential heirs who are only partially excluded. Their shares may be reduced on account
             of other beneficiaries.

4.2 The first category: Categorical Impediments:

These include persons who are barred because of certain acts and / or attributes, which represent
absolute bars to succession.
These bars include:

(a) Homicide: All Muslim Jurists agree that a murderer shall not inherit. The premise was based
    on the prophetic tradition, which goes thus: “ A murder does not inherit”. The reason is
    basically to prevent the accused person from benefiting from the crime he has committed.
    Moreover, inheritance among relative is based on mutual benevolence and solidarity, and it is
    designed to foster such familiar sentiments. Homicide is the antithesis of the whole idea of
    initial inheritance among relatives.

On the question of wills (Wasiyyah), the Maliki Jurists say that if the victim knew about the act
and did not withdraw the will then the accused could not be deprived from enjoying what has
been assigned to him. Other Imams did not support this view and thus preferred maintaining the
tradition.

In any case there are different cases of murders among which are

(a) Qatli al-amd - Intentional murder
(b) Qatl al Khata‟ –Unintentional murder

The intentional killers will not inherit while those of the unintentional may inherit the victim
excluding the (diyyah) which he pays.
However, in the case of:
(i)     A mad person or a minor
(ii)    Lawful killing as a result of exercising judicial punishment resulting in death and on the
        battlefield.
(iii)   Killing in self defense
(iv)    Justifiable killing according to Shariah etc. the killer cannot be prevented from inheriting
        the victim.




4.3 (b) Difference of Religion or more aptly put, change of religion.

Change of religion will immediately prevent “Mirath” inheritance subject to certain conditions.
According to the following Hadith “ a Muslim cannot inherit an unbeliever and an unbeliever will
not inherit a believer”.

The majority of Muslim jurists opine that a non-Muslim may not inherit a Muslim relative‟s
property. The basis of this doctrine is that inheritance is a form of successions and expression of
solidarity and a medium cooperation.

4.4 Slavery :
All Muslims jurists agree that slavery is a bar to inheritance. The reason here is that a slave is a
property of his master. Fortunately today the issue is non-existing.

4.5 The second Category : Complete exclusion

This group includes legitimate heirs who are excluded completely from inheritance because of the
intermediary of other relatives who are closer in linear proximity to the deceased. The rule is
apparently based on the principle of reciprocal priority of obligations and rights. This is so since
mutual responsibility among relatives is distributed according to lineal proximity. It is natural
therefore that reciprocal benefits like inheritance is similarly treated. Thus, a relative of the
second grade e.g. grand parent of the deceased does not inherit if there is among the survivors
another relative of the first grade such as a parent neither does a grand child inherit with the son.
4.6 The third category: Partial exclusion

This category consists of heirs whose shares may vary, but who are not entirely excluded. The
effect here is produces a wider distribution of the property. However, some partially excluded
persons may become entirely excluded. There are sister whose shares may reduced from one half
share to a third but still may be excluded entirely in the presence of a son of the father of the
deceased among the heirs.

Yet certain heirs cannot be excluded since their right of inheritance is primary and hence
inalienable. It may be adjusted or reduced but is never eliminated on account of any other heir.
Examples of these primary heirs include the spouse, both parents and the children of the
deceased.

5.0 Administration of the Estate of a deceased Muslim:

Before distributing the estate of the deceased among heirs the following steps are to be followed:
According to Qur‟anic injunction, we first settle the claims of debts and other rights of Allah and
His servants on the deceased as well as the will that he has left behind.
      “ The distribution in all cases is after the payment of legacies and debts”

5.2 (a) The settlement of debts. This includes debts that are not secured or specifically attached
    to the estate i.e. loans or any other unsettled debts.

5.3 (b) Funeral Expenses: These expenses; these expenses must be reasonably and strictly
    conform to the Islamic injunction of simplicity. Generally, the husband bears the funeral
    expenses of the burial of his wife. In his absence it is shifted to other surviving relatives.

5.4 Wassiyyah (Will)

After funeral expenses and debts, then the will shall be executed next. This will include all that
are made during the death – sickness of the deceased. However, both the will and the gifts shall
not exceed one third of the estate of the deceased unless this is consented to by the heirs.

6.1 Shares of each heir

6.2 Parents: (I) the right of parents is emphasized in various chapters of the Qur‟an. Each one
    shall receive one sixth from the estate of their deceased son, if he left behind a child. If only
    one of the parents is alive and the deceased left a child, the parent shall only be entitled to one
    sixth of the estate.
6.3 (ii) If the deceased has left no child and the parents are the only heirs, then, his mother shall
    get one – third while the father will get the remaining two-third.
6.4 (iii) If the deceased left no child but sisters and brothers, then the mother will have one-sixth,
    and the father- shall get the residue since the father excluded collateral.
6.5 Of the heirs there are some whose shares have been fixed in the Qur‟an. They are often
    referred to as (Ashab al Fard). These are twelve in number. Four males and eight females.
    Viz.: father, father‟s father, half brother by the mother, the husband, the wife, daughter, son‟s
    daughter, full sister, consanguine sister, uterine sister, mother and true grandmother.

The shares are either one-half, one-fourth, one-eight, two-third, one-third or one-sixth.
6.5 -The husband has ¼ when there is child or son‟s child how low so ever. He has ½ when there
is no child or son‟s child. The daughter‟s share is ½ when she is the only surviving heir. They
take 2/3 between them when they are more than one without a son or son‟s son.



In Conclusion: here we recognize that the law has covered virtually all that left to inherit the
deceased as:
(i)    husband / wife
(ii)   females and cognates are qualified to inherit
(iii)  parents and ascendant

Similarly, the female share was sometimes equal to or made half of the share of her male
counterpart.

   7.1 The underline principle states among others;

(a) that there shall be no distinction between movable or immovable property, joint or separated,
    reality or personality etc.
(b) There is no recognition of a birthright nor is the principle of „representation” recognized.
(c) Lives of succession cannot be invented.

7.2 the principle ensures a wide circulation of the property with concentration of wealth checked.
Thus, it assists in creating and fostering social sentiment of sharing cooperation and solidarity.

(b)Also in regulating the exercise of personal freedoms and rights.
(c) Imparting the idea that everything in fact belongs to Allah and the owner himself is merely a
transitory successor or executor and promoting kin solidarity without favoritism or prejudice.

								
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