All
that is on earth and in the heavens originally and truly belong to
God, and shall finally return to Him, so declares the Qur'an
emphatically. Whether the humans like it or not, our
moment in the universe is brief and transitory in the onward march of
history- to succeed people who go ahead of us and to be succeeded by
people who come after us. The
riches and affluence of this world is only for a period of time- and
the ultimate end of all affairs is with God. Among the attributive
Names of God, the Qur'an speaks about "Al Waris", the Supreme Heir: "It is We who give life and death; it is We who inherit (everything)"---(Surah Al-Hijr, 15:24). The
Qur’an
thus
provides
an ethical framework for the believers to look at questions of
property, wealth and possessions: upon the death of a person, all property returns to God and the portion to legal heirs are apportioned by Divine Decree, leading to the Divine redistribution of the wealth of the deceased.
Under the Qur'anic framework on succession, both men and women among family relations- children, parents, siblings and spouses- are entitled for a fixed and mandatory share of the wealth of their deceased relatives. “Men have a share in (the assets) that their parents or nearest kin leave behind, and women (also) have a share in the inheritance of their parents and the nearest kin. Be it small or large, the share has been fixed (by Allah)”. (Surah Al-Nisa, 4: 08). Other verses in the Qur'an (4:12-14;177) identify the specific rules for apportioning the estate by Divine Decree. The prescribed shares of the male and female heirs are to be distributed among them after the payment of debts- including funeral expenses- and the fulfillment of the Will the believer may have made prior to death.
On
the basis of Qur'anic rules of inheritance, the
Holy Prophet (sa) issued
practical guidance on new
issues that emerged in the context of the companions' family lives, especially
on matters that the Qur’an did not specifically comment upon. For
instance, to strike a balance between a
person's right to bequeath his property by will to other than one's legal heirs prior to death and to protect the interests of the legal heirs, it was clarified that not more than one-third of the estate can be given away in such a manner. Through
the centuries, by
applying
reasoning and analogy, Muslims
have evolved a vast
corpus
of jurisprudence (Fiqh) on the distribution of shares in
varying contexts of the life of the Ummah. In
his Friday Sermon of 10 August 2018 (27 Dhul-Qaddah 1439 AH), Hadhrat
Muhyi-ud-Din Al Khalifatullah Munir Ahmad Azim Saheb (atba) of
Mauritius provides
a magisterial survey of the most important features of Islamic
inheritance law and comprehensively
explains the profound obligations on devout Muslims in this regard-
of making distributive arrangements for smooth transitions in the
wealth and assets they (are to) leave behind, and
also to respect the rights of women and other vulnerable legal
heirs
in matters of succession.
Under the Qur'anic framework on succession, both men and women among family relations- children, parents, siblings and spouses- are entitled for a fixed and mandatory share of the wealth of their deceased relatives. “Men have a share in (the assets) that their parents or nearest kin leave behind, and women (also) have a share in the inheritance of their parents and the nearest kin. Be it small or large, the share has been fixed (by Allah)”. (Surah Al-Nisa, 4: 08). Other verses in the Qur'an (4:12-14;177) identify the specific rules for apportioning the estate by Divine Decree. The prescribed shares of the male and female heirs are to be distributed among them after the payment of debts- including funeral expenses- and the fulfillment of the Will the believer may have made prior to death.
On
the basis of Qur'anic rules of inheritance, the
Holy Prophet (sa) issued
practical guidance on new
issues that emerged in the context of the companions' family lives, especially
on matters that the Qur’an did not specifically comment upon. For
instance, to strike a balance between a
person's right to bequeath his property by will to other than one's legal heirs prior to death and to protect the interests of the legal heirs, it was clarified that not more than one-third of the estate can be given away in such a manner. Through
the centuries, by
applying
reasoning and analogy, Muslims
have evolved a vast
corpus
of jurisprudence (Fiqh) on the distribution of shares in
varying contexts of the life of the Ummah. In
his Friday Sermon of 10 August 2018 (27 Dhul-Qaddah 1439 AH), Hadhrat
Muhyi-ud-Din Al Khalifatullah Munir Ahmad Azim Saheb (atba) of
Mauritius provides
a magisterial survey of the most important features of Islamic
inheritance law and comprehensively
explains the profound obligations on devout Muslims in this regard-
of making distributive arrangements for smooth transitions in the
wealth and assets they (are to) leave behind, and
also to respect the rights of women and other vulnerable legal
heirs
in matters of succession.
Read the First part of the Two-part Sermon Below:
According
to Quran and Hadith, according to Shariah, it is
incumbent on a Muslim to distribute his wealth among his heirs. It is
thus his duty to make all necessary procedures so that after his
demise, his wealth is distributed as per the commandments of Allah
and His Messenger (pbuh).
The
share (fraction/ percentage) that a wife or a husband or a mother or
a sister receive is obligatory (Farz) just
like Salaat/ Namaz, Sawm/
Roza, Zakaat are Farz. The
proportion that we have to distribute in inheritance comes
essentially from the Quran. The Holy Prophet Muhammad (pbuh) has
said: “Learn
the laws of inheritance and teach them to others as they are half of
knowledge…” (Mustadrak Al Saheehain).
Upon
the demise of a person, a part of his wealth shall be used to finance
his funeral – to bathe his dead body, his shroud (Kafn) and
burial. And there should be no futile expenses or waste in these
undertakings. Today unfortunately, Muslims hold great feasts
in connection with the funeral of someone, on the 3rd,
10th and 40th day after burial. This
practice is not Sunnah (i.e. it was not the
practice of the Holy Prophet Muhammad (pbuh)) and thus not right.
These kinds of expenses (i.e. holding such great feasts) weigh heavy
on the shoulders of the bereaved family, who is already saddened by
the lost of one of its members. What is mentioned in Hadith is the
help and consolation from the near relatives as well as the
neighbours who come forward to give some food to the bereaved family.
We should not burden those who are already grieved by a person’s
death. We should on the contrary help them. And if we are not going
to the bereaved family’s home to help them, then it is preferable
not to go there. If you need to go there, then it should be a visit
of sympathy and you should invoke Allah and pray (dua) for
that family and the dead person. You should moreover not stay there
for long, and not trouble the bereaved family and complicate the
situation in such a way that they see that they have to serve you
something – food and drink – because of your long stay at their
place.
After
the funeral expenses – the shroud (Kafn) and
other expenses in connection with the burial of the dead person –
if the dead had left some debts, then part of his wealth should be
used to reimburse all those debts first and foremost. If his debts
are way beyond what he possess of wealth (money, jewelleries,
properties etc.), then all his wealth should be used to pay back his
debts, and in this case the heirs shall get nothing of this wealth.
THE
IMPORTANCE OF WASSIYAT
If
some wealth has remained after paying back all the deceased person’s
debts, and if he had the intention to give other specific people (of
his choice) or his Jamaat/ Mosque/ Islam a share of his inheritance,
therefore he should have prepared beforehand a Will/
Testament (Wassiyat). And in the context that a
person wants to give something in the path of Allah, then this word,
the Wassiyat retains all its importance. And
thus a maximum of 1/3 (one-third) of his wealth (after clearing all
his debts) shall be applied for this Wassiyat. Therefore,
what is Wassiyat in this context?
Wasiyyat is
a written or verbal will that a person writes down or speaks of, to
bequeath a share of his wealth in the path of Allah (e.g. a Jamaat
who shall use this wealth only for the cause of Allah, such as, if
the person has a house or building, this shall come in the possession
of the Jamaat and this can be used as a place of worship (Ibaadat
Khana), or a Dawa centre
or even an Islamic school etc.).
That
declaration, i.e. the Wassiyat is only valid
when the person is in good health and has full conscience of what he
is doing. I need to precise here that this Wassiyat shall
not come completely in the possession of the Jamaat (and/or Mosque,
an Islamic institution etc.) if the one preparing his Will (or the
now deceased person) has an heir or heirs. Only 1/3 shall be applied
to the Wassiyat for the specified person or Islamic
institution/ community and the rest shall be shared among the heirs.
Now,
if the deceased person does not have children and he has debts and
has made a Will, then first of all, all his debts should be cleared/
reimbursed and then afterwards 1/3 (of his wealth) shall go Masjid/
Jamaat/ Islam (as per his Will). A person also can also prepare a
Will (Wassiyat) to bequeath his wealth to a
person of his choice. And this shall be valid only after clearing all
his debts (after his death) and only 1/3 of all his wealth shall be
applied for that specific person. If he
does not have any debt and child (and heir*), then all
his wealth shall
be distributed as per his Will and therefore his wealth as a whole
shall go to the specified persons and/ or Jamaat/ Islamic
institutions he has mentioned in his Will. But
this Wassiyat shall be valid only when he is in good
health and has all his mental capacities; he should be clearly
conscious of what he is doing. If he is near death and is suffering
from such illness which bars his mental abilities to take decisions;
he is not in possession of his full conscience, the Wassiyat shall
not be valid.
Therefore,
inheritance is a very delicate subject-matter and we should know how
to deal with it properly. It must NOT be that a person contracts
debts everywhere and he has heirs and he says: ‘I make a
will to give my wealth to Jamaat.’ But then, how about his
debts (who shall pay his debts)? And what shall become of his
children; children he has produced?
When facing such cases, the responsible of the Jamaat should study each case carefully before accepting such wealth. It should not be that a person has debts everywhere and he does not pay back the people with whom he took money, and on top of that he neglects his heirs and gives all his wealth to the Mosque or Jamaat. He thinks that if he does so, he shall be spared from the punishment of Allah on the Day he shall present before Him. But this is not done! Allah (swt) shall not accept such Wassiyat when he has made the hearts of people suffer concerning the money he owed them and he broke the hearts of his heirs (direct heirs – biological children). He should beware and be mindful of the laws of inheritance as commanded by Allah (swt) in the Holy Quran, wherein Allah has explained on this subject in great detail. The Holy Prophet (pbuh) has recommended for those people who have too many heirs (children) to not even contemplate giving others (e.g. Jamaat etc.) by way of Wassiyat. Hazrat Muhammad (pbuh) has stated for those people who have many heirs that “the 1/3 (i.e. reserved for Wassiyat)… is (in a manner of speaking) way too much.” (Bukhari).
I
have seen that in Mauritius that there lots of Waqf which
rich families bequeath (in the way of Allah) and which remains
unused, neglected and this very often create discord in the family
(of the deceased person). My advice to the Muslims is that instead of
giving lands as Waqf (in the way of Allah),
it would be best if during the lifetime of the person, he construct a
building from which rent can be derived which shall benefit the
Islamic institutions.
Therefore,
(1) after having paid for the Kafn (and all
funeral expenses) of the deceased person, and (2) clearing all his
debts, and (3) applying his Wassiyat (if
any), (4) that which remains is distributed among his heirs.
TYPES
OF HEIRS
There
are two types of heirs :
-
Heirs whose shared are fixed by the Quran; those are called the Faraa’iz.
-
The heirs who take the rest of the wealth after the Faraa’iz have taken their shares. Those kinds of heirs are called Asabah. The direct Asabah are the males in the family line of the deceased person ; no female share in it.
The
distribution of wealth among the heirs start with giving the fixed
parts to the Faraa’iz, and afterwards the rest shall go
to the Asabah. If there is no Faraa’iz, it
is the Asabah who takes all (the now available)
wealth. If there is no Asabah and only the Faraa’iz,
therefore the wealth shall go for the Faraa’iz as
per the shares allocated to them.
If
there is no Faraa’iz, and Asabah, then it
is the Zawil Arhaam who shall have a share of the
wealth. The Zawil Arhaam are the near relatives of
the deceased person who neither form part of the Faraa’iz,
nor Asabah. E.g. Maternal uncle (Mamu).
*If
there is no Faraa’iz, Asabah,
and Zawil Arhaam (i.e.
his heirs), if there is none
of the people mentioned, then if
the person makes a Will/ Testament to distribute ALL his wealth for
Jamaat or Masjid ,
it is then that his Wassiyat shall
be applied for ALL his wealth.
If
he had not prepared any Wassiyat on a part of his
wealth and if there is no heir as I have mentioned (i.e.
the Faraa’iz, Asabah & Zawil Arham),
then all his wealth shall go in the possession of
the Bait-ul-Maal [By Bait-ul-Maal,
it is understood for the Jamaat or if the person is found in an
Islamic country (based on Taqwa), it refers also to the
Islamic Government in place – and not a non-Islamic
Government for the Muslim’s Will should be regulated as
per the Quran and Sunnah] or an Islamic institution which
shall spend this wealth for the progress of Islam, the religion which
has been perfected by Allah (swt).
SHARING
OF THE INHERITANCE
Let
us now see the shares which have been fixed by the Quran - Faraa’iz:
-
Father :
-
The father of the deceased person receives 1/6 (one-sixth) when there is the presence of the son or the son’s son (i.e. the male grandchild of the deceased person), or the presence of the great-grandson of the deceased (the son of his son’s son).
-
The father shall receive 1/6 and shall moreover become Asabah in the presence of the daughter (of the deceased) or the daughter of his son or even the great-grand-daughter through the loins of his son).
-
The father becomes Asabah when there is no child (of the deceased) and no grandchild through the loins of his son.
-
Paternal Grandfather (The Father of his father) : The paternal Grandfather shall receive part of the inheritance if the father of the deceased had already died at the time of his own death. In that case, the Paternal Grandfather shall receive the same share - like in the three situations which I have elaborated in 1. (a), (b) & (c) - as that of the father. Therefore, if the father is alive, then the paternal Grandfather does not receive anything.
-
Uterine Half Brothers & sisters sharing one same mother (i.e. brothers and sisters having one same mother but different fathers).
-
When there is only one such brother or one such sister, they receive 1/6. When there are two of them or more, then they all share in 1/3, but it must be noted down that such half-brothers and sisters have equal shares in the 1/3 part of the inheritance.
-
Uterine half-brothers and sisters shall receive nothing in the presence of the child or grandchild of the deceased through the loins of his son.
-
Uterine half-brothers and sisters shall receive nothing in the presence of the father or paternal Grandfather of the deceased.
-
Husband :
-
The husband shall inherit ½ of the wealth of his wife when there is no child (son or daughter with the deceased wife) or the grandchild (her son’s son) or great-grandchild of the deceased (the son of her son’s son).
-
The husband shall inherit ¼ when there is a child (boy or girl) or the grandchild (her son’s son) or great-grandchild of the deceased (the son of her son’s son).
-
Wife/ Wives :
-
When there is a wife or several wives and there is no child or grandchild or great-grandchild (the children of the deceased’s son), they (i.e. the wives) receive ¼ of the wealth.
-
In the presence of his children or grandchildren or great-grandchildren, the wife or wives receive 1/8.
-
Full Daughter (from same father and mother) :
-
A unique daughter shall receive ½ (half) of the wealth.
-
When there are two or more daughters, they all receive 2/3 (they all share in 2/3).
-
If there is a son along with the daughter, therefore the son shall make the daughter become Asabah, and the daughter shall receive ½ the share of the son, i.e. the son gets twice the share of a daughter (2:1).
-
Daughter’s Son (Grandchild):
(a)
He receives ½ of the wealth when he is alone.
(b)
He gets 2/3 when there are two or more of them in the absence of a
full daughter (of the deceased).
(c)
They receive 1/6 as shares when there is only one full daughter. In
that case, the grandchild and full daughter shall complete 2/3 of the
wealth.
(d)
They do not inherit anything if there are two full daughters or more,
unless there are males in their generation or further down in the
family line, and thus the male shall make them (i.e. the females)
become Asabah. And, the females shall receive ½ of the
shares of the males (2:1).
(e)
If there is a son (the deceased’s son), therefore grandchildren
shall not receive anything.
8.
Full sister (from one same mother and father) :
(a)
When there is only one sister (in absence of all other direct heirs),
she shall receive ½ of the wealth.
(b)
When there are two or more, they shall receive 2/3 of the wealth.
(c)
When there is a brother or brothers along with the sisters, therefore
he/ they shall make them become Asabah and the
sisters shall receive ½ of the shares of the brothers (2:1).
(d)
When there is a daughter or the daughter’s son (grandchild of the
deceased), therefore they shall become Asabah along
with them.
(e)
Full sisters shall receive nothing in the presence of the deceased’s
son’s son or grandson’s son (grandsons or great-grandsons from
the loins of his son).
9.
Paternal Half-sisters (Agnate/ Consanguine Female Sibling) – same
father but different mothers:
(a)
She receives ½ of the wealth when she is alone (no other heir).
(b)
When there are two or more of them, they shall receive 2/3 in the
absence of a Full Sister.
(c)
She receives 1/6 when there is only one full sister to complete the
2/3.
(d)
They usually do not inherit anything when there are two full sisters
unless there is a Consanguine/ Agnate brother along with them, and
therefore they shall become Asabah and the sisters
shall receive ½ the shares of the brothers (2:1).
(e)
They become Asabah if there are daughters or
grandsons (daughter’s sons) like I mentioned in 8. (d).
(f)
Full siblings or Agnate/ Paternal Half-siblings shall receive nothing
in the presence of son/s, grandsons (sons’ sons), great-grandsons
(the sons of his sons’ sons), the father (of the deceased) and
paternal grandfather (father’s father).
(g)
Agnate siblings shall receive nothing when there is a full brother
and, full sister who then becomes Asabah.
10.
Mother:
(a)
The Mother shall receive 1/6 when there are children (boy or girl) or
grandchildren (of any gender/ bloodline – from either his sons or
daughters), or when there are 2 brothers or 2 sisters.
(b)
She shall receive 1/3 of the wealth in the absence of those people
whom I just mentioned.
(c)
She shall get 1/3 from the remaining wealth after distribution of the
wealth to the deceased’s husband (if the deceased is a woman) or
the deceased’s wife (if the deceased is a man), and this shall be
possible if there is father and mother along with the husband, or
father and mother along with the wife. And if the deceased has no
father (he already died), but there is his paternal grandfather who
is alive, therefore the mother of the deceased shall receive 1/3 of
the entire wealth (It is unfortunate
that nowadays in matters concerning the distribution of inheritance,
the shares of the mother and father are not taken into
consideration).
11.
Paternal Grandmother (The mother of his father) and
Maternal Grandmother (the mother of his mother):
(a)
Both types of grandmothers in one same generation shall receive 1/6
of the wealth.
(b)
They shall not receive anything if the mother is alive.
(c)
The paternal Grandmother shall get nothing if the father is alive or
if the Paternal grandfather (i.e. her own husband) is alive. But she
(paternal grandmother) as well as her mother (paternal grandmother’s
mother) or her grandmother (paternal grandmother’s grandmother) can
inherit even when the paternal grandfather is alive (and shall not
inherit if the deceased’s father is alive).
Note : Close/
direct family relations restrict distanced relatives from inheriting.
The close ones have precedence over those who come after in the
family bloodline.
IF
INHERITANCE HAD NOT BEEN DISTRIBUTED ACCORDING TO THE SHARIAH IN THE
PAST
If
our grandparents had not distributed their inheritance according to
the Shariah in the past, then it is our duty to correct that and
redistribute it according to Shariah. If those past errors are not
corrected, then we shall be accountable for this before Allah (swt)
and it may be that we are unfortunately consuming wealth which are
not ours. E.g. Had daughters (i.e. our mothers) received the same
share as their brothers in the past, therefore, this should be
corrected, for then those daughters would be living on such wealth
which are partly not theirs and thus, they are partly consuming
what is Haram (illicit).
If
the mother was alive at the time of her son’s death but she did not
receive the share of her inheritance, therefore, her share should be
restored to her before the Day of Judgement comes when she will claim
her right/ share.
To read the second and final installment of the Discourse, click here.
To read the second and final installment of the Discourse, click here.