SUCCESSION
Introduction:
A hadith tells us that
“he who knows the law of inheritance is possessed of half the knowledge of the world”. Islamic law recognises a system of what is called forced succession in that the propositus does not have the capacity of his property on his death as he wished.
I.) Testate Succession:
Every sane and major Muslim may dispose of his property by will. However these powers are restricted. All schools and sects agree that a Muslim cannot by will dispose of more than one-third of his estate. However, an excessive bequest is not rendered void ab initio, but is reduced to one-third of the estate. The remaining two-thirds must go to the heirs in form of “forced succession”.
The Sunni Schools hold that a bequest to an heir is not valid, unless the other heirs consent to it after the testator’s death. But, the Ithna Ashari and Zaidis permit a bequest to an heir, without the consent of other heirs, as long as it does not exceed one-third of the testator’s estate. Only Zahris believe that a bequest to an heir is completely void.
II.) Intestate Succession:
The estate of the deceased is applied successively to payments of:
(1) deceased’s debts;
(2) funeral expenses;
(3) valid and effective legacies within one-third of the remainder; and
(4) the shares of the heirs from what is left.
Under the Sharia, marriage is a ground for inheritance between spouses. Consanguinity is the blood relationship between the deceased and the heirs, including descendants, ascendants, siblings, uncles etc.
The doctrine of return (rudd) applies in case of a residue when, in case of no residuary, it reverts to the sharers, apart from the spouses, in proportion to their shares. The doctrine of awl applies if the shares given exceed unity, by increasing the denominator.
1.) Sunni Law of Inheritance:
Sunni Islam recognises 12 Quranic heirs, divided into 3 categories:
a.) The Quranic heirs, called sharers.
b.) The residuate heirs: the male agnatic kinsmen.
c.) Distant kindred or uterine heirs (They rarely inherit anything).
Sharers:
These are those heirs who are entitled to a fixed share (fard) of the inheritance, and whose specific shares should be given in the first instance.
• The husband’s minimum Quranic share is one-quarter (¼) if the propositus is survived by children. However, when there are no children, his share is increased to one-half (½) of the estate.
• The wife’s minimum Quranic share is one-eighth (1/8) if the propositus is survived by children. However, when there are no children, her share is increased is to one-fourth (¼). Two or more wives collectively inherit one-fourth or one-eighth, which shall be equally divided among them. The shares of the spouses are defined in Surah Al-Nisa, Verse 12.
• The father shall inherit, if there is a son or son’s son (h.l.s), as a sharer, one-sixth (1/6). But if the propositus is survived only by a daughter or son’s daughter (h.l.s), the father will inherit first as a Quranic sharer, taking one-sixth (1/6), and secondly as a residuary heir, any remainder.
• The mother’s minimum Quranic share is one-sixth (1/6), which she inherits if there is a child of the propositus or if there are two or more siblings of the propositus of whatever blood tie. However, she will get one-third (1/3) if there is no surviving child or son’s child, or only one sibling.
• The daughter shall inherit one-half (½) if there is no son. If there are more daughters and no son, they will together inherit two-third (2/3). If there is a son, then, after deductions of other sharers, the male shall take double than the female i.e. the son two-thirds (2/3) and daughter one-third (1/3). Support for this proposition is found in Surah Al-Nisa, Verse 11.
There are also other sharers who can be excluded:
1. True Grandfather – Excluded by the father.
2. True Grandmother – Excluded by the mother.
3. Son’s Daughter – Excluded by a nearer male descendant.
4. Full Sister – Excluded by a son, a son’s son (h.l.s) or a father.
5. Consanguine Sister – Excluded by a son, a son’s son, a father, full brother or a full sister.
6. Uterine Brother/Sister – Excluded by a son, a son’s on or a father.
Residuaries:
They have no fixed share but succeed to the residue after the claims of the sharers are satisfied. The first group of residuaries are those males between whom and the deceased no female intervenes. They occur in the following order of priority:
• The male descendants i.e. the son and the son’s son (h.l.s), together with female descendants who co-exist with a male descendant.
• The male ascendants i.e. the father and the true grandfather (h.h.s).
• The descendants of the father i.e. full and consanguine brothers and sisters and their sons (h.l.s).
• The descendants of the true grandfather i.e. full or consanguine paternal uncles and granduncles and their sons and grandsons.
The above order of priority is followed in that each category shall exclude any other below. Within the same category, the nearest i.e. with fewer links to the deceased, excludes the more distant. If they are equal in the category and nearness, then the full blood excludes the consanguine blood. If they are equal in all these aspects, they shall receive equal shares.
The second group comprises of all female sharers who need a residuary from the above group to share with. There are four such female sharers:
(1) the daughter with the son;
(2) the son’s daughter (h.l.s) with an equal or lower son’s son;
(3) the full sister with the full brother; and
(4) the consanguine sister with the consanguine brother. They shall share the residue after the sharers, with the male receiving twice the portion of a female.
The third group comprises of only two females, full and consanguine sisters, who are both sharers, but in the absence of a male agnate, they become residuaries with the daughter(s) or son’s daughter(s) (h.l.s).
2.) Shia Law of Inheritance:
In Shia law, the heirs are classified into three groups:
a.) Solely sharers – spouses and the mother.
b.) Sharers but can also be residuaries e.g. daughters and sisters.
c.) Solely residuaries e.g. the son.
The spouse always takes the Quranic share, but otherwise, all relatives fall into one of the three classes, with sub-sections in each class:
Class1a Parents
Class1b Lineal descendants
Class2a Grandparents
Class2b Brothers, sisters and their issue
Class3a Paternal uncles and aunts and their issues
Class3c Maternal uncles and aunts and their issues
Within the same class the nearer in degree will exclude the more remote, so that a daughter will exclude the son’s son. If any heir in Class 1 survives, they will exclude the members of the lower classes, whereas, Class 2 members have the capacity to exclude the members of Class 3.
Spouses:
Since the spouses are always sharers, therefore they shall have priority over other sharers. Both the Sunnis and Shias give the husband half (½) the estate of the deceased wife if she has left no child, and a quarter (¼) if she has; the widow shall receive one-quarter (¼) or one-eighth (1/8) respectively. Both the schools rely on Surah Al-Nisa, verse 12.
However, the two sects differ on the meaning of the child. The Sunnis maintain that a child is any descendant who is related to the deceased without any female links e.g. a son’s son or daughter. So, a daughter’s son is no descendant. But, the Shias consider that every descendant, whether related through male or female links, is a child which shall reduce the share of the surviving spouse.
The husband is also entitled to receive the residue by way of “return” (rudd). However, the wife is not entitled to any such return.
Another difference is that the husband shall inherit his share of the estate without distinction between real and movable property. But the wife, a childless widow can never inherit from the real estate of her husband.
Heirs of the First Class:
• The father on his own, without a spouse or a member of the first class shall inherit the whole estate.
• The mother on her own, without a spouse or a member of the first class shall receive the whole estate: one-third (1/3) as a sharer and the residue by way of return. If she inherits with a husband, he shall take his share of one-half (½).
• With both parents surviving, the mother shall get one-third and the father the residue. Both with one spouse, the mother shall receive one-third of the estate, his spouse his or her share and the father what is left thereafter.
• An only child of the deceased shall take the whole estate on its own without any other heir surviving: a son through kinship and a daughter as a sharer (one-half) and by way of return (one-half).
• On the same grounds, an only child with a spouse of the deceased shall take the whole residue after deducting the spouse’s share.
• More than one child, males and females, shall share the whole estate if there is no sharer, and the residue if there is a sharer, the male taking twice the portion of the female. If they are all males or females they shall share equally such a residue.
• Every grandchild shall be excluded by a direct child of the deceased, under the general Shia rule that within the same class of blood relations, the nearest excludes the more remote. A daughter’s daughter shall be excluded by a daughter or a son, and a son’s son shall not inherit if there is a son or daughter, and so forth.
III.) Gifts:
Every sane and major Muslim may dispose of his entire property by gift. A transfer of property constitutes a gift (hiba), if:
(1) transfer is made immediately;
(2) the transfer is accepted; and
(3) no consideration is given.
For a gift to be valid, the donor should divest himself completely of all ownership and control. However, certain conditions exist in respect of deathbed gifts: a gift made by a Muslim during a death-illness cannot take effect beyond a third of the estate nor can it be made in favour of an heir, unless the other heirs give their consent to the gift after the donor’s death.
IV.) Wakfs:
The gift by Muslim for a purpose that is recognised by Islamic law as religious, pious or charitable constitutes a wakf. The dedication of the property has to be permanent as regards the purpose of the wakf, i.e. the wakf must be established in perpetuity. The property of the wakf cannot be alienated by the former owner nor by the administrator of wakf.
A wakf created by will or made in death – illness cannot exceed more than one-third of the estate of the donor, unless the heirs give their consent on the death of the testator.