ISLAMIC LAW OFSUCCESSION

A Practical Guide to theLaws ofFaraid

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Perpustakaan Negara Malaysia Cataloguing-in-Publication Data

Wan Noraini Mohd SalimIslamic law of succession : a practical guide to the lawsof faraid / Wan Noraini Mohd Salim.Includes indexBibliography : p. 191ISBN 978-967-0379-11-11. Inheritance and succession (Islamic law),2. Wills (Islamic law) L Title.297.14

Edited byLiyana Muhamad Shahaizi

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Printmate Sdn BhdNo. 14 & 16, Jalan Industri P.B.P. 7,

Taman Industri Pusar Bandar Puchong,47100 Puchong, Selangor Darnl Ehsan.

CONTENTSPreface CHAPTER 4Foreword iii RIGHTS ASSOCIATED TOAbbreYiations vii THE ESTATE 37Table of Cases ix Burial Preparation and ItsTable of Legislation xi Expenses 37

Debts 38CHAPTER I

Disposition of Wasiyyah 39INTRODUCTION I

Historical Background 2Legal Authority on the

Permissibility of wasiyyah 40Succession during pre- Islamic

Constituents and conditionsperiod 2

of wasiyyah 41Succession after the emergence

Limitations to wasiyyah 44ofIslam 4

Importance and significance ofRights of the Heirs According

the law offa raid 7to Faraid 51

Important terminologies 8CHAPTER 5CLASSIFICATION OF HEIRS

CHAPTER 2 AND THEIR ENTITLEMENT 53PILLARS, CONDITIONS A~D

Quranic heirs (Ashab aI-Furudh) 53GROUNDS OF INHERITANCE 11

Pillars of InheritancePrimary heirs 54

(Arkan al-mirath) 11 Secondary heirs 54

Conditions of Inheritance Substitute heirs 54

(Syumt al-mirath) 11 ReSiduary Heirs (Asabat) 55

What Constitutes an Estate? 15 Categories of Residuary Heirs

Grounds of Inheritance (Asabat) 55

(Asbab aI-mirath) 22 Asabat Nasabiyah Binnafsi

Blood ties 22 (residuary in their own right) 56

~farriage 24 Asabat Nasabiyah Bilghayr

Patronage ('itaq) 26(residuary through another) 59

Escheat (Raitulmal) 27Asabat Nasabiyah Ma'alghayr

(residuary in the companyof another) 62

CHAPTER 3Asabat Sababiyah 65

IMPEDIMENTS FROMINHERITAXCE 29 Distant Kindreds (Zawul arham) 65

Killing or Homicide (al-qatl) 29

Difference of Religion 32

Slavery 35

Contents

CHAPTER 6APPORTIONMENT FORQURA~ICHEIRS 67

Details on the Portions of theQuranic Hem. (Ashabal-Furudh) 67

CHAPTER 7SPECIAL CASES ONINHERITANCE 125

Inheritance of and from a MissingPerson 125

Inheritance of a Child in theWomb 129

CHAPTERSAD.\HNISTRATIO~OF

ESTATES 135

Jurisdiction and the Relevant Lawin the Administration andDistribution of Estates 135

Appendices 141

Bibliography 191

Index 193

PREFACE

This book aims at explaining the principles of faraid within theframework of its application and practice in j\1alaysia. The concept ofthe distribution of estate of the deceased 1Iushm, the author feels, maybe better understood with illustrations of appropriate prospectiYe casematrixes, and so efforts are also made to provide specific examples as tohow the system works within a specified set of facts and circumstances.Such presentations, it is hoped, ,,,ill not only benefit the readers in termsof knowledge and understanding of this area of the la\\: but add value[0 the scholarlv resources on law of succession.

It is to be noted that the f Ioly Prophet Muhammad (peace be upon him),in a Hadith narrated by Ibnu ;"lajah, Daruqutni and Hakim, has said 'learnthe j:uuid and teach it to the people because it is half (part of) the usefulknowledge and can be easily forgotten.' t"nfortunately, some of us seemedto have lost sight of the true meanings and significance of this saying andas a conseguence, albeit rather naiyely, came to doubt the dynamics andpracticability of the jaraid and its system.

In Malaysia, on account presumably of lack of knowledge of thefundamental aspects of the faraid, illlm-familial disputes in matters ofestates and inheritance are not uncommon, and family bonds as a resultwere unnecessarily threatened and even shattered. Some e\'en ignorantlylooked at the system as favouring the male species, while others weree\"er rcady to embrace the aIternatiye estate distribution methodologies,such as bibah, tmst and el'dem, which the banks, financial institutions andother interested entities had been promoting lately, \X'hile the spawningof these estate-planning products may be shan'uh compliant, or allowablein Islam, the principles of the/amid, which were rooted in the Qur'an andthe SlIlwah, must take precedence, It is thus the author's further hope, inthis respect, that this book will help dispel any doubt as to the functionalityof theftlfllid, as a just and fair determinant to deal ,,,ith the distribution ofa ;''1uslim's estate in this countn',

This book is not only designed to cater to the needs of students ofIslamic Law, but is also aptly most beneficial to anyone interested tounderstand the faraid and the method of its distribution.

ii Preface

j\fy gratitude and thanks goes to the Ahmad Ibrahim Kulliyyah of Lawsand the Islamic La''-\' Department, International Islamic Cniyersity 1falaysiafor continuously encouraging the staff to \\Tite a textbook on every subjecttaught at the kuiijl'yah, and to all who supported and encouraged me tocomplete the writing- of this book.

Dr Wan 0.-oraini Mohd Salim

International Islamic Cniyersity :\lalaysiaKuala Lumpur

FOREWORD

I have heard complaints that our academicians don't writeenough. My mvn complaint about books on Islam written in Malay ortranslated from Arabic is that they are mere compilations ofwho sayswhat. In spite of the intellectually-sounding title, when you read it youfind that it is no more than a collection of what earlier writers hadsaid on the subject.

It is for that reason that \vhen I was asked to write the foreword forthis book, I insisted on being given a pre-publication copy of the book.I wanted 'to see' what it is like, even if I don't read the book from coverto cover.

Yes, I received it, browsed through it, read portions of it. That is to befair to the book. To be fair to the author, since I do not know herpersonally, I have also asked for her curriculum vitae which I havealso received.

Now, I can say with confidence that Dr Wan ;-..Joraini ~lohd Salim isone of those Shari'ah academicians who is changing the landscape ofIslamic books and answering my complaint. The doyen among them,from a local university, to me, is Professor Mohammad Hashim Kamali,who also hails from the International Islamic University Malaysia.He has been aptly described as 'the most-read author on Islam inEnglish', an epitaph that I fully concur. It is his writing that had startedchanging the landscape of rslamic books especially in the way heanalyses the issues, looks for authorities and analyses them in minutedetails, applies the principles extracted therefrom and explains hisviews with cogent and valid reasons that are difficult to refute. That isthe mark of his great scholarship.

iv Foreword

I am happy to say that I have myself ~Titten a few forewords for bookswritten by academia from International Islamic University Malaysia.I must say that I find the satisfying characteristics that I look for.\Vhether they realize it or not, they form a new group of contemporarywriters who give a new dimension to books on Shari'ah.

This book is written in English which I have described as 'the languageof modern mu'amalat' and also the language that is globalizing theShari'ah both in respect of its development and acceptance. lancejoked at a Syariah Advisory Council Meeting that if Imam Shafi'e wereto come back into this world he might have to re-Iearn modernmu'amalat, may be partly in English! I am very sure that it will reachmore readers than if it were written in any other language.

Like the net\' generation of Shari'ah scholars in Malaysia who areproving to be more and more relevant to contemporary issues, Dr.\\'an Noraini has the advantage of both education in Shari'ah andLaw, in English and Arabic (as well as Malay) and exposed to theWestern-type of analytical education beside the style of writing. Allthese are evidenced in the book which sourced from the Qur'an,Hadiths, opinions of traditional ulamas as well as from Acts ofParliament and judgments of the civil courts. That enriches thediscussion as well as the style of writing. The language is simple andstraightforward, without even a hint of Arabic-English that wesometimes find in such books.

Browsing through the book, I realise how useful this and similar booksof this generation will be to law students and the legal fraternity. Iremember, when I was a law student in the 1960's there were not morethan three text books on Islamic law in English in the library, and allwere from India. It \'lias the same in the 70's and 80's when I was a legaland .judicial officer. The vacuum has now been filled up by this 'newgeneration' of authors. I dare say that they will have more 'students'(readers) than the Tok Gurus in the pondoks, including non-Muslims.

Foreword V

I hope I have settled once and for all, through the judgment of theFederal Court in Lat~fah Ete Mat Zin v. Rosmawati Binti Sharibun 6­Anor (2007) 5 ClJ 253, the issue regarding the respective jurisdictionsof the Civil and Shari'ah Court in the distribution ofestates ofMuslims:The Syariah Court determines the inheritance, the beneficiaries andtheir respective shares as evidenced by the Sijil Faraid, and the CivilCourt gives effect to it by making the order of distribution inaccordance with the Sijil Faraid.

However, in my experience as a High Court Judge, I saw a weakness inthe implementation, not the system. The Civil Court accepts the SijilFaraid without question, rightly so since the matter to be determinedtherein is within the jurisdiction of the Syariah Court and the SyariahCourt Judges are presumed to be knowledgeable in the Islamic law ofinheritance and are always right. That may not be so. \\That is moreimportant is the ascertainment of facts. Just to mention one case thatI came across, a non-Muslim lawyer one day appeared before me withan application for a vesting order by his client, a Muslim, of a piece ofland. From the affidavit of the applicant prepared by the la\V}'er andthe Sijil Faraid issued by the Syariah Court, I noticed that the applicantwas the fifth generation of the registered proprietor. The family treeshowed that at every level, there was only one surviving malebeneficiary right down to the applicant. The only evidence to supportit was the affidavit of the applicant himself. I found it hard to believeand rejected the application and told the lawyer to come back withmore convincing evidence. The case did not come back again.

Clearly what happened there was that, the lawyer relied on theapplicant and the Syariah Court Judge, in turn, relied on the statementof facts provided by the la\\'Yer and issued the Sijil Faraid. What isimportant is that an inquiry should be held by the Syariah Court todetermine the beneficiaries before the Si)il Faraid is issued. I am quitesure that that is not an isolated case.

vi I Forew ord

This book is aptly described as a practical guide to the laws offaraid.It is not a book that one can read at leisure unless one is only interestedto know the principles. It is a must for students of fa raid, for SyariahCourt Judges, lawyers and Civil Court Judges too.

I congratulate the author and the publisher and wish the book asuccess.

Tun Abdul Hamid Mohamadtunabdulhamid@gmail.comhttp://www.tunabdulhamid.my21 June 2012

article

articles

order

page

pages

paragraph

rule

rules

schedule

schedules

sectJOn

sections

sub-section

LIST Ui' AHHRl::V lAllUNS

art.

arts.

0.

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pp.

para.

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'lAHLE U~ CAS.ES

AAbdll/Rohim v. Abd Hamid(1983) 2 ;\fLJ 78Amanll/Iab Ha;iAIi HaJ"san v. ]amilah SImk .Hadar

[197 4] 3L)JS 2; [1974] 1 U\S 6

ITn The .\fatter '!f The Efla/e and E.t/eds of Timah Abdullah.

deaaJed; Ihe of}i..ia/ AdminiJ1ralor, FAIS v. Magan Alohihilw

c~ On [19-tU] 3 L-"S 1

MAla;lts Agama Islam IFi/'9'ah Persekl//I/an fwn. L"m Ee S eng dan

5"atu l..agl [2000] 2 eLJ 597

p

Pengarah Jaba/an Hal EhlVafAgama Islam, i\Tt:r,en S embilan t'. Fandah

Chin dan Seorang Lagi [1996] 2 SY.\ 3PP v. All/hamad SuhaimiAbdu/AZiZ [2002] 2 CLJ 209PP v. ,UI/hamad Suhaimi Abdu/AZiZ [2005] 2 CLJ 826

RRe Ex Parte App/italioll '!f Rid:;}J'an Ibrahim (pmumplion '!f Death)

[2002] 4 CLJ 502Re All/Iehilim AliasAshnn, dereased; Hqji Alawar t'. Attorn~}.Genera/

[1960] 1 Ll\iS 113

5ShaikAbdull..atif v. Shaik Elias Bu."{1915) 1 FMSLR 104Sili binti Yatim t'.•\1ohamed Sor bin Bl!jali [1928] 1 L:::--":S 30~}'fd Ibrahim bin Umar afS ag'!ff v. AG [1947] 1 L:--JS 102

W'Wan Shahnman IFm SuItiman G:'" Anor It Siti l\Torhqyali Mohd

Dalld [201 0] 1 CLJ (SY\) 85

32-3

4330

30

12

45

4527

19

'JAHLb O~ LElIlSLAll0N

AAge of Majority Act 1971

s.2

CCourts ofJudicature Act 1964

s. 24{f)

DDistribution Act 1958

s.2

EEmployees' Social Security Act 1969

s. 15s. l.5(g)

Evidence Act 1950s.108

IInterpretation Act 1948 and 1967

s.3s.5

Islamic Family Law (Federal Territories) Act 1984s. 11s.53s.111s.112

MMental Disorders Ordinance 1952

s. 10

Muslim Wills (Se1angot) Enactment 1999s.2

s. 2(1)

s.3s.6

s. 6(1)

s. 6(2)

41

136

33

2121

12-4

16

16

24

13

130130

42

39,4225

3941-42

4242

xii ITable of Legislation

s. '7

5.12s.14

s. 1S(l)

PPresumption of Sur"ivorship Act 1950

5.2

Public Trust Corporation Act 1995

s.17(1)

SSmall Estates (Distribution) Regulations 1955

s. 3(2)s. 5(1)s. 8(1)s.9

s. 13(1)s. 15

s.15(1)s. 15(2)

s.18(1)

s.31(2)

Syariah Court Evidence (Federal Territories) Act 1997

5.80

43

4444

44

14

139

136136

U613'7138138138138

136

137

12-3, 125

CHAPTER 0

INTRODUCTION

\\ealth is an importam resource in human's ,-voddly life_ It is a

symbol that reflects the starns of a person in society It is also a mediumthat can transform a persons life from rags to riches and the humble to

the arrogant. It may affect a family by uniting or shattering it. A son, inpursuit ofwealth, may take to killing his father; a businessman, to stay on

top, may attempt to kill off a rival; one may ewn risk his life in order toachieve satisfaction and fulfill worldly desires through illegal means. Onthe other hand, wealth is undoubtedly beneficial to mankind. Throughwealth, we can better serve our religion and nation, help others, educateour children, provide our families ,-vith better food, clothing, shelter andtransportation, and even care for them after death_ \\'-ealth, hO\vever, cannot

determine a person's status in the eyes of Allah (sow.t) and does notguarantee his place in paradise_ It is something that he cannot to thegrave. Everything he leayes behind will then be part of his estate, to beinherited by his heirs according to the la\V of distribution determined bythe Lawgi\-er.

There are rules and principles governing the administration and distributionof a I\Iuslim's estate upon his death that are based on specific dinnesources. The sources also reveal specific persons who are entitled to theestate of the deceased ,-vith specific and non-specific portions. It is therefore

necessary to stress and emphasise that knowledge of the basic rules andprinciples of the distribution of estate is very important, as it can a\"oiddisputes and hostility among family members. I t can also avoid

misappropriation of property and guarantee that the right persons getwhat is rightfully theirs.

It is, hmveycr, beneficial and significant to start with the historicalbackground of the la\V of succession in Islam, to enable a better

understanding of the rules and principles in the administration anddistribution of a Muslim's estate upon his death.