INHERITANCE, WILLS AND ADJUDICATION OF ESTATES By ABU MUSADIQUE

 Pre-Islamic ERA

Pre-Islamic Arabia was characterized by unqualified patriarchal despotism. There was no distinction
between ancestral and self-acquired property. Inheritance devolved on male heirs and property
ownership concentrated into unified families. Females did not have the right to inherit. This was based
on the strong Arab tradition that those who wielded the sword have the exclusive right to inherit.

 Reforms introduced by Islam

The advent of Islam brought about the following reforms:

1. Females were made co-heirs of men;

2. Property is divided among heirs on democratic basis and on the basis also of responsibility ; and,

3. Transmission of inheritance devolve upon the basis of those who have the strongest claim and
benefit.

 Law of Succession:

The law of succession is either:

1. Optional or Iktirayiyyah, in the form of bequest or wasiyah; or

2. Compulsary or Ajbariyyah, by means of the rules prescribed by Shari’ah (Islamic law).

 SCIENCE OF INHERITANCE:

Imul-Mirath is the generic term for the science of inheritance.

 As a legal science, it is known as Imul-Faraid. It is specifically defined as the science of fixing

shares and obligations in inheritance. Faraid is derived from Fardh (ordained, fixed, and
determined).

Mirath is a generic term while the letter is a precise statement of the law (faraid).

Faraid (Science of Inheritance) deals with the fixing of shares, qualification of heirs, rights and
obligations and the proportion of shares with respect to the state of the decedent.

 Importance of Imul-Faraid

According to the Holy Prophet (S.W.S.)

“Learn the laws of inheritance, and teach them to the people; for they are one-half of useful
knowledge”.
  The Prophet has also enjoined the study of the science of inheritance during the lifetime by
emphasizing that this science will; disappear if not studied and anarchy (Fitna) will ensue if no one will
be judged (law) among his people (knowledgeable of the science). The study of Imul-Faraid is considered
by scholars as Fardhu-Kifhaya; meaning obligatory to some members of the community (Ummah).

 Sources of the
Science of Inheritance

The basic sources of the science of inheritance are:

 Holy Qurán

 Hadith

 Ijma-al-ummah (consensus of the community, usages)

 CHAPTER 1

Rights attached to the Estate of the Decedent

(Al Hukuk al Matasalika bi Tarikah)

 Definition of the Estate of Decedent (Taif el Tarikah)

The estate of a decedent is called Tarikah. This consists of the growth estate of the decedent. It includes
all properties, whether movables or immovable, claims and charges, liens, claims arising from
compensation, i.e., blood money (diyat), wages or remuneration for employment or services rendered,
shares or benefits from chargeable endownment (waqf), water rights, rights of way, easement, etc.

 Charges or Liens to the Estate

1. Specific rights (Al Hukuk al Ainiyah)

2. Rights of Decedent Over his Estate – (Hukuk elmaith-minalfarikah)

3. All kinds of Debts (Audyon al Mutlaqah)

4. Rights of Legatees (Al Hak el Waratha)

 1. Specific rights (Al Hukuk al Ainiyah)

These rights are specifically attached to the property of decedent. These include zakat (legal alms or
tithe) and mortgages or pledges on specific properties used as guarantees or collateral for a loan or debt
(as understood in Islamic law).
According to Imam Shafi’i, the right of God (Allah) has preference over other obligations. The zakat, as
prescribed must be charged on specific properties like agriculture produce, working animals or cattle
and other properties subject to zakat.

 2. Rights of Decedent Over his Estate – (Hukuk elmaith-minalfarikah) –

This is the only rights which a person will have after his death over his estate, i.e., funeral expenses. It
consists of fees to be paid or incurred in the washing, shrouding and interment of his remains, which
must be performed in a manner suitable to his conditions. These expenses, as agreed among the Muslim
jurists, must be reasonable. These also include expenses to be incurred for his support before the
settlement of his estate.

 3. All kinds of Debts (Audyon al Mutlaqah)

What remains after deduction of the funeral expenses and special right are subject to payment of all
kinds of debts of the decedent which have incurred before his death. There are two (2) classes for such
debts:

 debts incurred in good health (Aduyon Mursala); and

 debt incurred in illness.

 4. Rights of Legatees (Al Hak el Waratha)

The remainder of the estate of the decedent become the disposable portion of his estate in favour of his
heirs after the deduction of the foregoing charges. These rights of the heirs, over the disposable estate
of the decedent are governed by the rules of inheritance with respect to requisites, conditions,
qualifications and rules on exclusion.

 Chapter II.

Essential Elements and Requisites

 Essential Elements of Inheritance (Arkhamul-Mirath )

Ruk’n is the singular of Arkhan (essential element). Muslim jurists make distinction between essential
elements and surut (conditions, sing. sart).

These essential elements are:

1. Death of a decedent (al murath)

2. Presence of heirs (al warith)

3. Estate left by decedent (al Mauruth)

 Essential Requisites of Inheritance (Surut)

These essential requisites are conditions precedent before the settlement of the estate under the law of
inheritance. Specifically, they are:

1. Proof of the death of a decedent (Maut al Murath)

2. Survival of the heirs of the decedent (al ilm jihati al irth)

3. Ascertainment of the basis of inheritance (al ilm bi jihati al irth)

 Chapter III

Basis of Inheritance

The inheritance (Ashab-ul-mirath) was founded on four (4) causes namely:

1. Kinship or blood relation (nasa or karabah)

2. Marriage (nikah zaudziah)

3. Clientage or special cause (wila)

4. Al Islam (Bait-ul-mal)

 Kinship Relation

Kinship or blood relation are also founded on three (3) sub-causes:

1. Parent-Child Relation (Bonua)

2. Parentage (Obua)

3. Brother-Sister Relation (Okua)

 Marriage Relation

Marriage relation must be based on valid (lawful or legal) marriage and not invalid or void marriage
(batil). There is agreement among Muslim jurists that there are mutual rights of succession arising from
void or invalid marriage. It is submitted that if irregular (Fasid) marriages are validated in accordance
with Islamic law, mutual rights or succession will arise there from, although there are some varying
views.

 Wila or Special Cause

Relationship by special cause (wila) are of two (2) types.

1. Wila by emancipation (Wila-ul-itik)

2. Wila by mutual friendship (Wila-ul-Mawalat)

  Heir by Acknowledgement

This established when both the acknowledger who is persons of unknown descent has admitted as
blood tie or relation other than paternity. If both persons of unknown parentage call themselves
brothers and one of them dies without leaving legal heirs, the survivor could inherit from the other.

 Universal Legates and Al Islam

In the default of the foregoing, the universal legates and the Bait-ul-mal succeed over the property of the
decedent. A universal legatee is a person in whose favour a decedent has made a general devise his
whole property in the absence of any legal heir. Under the law, a person can only make a “will” not
beyond a third of his state”.

 Chapter IV

Impediments or Disqualification of Inheritance

(Mawani-ul-irth)

There are three (3) impediments or grounds for disqualifications of inheritance:

1. Slavery (Riq)

2. Murder/Homicide (Qat)

3. Difference of Religion (Ikhtilafut-deen)

 Chapter V

Rules on Exclusion

(Hujub)

There are two (2) forms of exclusion, namely:

1. Total exclusion (Hujub German)

2. Partial exclusion (Hujub Nukshan)

The doctrine of exclusion which some residuary are preferred over others is known as the al-Jahari rule.
The rule considers: (a) first to the order, (b) next to the degree, (c) to the strength of blood ties.

 Total Exclusion (Hujub German)

The rules on total exclusion are summarized as follows:

1. There are persons who are never totally excluded, namely:

a) father , b) son, c) husband , d) mother , e) daughter, and f) wife

2. A person who is related to the deceased through another is excluded by the presence of the latter.
For instance, a father excludes the grandfather, uncle, aunts; a son excludes his son (son’s son); other
excludes her mother (mother’s mother or grandmother), etc. A son also excludes another’s son’s son.

3. (a) The nearer relative of the decedent in the lineal ascending and descending line include the more
remote, excepting the mother’s child (uterine brother/s or sister/s on her side are not excluded by her).
(b) Nearest relative from mother side excludes father’s relative from father’s side. Example: A mother’s
mother excludes paternal grandmother (father’s father’s mother). (c) Nearest relative from father side
does not exclude father relation from mother’s side. Example: Mother’s mother’s mother (true
grandmother) is not excluded by father’s mother.

4. A person who is himself excluded may exclude others. This is the same rule No. 2, except in cases of
exclusion by disqualification.

 Example: If a son turns a postate, the son’s son (his own son) is not necessarily excluded.

 B. partial Exclusion
(Hujub Nukshan)

Partial exclusion is a case of an heir who reduces the share of the other or vice-versa when they co-exist.

1. The share of a husband when co-existing with a child or child of a son of the decedent is reduced
from ½ (when alone) to ¼.

2. The share of wife when co-existing with a male descendants of the decedent is reduced from ¼ to
1/8.

3. The share of a daughter if alone is ½ but if she co-exist with another daughter or more, Their share
is 2/3. The same rule govern’s plural son’s daughter, fall and consanguine daughters.

4. A mother’s share if there are descendents of the decedent or are collaterals is reduce form 1/3 or 1/6.

5. The inverse rule:

(a) Share of a uterine brother or sister when alone is 1/6, but if there are two or more of then, they
collectively gets half the share of a brother.

(b) Share of a son’s daughter when co-existing with a daughter (her aunt) and she is alone is reduced
from ½ to 1/6. The same rule is true with respect to a consanguine sister co-existing with one full sister.
(But if there are more full sister, takes nothing, unless has a consanguine brother).

 (c). Other Rule on Exclusoin

1. Relations by full blood only takes preference with respect to relations on the father’s side. Hence, a
full brother excludes a consanguine brother or sister. But a mother does not excludes full or half brother
and sister.
2. When there is a male or female heir of the same class and degree, the latter will take half the share of
the former.

3. The general rule among residuaries is that the nearer always exclude the more remote. However, the
nearer residuary does not always exclude a more remote share, for instance a mother’s mother is not
excluded by a father; nor does a nearer sharer exclude a more remote residuary not even a more
remote sharer, unless the right to inheritance is founded on the same relationship.

4. Full brother and sister are excludes by a son, son’s and a father. Half brothers and sister on the
father’s side are also excluded by the same persons and also by full brother and sister.

5. Half-brothers and sister on the mother’s side are excluded by a child, the child of a son, a father and a
grandfather of the decedent.

6. All grandmothers, whether material, are excluded by a mother; and paternal grandmothers are
excluded by a father as the latter also excludes his father.

7. The father excludes his own mother. However, the grandfather does not exclude the paternal
grandmother.

8. The father reduces the share of the mother co-existing with a husband or widow to one third of the
residue after deduction of the husband or window’s share. (This is a case of mas’ala Amriyah). However,
this rule does not hold true with the respect to the grandfather.

9. When an heir is the only son of the decedent, he takes the whole inheritance; if they are more, they
share equally.

10. A daughter co-existing with a son take half the share of her brother; if alone, she takes one-half of
the inheritance. When there are two or more daughters, and there is no son, take 2/3 among them
equally.

11. A consanguine brothers would have nothing when co-existing with the decedent’s husband, mother
and uterine brothers or sister.

12. A consanguine brothers or sister who are co-existing with full sister when there is daughter of the
deceased co-existing with them.

13. The sons of full brothers and consanguine brothers follow the same rule relating to their fathers,
except the following:

a. They do not reduce the mother’s share to a sixth.

b. They are excluded by the paternal grandfather.

c. They do not render their sisters residuaries.

d. They can be excluded under the case of Musharrakah

14. They rules governing the full or consanguine brother of the father is the same as those relating to
the full or consanguine brother of the decedent.

 Chapter VI

Legal heirs and their Classification

The Sunni School of law classify heirs into three classes, namely:

1. Sharer (Ashabul-Faryd)

2. Residuaries (Asabah) or Agnates

3. Distant Kindred (Dhawi Arham) or uterine relations.

The male heirs are:

(1.) son, (2) son’s son, (3) how-low-soever father, (4) true grandfather, how-high-soever (parental), (5)
full brother, (6) full brother’s son, (7) consanguine brother, (8) consanguine brother’s son, (9) uterine
brother (mother’s child), (10) full uncle (father’s full brother), (11) full uncle’s son, (12) consanguine
uncle, (13) consanguine uncle’s son, (14) husband and (15) emancipator or patron.

The female heirs are:

(1) daughter, (2) son’s daughter how-low-soever, i.e., son’s son daughter, (3) mother, (4) true
grandmother, how-high-soever (maternal) including father’s mother or father’s mother who are also
true (5) full sister, (6) consanguine sister, (7) uterine sister (mother’s child), (8) full aunt (father’s full
sister), (9) consanguine sister (father’s half-sister), (10) wife and (11) emancipatee or patroness.

 A. Shares (Asabah Furud)

Under the category of the” sharers”, there are (4) males and (8) females, making a total of twelve (12),
namely:

(1) father, (2) grandfather (true) or lineal male ascendant (when not excluded) how-low-soever, (3)
uterine brother, and (4) husband; and (5) wife (widow), (6) daughter, (7) son’s daughter how-low-
soever, (8) mother, (9) grandmother (s) (true), (10) full sister, (11) consanguine sister (half sister or
brother side), and (12) uterine sister (half sister on mother side, also known as mother’s child or
daughter, Aulad-il-om).

 True and False Ancestors

1. True grandfather – is a male ascendant in whose line of relationship to the deceased no female
relative intervenes. For examples: Father’s father, Father’s Father’s father, Etc.
2. False grandmother – is the mother’s father because it is related to the deceased through a female
relative, the mother.

3. True grandmother – is a female ancestor in whose line of relationship to the deceased no false
grandfather intervenes (i.e., the mother’s father). For example: the mother’s mother and father’s
father’s mother are true grandmothers. However, the false grandmother are: The mother’s father’s
mother.

4. False grandmother – Any female descendant into whose line of relationship to the deceased a mother
enters between two fathers.

 B. Classification of Inheritance

The Right of heirs under the Sunni law are classified into:

1. Shares (furud, meaning legally fixed)

2. Shares plus residue (al fardh watha’asib)

3. Share (taasib)

 Allotment of Share in the Holy Qur’an

The share specifically allotted in the Holy Qur’an are:

(1) ½, ¼ and 1/8;

(2) 2/3, 1/3 and

(3) 1/6 (in that order respectively).

 1. One-Half ( ½)

(a) Share of the Husband when decedent (wife) left no descendants (neither child or Son’s child).

(b) Share of one daughter of the lions (when alone), and she has no brother or sister, nor are male
descendants.

(c) Share or son’s daughter of the lions and decedent left no descendants.

(d) Share of a full sister ( when alone) neither are there son or son’s son, no father as would exclude her
or grandfather as would render his residuary; nor son’s daughter or a brother as would render residuary.

(e) Share of consanguine sister (half sister on father side) when alone, and decedent left no male
collateral (her brother or male cousin as would render her residuary).

 2. One-Fourth (¼ )

 Share of husband if decedent left a descendant (child) or son’s child.

  Share of a wife if decedent has left no descendant (child or child of a son). If there are more
wives, they share in the fourth equally.

 3. One-Eight ( 1/8)

(a) Share of a wife if decedent has left descendant (child or child of a son). They share equally in the 1/8
if they are more.

 4. Two-third (2/3)

a. Share of two daughters or more, if there are no son (her brother) or male descendant as to render
them residuaries.

b. Share of two son’s daughter or more, if there are no son or daughter or son’s; and when not excluded
by: (1) two daughters of decedent, unless they co-exist with a lineal male descendant(son’s son) or their
brother of the same or lower degree; (2) by son or any lineal male descendant nearer in degree than
themselves.

c. Share of two full sisters or more, when there are none of the lions (descendants) like a son, or no
father, daughter or brother which could effect their share.

d. Share of two consanguine sisters or more, if there is no consanguine brother, nor full sisters as could
exclude them.

 5. One-Third (1/3)

(a) Share of a mother if decedent left neither descendants or collaterals (brother or sister whether
consanguine or uterine).

(b) Share of uterine brothers or sister, two or more of them (mother’s child).

 6. One-Sixth (1/6)

a. Share of a mother, if decedent left descendants (child or son’s child or collaterals).

b. Share of a grandmother, in the absence of mother (or when not excluded); if they are more they
share equally in the sixth.

c. Share of a father, if decedent left a male lineal descendants (son son’s, how-low-so-ever); neither are
there shares like a husband, mother or a grandmother which would render him a residuary (in the case,
he takes the remaining residue); father takes 1/6 plus residue when co-existing with a daughter,
otherwise he takes a sharer only if there is any other male lineal descendant (son, son’s son, etc.)

(d) Share of a grandfather, in the absence of the father (or when not excluded) and decedent has no
male descendant nearer in degree.
(e) Share of a son’s daughter when co-existing with a daughter (her aunt), and she has no brother’s son
and when not exclaimed by a son or by any male lineal descendant who is nearer in degree to decedent,
to make up to 2/3 (½ +1/6).

(f) Share of a uterine brother or sister when alone, and there are neither male lineal ascendant or
descendant (father, grandfather, son, son’s etc.)-

(g) Share of a consanguine sister, (half sister of father side) when co-existing with one full sister, if there
is neither a consanguine brother (Jinx Brother) which could make her excluded. If the co-exist with two
of more full sister , she takes nothing, unless there is a consanguine brother with her (Blessed Brother).

NOTE: Uterine sister take like a uterine brother (Mother’s Child-Aulad-il-om).

 Share of Sharers

The shares of the sharers are summarized as follows:

1. Father -

(a) He gets 1/6 as sharer, if decedent has male descendant.

(b) He gets 1/6 as sharer plus residue if decedent has left a daughter or son’s daughter.

(c) He gets residue if decedent has left no descendent (male or female).

2. True Grandfather-

(a) He gets 1/6 if not excludes by father’s

3. Uterine Brother (mother’s son)-

(a) He gets 1/6 if alone.

(b) If two or more, they get one-third 1/3 (they share equally).

4. Husband-

(a) He gets ½ if decedent left no descendant.

(b) He gets ¼ if decedent left descendants.

5. Wife-

(a) She gets ¼ if decedent has no descendants.

(b) She gets 1/8 if decedent left descendant.

6. Daughter-
 (a) She gets ½ if alone

(b) If they are two or more, they take 2/3.

9. True Grandmother-

(a) She gets 1/6 when not excluded (by mother).

7. Son’s Daughter-

(a) She gets ½ if alone

(b) She gets 1/6 if co-existing with one daughter.

(c) She takes nothing if there is a son or more daughter (other than one).

(d) She is rendered a residuary (take the remaining residuary) if co-existing with a son’s son (i.e., male
cousin)

(e) If there are two or more son’s daughter, and no descendants, they take 2/3.

8. Mother-

(a) She gets 1/3 if decedent has no descendants.

(b) She gets 1/6 if decedent has left descendant.

(c) She takes 1/3 of remaining residue of co-existing with a sharer like the decedents husband or wife,
with father’s or 1/3 of the estate if grandfather.

12. Uterine sister-

(a) She gets 1/6 if alone.

(b) If two or more, they gets 1/3.

10. Full Sister-

(a) She gets ½ if one and decedent left neither son, son’s or male ascendant, or she has a brother as
would make her a residuary.

(b) If co-existing with a full brother or brothers, she takes half of the share of the brothers.

(c) She is excluded by son’s son, how-low-soever, and father of decedent.

(d) If two or more, they take 2/3 when not excluded.

(e) She take as residuary when co-existing with daughters or son’s daughters.
11. Consanguine sister (sister father side)-

(a) She gets ½ if alone.

(b) She gets 1/6 if she co-exists with a full sister to complete 2/3 but if she has a consanguine
brother, she take nothing.

(c) If she co-exists with two or more full sister, she take nothing, unless she is consanguine brother
(Asabah bil ghair).

(d) If there are two or more consanguine sisters, they take 2/3 when not excluded.

 B. Residuaries (Asabah)

The two classes of residuaries are:

 By blood relation (Asah bi nasab)

 By special cause (Asabah bi sababia)

The Asabah ni nafs is Also known as Asabah propio jure

It include agnatic made of relations into whose line of relationship to the decedent not female enters. If
a female relation enters, it will either be under the category of “Sharer’s” i.e., mother’s son or uterine
brother

1. Residuaries in the their own rights are divided into four classes

a. Descendants’ or male lineal offspring of decedent son, son’s son, how-low-soever;

b. Ascendants or male lineal roots of decedent such as father, father’s father (true male
ancestors), ho-high-soever;

c. Offspring of his father such as full and consanguine brothers and their male lineal descendants,
howsoever distant in degree; and

d. Offspring of his male ancestor (true grandfather) , how-high-soever such as lineal male
descentants , however remote, of his lineal male ancestor like full blood and consanguine
uncles and their male descendants.

 NOTE: Descendants is the male paternal line take preference over female descendants in the
female paternal line. If the relation are of the same degree of affinity, the strength of blood or
consanguinity would take the order of preference. The full blood relation take preference over
the half blood relation . 
  If there are several residuaries, the estate is divided per capital and not per stripes (per head
and not per family).

 For example, if the surviving heirs consists of one son of a brother and ten (10) Son of a
brother’s brother , the estate will be divided into eleven (11) part and each son will take one
part of it.

 2. Residuiaries though another’s right.

 There are females who become residuiries when they co-exist with certain male either of
the same degree or lower degree and there are four (4) of such class namely:

(a) Daughter co-existing with sons;

(b) Sons daughter co-existing with a sons son or male descending remote in the Direct descending line.

 NOTE: If the surviving heirs consists of a son’s son’s daughter and a son’s daughter, the latter
1/2 as if she were a daughter of the decedent while the former takes 1/6 as if she were a son’s
daughter of decedent to make for 2/3 (1/2 – 1/6). However, if there are two son’s daughter
takes nothing. Unless she is with the Lineal male decedent of the same or lower degree like a
brother or a nephew.

(c) full sister co-existing with her full brother ; and

(d) Consanguine sister with her consanguine brother.

Illustrations:

(a) Survivors: 2 males, 3 females

Shares : 2 x 2 – 4 + 3 = 7 units (total)

If does not follow that male residuaries would render their sisters residuaries all cases. It is only in cases
were the female heir is herself a “Sharer” that she would become a residuary when co-existing with a
male residuary.

 For example, if a man dies and is survived by a widow paternal uncle and an aunt, the aunt not
being a sharer takes nothing. The aunt not entitled to the her deceased nephew. Her brother
(the uncle) takes the entire remaining residue after allotment of the widow.
(c) When there is full sister, co-existing with consanguine brothers and sisters, the Full sister takes ½
and the remaining residual is divided between the consanguine brothers and sisters on a two to one
ratio.

(d) When there are several full sisters, they will take 2/3 the remainder will be divided if the case is the
same as above.

(e) If decedent left a full sister and a consanguine sister, the full sister takes 2/6 and the residue is
divided among them pro-rata.

(f) When there are two or more sisters and several consanguine sisters but without any consanguine
brother, the consanguine brother, the consanguine sisters take nothing.

 3. Residuaries with another

There are two classes with residuaries with another, namely:

 full sisters co-existing with daughters or son’s daughter, and

 consanguine sister co-existing with daughter or son’s daughter(s).

Illustrations:

a) if the survivors are one daughter or son’s daughter with full or consanguine

b) sister, the daughter of son’s daughter takes ½ while the full or half sisters get the residue.

c) When there are several daughters of son’s daughter, they get 2/3 and residue goes to the sisters
(full or half).

d) When there several daughters and full sisters co-existing with son’s daughter’s, the daughters
and full sisters exhaust the full inheritance or whole inheritance and son’s daughter get nothing.

a) When there are two daughters, a son’s daughter and a lineal male descendant like a son or son’s
son, the two daughters get 2/3.son son’s 2/9, being 2/3 of the residue and the son’s daughter
takes remaining 1/9. this is a case of correction to inform to the 2:1 ratios sharing of males and
females on the same degree.

b) If decedent leaves a daughter and several son’s daughters, the daughters take ½ and the son’s
daughters take 1/6, and the residue is divided among the Daughter and son’s daughters pro-rata
(equal sharing). however if there are Two or more daughters, they take 2/3 as their share and
the remainder Pertains to them under the “Doctrine of Return” while the son’s daughter takes
 nothing. But if there is a male heir, he makes the females (his sisters or Cousins) residuaries.
The two or more daughters take 2/3 and the remainder goes to the son’s child in proportion to
2:1, the shares of female is half the share of males.

 C. Status of Residuareis

Preference to Propinquity

Preference is given to propinquity to the deceased when are several relation who may be classified as
residuaries of the different kinds. For instance a residuary wit another when nearer to the deceased
than the residuary himself would be given preference. Example, when a person dies leaving a daughter,
a full sister and the son of a half brother by the father (consanguine), the other half although she
herself is a residuary of a daughter and nearer to the decedent than the consanguine brother’s son.

 CHAPTER VII.

Computation of

Shares of inheritance

(kayfiyatu)

A. Looking for the Root of the problem (Usual al Masail). The Root of Problem (using aslul-mas-ala )
is found by first ascertaining the relationship of the denomination of the appointed shares, viz.

½ ¼ 1/8 2/3 1/3 1/6

The relationship between the denominators is called Takalhuf, being dissimilar or disproportionate.
Numbers which are similar or proportionate is called (Tamasul, i.e., and 2 and 2, 4 and 4, 3 and 3, 6 and
6, 8 and 8).

The 3 types of Takalfuh Numbers:

1.Taklahuf-i Tadakhul – meaning, numbers of fractions which are unequal but are proportionate in terms
of ration, i.e., the biggest number or unit could be divided in proportionate unit or units by the smaller
number without any remainder or unequal fraction.

4+2=2 2/2=1

8/4=2 2 / 2 = 1 or 2 – 2 = 0

2. Takalhuf – I tabayon – numbers which are not only disproportionate but are contradictory in terms of
ratio or proportion, i.e., ½ and 1/3 or 2/3 and ¼ or ¼ and ¼ and 1/6. Neither of the smaller denominators
could equally divide the bigger denominators.

  3 / 2 = 1.5 4 / 3 = 1.33

6 / 4 = 1.5 or 6 / 2 = 3 / =1.5
3) Tagalhuf – i – Tawfhug- are numbers which can be reconciled by looking for the smallest numbers
(divisors) that could divide each of them. The quotient of each number is multiplied with the respective
dividends in order to obtain the root of the problem.

Example: 1/6 and 1/8 ¼ and 1/6

To look for the root of the problem let “x” and “y” be the unknown (root of the problem) which are
equal to the given numbers.

x = y ; x = 6/2 x 8 ; y = 8/2 x 6

x= 3x8 y=4x6

x = 24 y = 24

4) Constant root of the problem. The constant roots of the problem with the operation of the above
formula are always: 2, 3, 4 , 6 , 8 , 12, and 24 (seven numbers)

The discovery or these numbers which have been found to be constants in the solution of sharer
in inheritance as prescribed in the holy Qur’an has been said to establish the miracle of the numbers in
the Holy Book of God which are ascertained by looking for the relationship of the denominators of the
fixed (fradh) shares

 B. Doctrine of Correction (Tas’he)

It may happen that the respective shares for the particular heirs co-existing with each other would be
lesser of difference from the lawfully appointed (fradh) shares as prescribed by Islamic law. In this case,
Sunni lawyers have devised a formula or doc trine called tas’he (Doctrine of correction) in order to con
form with fixed portion of the Holy Qur’an.

Illustration:

(1) A problem where the shares are the perfectly distributed without the need of correction.

Problem

(survivors) : Full sister daughter wife root

Answer : remaining the ½ 1/8 (8) residue

- 8 0

Shares : 3 + 4 + 1 = 8

Solution: 8/12 = 4 8/8 = 1 4+1=5; and 8-5=3

This solution of the problem is called Mas-ala-adila (perfect problem) because there is no need to make
any correction. The relationship of the denominators (2 and 8) is Taqalhuf-i-Tadaqhul because the
smallest number can proportionally divide the bigger number, i.e., Divide 2=4, 4 divide 2 = 2 and 2 divide
2 = 1 hence there is no remainder or broken number and the results are whole numbers or integers.

2. A problem where there is a need for Tas’he correction)

Problem

(Survivors) : Daughter MotherWife 4 Full sisters remaining residue

Answer : ½ 1/6 1/8

Shares : 6 2 + 3=9 (3)

Cor : 12 + 4 + 3=9 (5)

Final Cor: 48 + 16 + 12 = 76 (20) (ok)

12 x 8 = 96 – 76 = 20

Root of the Problem: (1/2) 12 x 2 = 24

9/3 Root of correction : (24) (96)

-19

 Chapter VIII

Doctrine of Increase

It sometimes happen in fractional that when there are several sharers co-existing, their fractional shares
when added up to amount to a great more than the integral quantity. In order to make the difficulty
arising, Sunni lawyers make a proportionate abatement in all shares by increasing the common divisor.

This method is known as Doctrine of Increase or “Aul”. It is common divisor for the purpose of yielding
the requisite number of shares.

Illustration:

1. Problem

Survivors : Husband 2 full sisters Root

Answer : ½ 2/3 (6)

Shares: 3/6 + 4/6 (7/6)

Aul : 3/6 reduced to 3/7

 4/6 reduced to 4/7

7/6 7/7 =
equal to unity

Root of Aul : (7) or 7 – 7 = 0

2. Husband ½ = 3/6 reduced to 3/7

Full sister ½ = 3/6 reduced to 3/7

C. Sister (SF) 1/6 = 1/6 reduced to 1/7

3. 2 full sister 2/3 = 4/6 reduced to 4/7

2 uterine brothers 1/3 = 2/6 reduced to 2/7

Mother 1/6 = 1/6 reduced to 1/7

7/6 7/7

4. Husband ½ = 3/6 reduced to 3/8

2 full sisters 2/3 = 4/6 reduced to 4/8

Mother 1/6= 1/6 reduced to 1/8

 8/6 8/8

 Chapter IX

Double Inheritance or Vested Interest

It has been pointed out earlier that there are several basis of inheritance (Asbat). An heir may take
inheritance based on double causes (taatud-i-sabab) as in case of marriage relation and another by
double relation or by blood (taatud il karabah).

 A. Double Cases or Relation

For example, the surviving husband is an heir to the property of the deceased wife by reason of
marriage in which case he takes ½ of the wife’s estate. If he is also related to the wife, say as a first
cousin, there being no other heir, he takes the residue or the whole estate as the case maybe.

 B. Double Inheritance or Vested Interest

When a deceased leaves a certain numbers of heirs, and one of them, before distribution takes places,
happens to die leaving heirs, these heirs take both under deceased, if they are heirs to both, or under
one of them if they are only heirs to one.

For example. The surviving heirs are the son, daughter and the brother on the father’s side, the son and
daughter take on the proportion of two to one (2:1) while the brother on the father’s side is excluded,
but if before distribution, the son dies, leaving a sister (meaning the daughter of the decedent) and his
paternal uncle (brother father’s side), the son’s share of 2/3 is divided equally between his sister and
uncle, the sister getting ½ or 2/3 or 1/3 and the remaining 1/3 goes to the uncle. This is a ease of double
inheritance.

 Chapter X

Doctrine of Return

When there are shares and residuaries, the residue of the estate, after deducting the shares of the
sharer’s, is divided among them under the principle of Return (Radd), in proportion to their shares.

Early jurists were the opinion that neither the husband nor wife is entitled to return. However, later
jurists held that when the deceased leaves no other belonging to the categories of shares or residauries
or uterine relation (Ditant Kindred), husband or widow takes by return. But there are those who take the
absence of distant kindred instead the remaining residue of the estate occur to the Bait-ul-mal.

The class of heirs who are entitled to a return are the:

(1) mother, (2) grandmother (3) daughter (4) son’s daughter (5) full sister (6) sister on father’s side (7)
uterine brother, (8) uterine sister. Return may take place to one, two or three classes at the same time,
but not more than three could take by return at one and the same time (obviously due to exhaustion of
the estate).

 Chapter XI

Distant Kindred

(Dhawil Arham)

The general rule is that in the absence of shares and residuaries, the distant kindred succeed as third
class of heirs. Earlier jurists did not allow distant kindreds to succeed and instead allowed the estate of
the decedent to accrue to the Bait-ul-mal in the absence of any issues. There are also writers who have
made the mistake of assuming that the husband or wife excludes uterine relations (distant kindred)
from succeeding in the estate of a deceased relative.

There is no agreement among the authorities on the total number of distant kindreds who could
succeed in the absence of sharers and residuaries.

Ameer Ali (Muhammadan Law) has given four (4) classes of distant kindred namely:
  Offspring of the deceased;

 Roots of the deceased or ascendants;

 Offspring of parents; and

 Offspring of Ascendants, however, removed.

 This enumeration apparently followed the order of preference observed in case of residuaries in
their own right (Asabah bi-nafs).

 A. Classification

The general rule is that all neither relatives of the decedent who are nor residuaries are classed as
uterine relations or distant kindred (Dhawil Arham). There is no general agreement on the total number
of distant kindred, although Muslim jurists have laid down the rules on their order of preference.

 B. Rules on Preference

 According to proximity. Those nearest in degree to the deceased is preferred specially those
who claim through an heir (sharer or residuary).

 If the claimants are equal in degree, the child of a sharer or residuary is preferred. But if the sex
of the ancestors differ but are equal in degree and on strength of the relation of the ancestor,
the uncle gets twice the share of the female heir.

3) The discipline of Abu Hanifa like Imam Yusoph and Imam Muhammad have laid down their own
schools of preference. Abu Yusop considers the sex of the claimant while Imam Muhammad considers
the sex of the roots.

Illustrations:

1. Abu Yusop: sex of the claimant ancestors:

Daughter’s son – 2/3 Daughter’s – 1/3

Claimants:

Daughter’s son’s daughter daughter’s daughter’s

 1/3 son – 2/3

2. Imam Muhammad: sex of the roots ancestors:

Daughter son – 2/3 Daughter’s daughter – 1/3 claimants:

Daughter’ son’s Daughter’s daughter Son – 1/3

Daughter - 2/3
3. In case of descendant of ancestors, those of the full blood are preferred over the half blood relations.
The same rule is true with respect to parents or ancestor and their descendants.

 CHAPTER XII

RULE ON PREGNANCY

(EL Hamel)

 A. Period of Pregnancy

(Mudat-ul-hamel)

There is no unanimous opinion on the exact period of pregnancy with respect to the unborn
(posthumous) child who is expected to heir in the final settlement of the estate of the decedent. One
View Mountains that the child must be born within six (6) month from the death of the decedent. The
better view is to consider the normal period of pregnancy before the child is born. The normal period is
usually nine (9) months.

 B. Essential conditions or requisites

The essential conditions (surut) of the right of an unborn child to be entitled to share in inheritance are:

 The child is born completely alive at the time of birth no matter how brief it is. (Birth
determines civil personality).

 The child is conceived during the subsistence of marriage if paternity is as issue.

 C. Reservation of the share of Posthumous Child

The general rule is that reserved the biggest share in his favor.

The child in the womb fall under three (3) categories, namely:

 Those who totally exclude others;

 Those who partially exclude others; and

 Those who participate with them

 The first step is to ascertain the sex of the posthumous child, if it could be done.

 If his sex can only be determined in the future, hold the distribution of the estate, otherwise
reserve in his favor a bigger share. The exception to this rule is with respect to the mother’s
child and by wila (master-slave relations) where sex is not on issue.

  If it is difficult to determine the sex of the posthumous child, according to the Shafi’i school,
proceed with the division of the estate reserve in his favor the least amount of share either as
male or female heir which ever is the least.
  If the posthumous child will be a total excluder, say a son against other surviving heirs like
brothers or sisters of the deceased or paternal uncles of aunts, the whole estate must be
reserved to comply with such event of birth.

 When only some of the heirs are excluded as when excluded as when there are grand-mother’s
share of one –six (1/6) shall be paid to her and the remainder of the estate shall be reserved.

 When the posthumous child will only be a partial excluder, say when the survivor is a husband
or wife besides him, the smaller of the shares to which the party may be entitled is to be paid to
him/her and the remainder which is bigger is to be reserved.

 If the posthumous child only participants with other heirs and is neither a total or partial
excluder, say when the deceased has left son sand daughter and pregnant widow, reserve the
equivalent share of one son.

 D. Rule in case of an abort child

 If a child is born dead, it cannot inherit, the reason being that is lacks one of the essential
conditions of being completely born alive. Thus an aborted child caused by violence of another
cannot inherit for the same reason. But the fine or compensation arising there from, i.e., diyat
(blood money) accrues to the mother of the child.


E. Death in a Common Calamity Accident;

 If a persons who are among entitled to mutually inherit from each other die in a common
calamity or accident, such as drowning, or when their respective deaths cannot be ascertained
as to who died first, there is no mutual right of succession to their estate develop to their
respective heirs as the case maybe. This rule is agreed among the different Sunni schools.

 CHAPTER XIV –

Missing Persons (Mafkud)

 Mafkud is a person regarding whom it is not known he is dead or alive. According to the Murit, if
a Muslim is captured by an enemy and it is not known whether he is dead or alive, although he
may known as captive in Darul-Harb (abode of war or hostile territory), said person is to be
designated as Mafkud. In the multeka, it is further required that the place where the missing
person is abiding must also be unknown. In the Radd-ul Muktar, even if the place is known but
there is no knowledge whether he is dead or alive, said person is also designated as mafkud.


A. Period of Absence in case of Mafkud
  It must be noted that the designation of a person as an absentee for purposes of placing his
property under administration or for asserting right of a spouse in case of matrimonial relations
is different from the concept Mafkud in inheritance.

 Most authority considers the lapse of 90 years from the date of birth of a person as the longest
time in keeping his property is suspense. The longest period where a person could be
considered alive is the lapse of120 years. This period is agreed among the Muslim jurists.

 B. Missing Person with Respect to his Property (Mafkud-i-Murath)

1. Territory where Mafkud is missing

 Time of Peace

 The first step is to ascertain whether the missing person is dead or alive,
irrespective or whether he is in a Muslim territory (Dar-ul-Islam) or in a non-
Muslim territory.

 Divide his estate after the lapse of a reasonable period of time where a person
can be presumed dead (expected life span), even in the absence of a judicial
declaration.

 Hold the distribution of his estate if he could be ascertained alive.

 If it cannot be ascertained whether he is dead or alive, apply for judicial

declaration presuming his death. The inquiry must be made within one (1) year
from the time he is missing.

2. War Time

under this rule, where thee person is either a combatant or a non-combatant, he is considered mafkud:

 If he is a combatant and his companions returned but he failed to return from

the battle field; or

 If there was a witness that he was in the battlefield; or

 If not, the rule is that the missing person shall be governed by the rule of peace.

 RULE IN THE DISPOSITION

OF HIS PROPERTY:

If the failed to return, the judge upon application may presume such person dead if he failed to return
after one (1) year. The declaration must be one (1) year after the inquiry from the time he was reported
missing.
  Rule in case of Captive
of War (Al Asir)

Ascertain first whether the missing person is dead or alive or whether he died as an apostate (Murtad),
in which case apply Islamic Law.

3. Missing Person is an Heir or Co-heir

 Ascertain first whether he is alive. If he is dead, ascertain whether he has predeceased or dead
after the death of the decedent whom he is supposed to succeed.

 If he is alive, reserve his share until he returns. If he dies subsequently, his heirs inherit his
share.

 There after give shares of his co-heirs which ever is the least appertaining to a male or female.

 If there is a problem among the present heirs in determining which ever is the small share, hold
the share of the present heirs until the status of the missing person is ascertained. If it is
ascertained that the missing person is dead, the present heirs get their shares.

 If the missing person is ascertained dead, his heirs will inherit his share.

 CHAPTER XV

HERMAPHRODITES

(El Khunta)

Hermaphrodites are persons who have both male and female organs or whose sex could not be
definitely ascertained. This is called el khunta el musakal. The general rule is to ascertained the
preponderance to whether he is a male or a female. If there is difficulty of ascertaining his real sex,
divide the property of the decedent by first considering him as male and latter as female. Whichever will
be the least share will be the share given to the hermaphrodite. If his sex could be determined at a
future distribution, otherwise, reserve him a bigger share.

The exceptions to this rule are heirs who fall under the category of a Mother’s child (uterine brother or
sister) or a master inheriting from his freed slave. This also includes the grandfather, mother, husband
and wife because their shares fixed and the difference of sex of the co-heir who is an hermaphrodite
does not effect their allotted fixed shares.

Illustration:

1) Problem:

(Surv) : Wife Mother 2 son’s daughter khunta (son)

Ans : 1/8 1/6 rem residue rem residue

Shares : 3 + 4 = 7 + (17) = 24

Cor : 12 + 16 = 28 (17) + (17) + 34 = 96

RP = 24 - 7=17

Total shares : 96 ; 96 – 96 = 0

Root of correction : 24 x 4 = 96

96 – 28 = 68 ; 68 / 2 = 34 ; 34 / 2 = 17

2) Problem:

(Surv) : Wife Mother 2 SD khunta (daug)

Ans : 1/8 1/6 1/6 1/2

Shares : 3 + 4 + 4 + 12 = 23

Root of Problem = 24

- 23

 NOTE: The remainder of one (1) unit will returned back to the shares under the doctrine of
return.

 CHAPTER XVI

Illegitimate Child

(WALAD-U-ZINA

AND

WALAD-U-LIAN)

There are two kinds of illegitimate children under Islamic law, namely:

 Walad-u-Zina – child of fornication

 Walad-u-lian – child of imprecation (Disavowed child)

 CHAPTER XVII

Waiver of shares

(Takaruz)
  The right of inherit is vested to the heir at the time of the death of the decedent. It is an
inchoate or conditional right it only accrues when the essential requisites are present (surut). An
heir ever before distributions of the estate may transfer his own share and pass title, to a
bonafide transferred for value, despite the fact that debts may be due from the estate of the
decedent.

 The heirs are, however, liable only to the extent of the value of the decedent’s estate. Creditors
have right to demand payment of what is due to them in the order of their preference.

 CHAPTER XVIII

Wills/Request

(Wasaya)
The form of wills in Islamic law is not material. Willa may be made orally (nuncupative wills) or in
writing. It is not, however, recommended that wills and bequests be written down because of it the
difficulty in proving oral wills.

A Muslim’s testamentary power is limited only one-third of his property, and any excess to will have no
effect unless the legal heirs agree to it. Leaving a bequest to any legal heir is also disallowed and it can
be only legal effect if the co-heirs consent to it.