Shari’ah Bar

2022
Pre-Bar Review
Succession, Wills/Adjudication and
Settlement of Estate
February 24 and 26, 2022

Ayshia Fernando Kunting

Outline of Discussion
I. A few reminders
II. The subject, ”Succession, Wills, and
Adjudication of Estate”
III. The Bar Syllabus
IV. Review of Topics
V. Sample Bar Questions & Suggested Answers
VI. Closing
I. A Few Reminders
II. The Subject
III. The Bar Syllabus
I. Course Description

This course deals with the study of the science of fixing the
shares of inheritance (ilm-ul-Faraid), its theories and practical
application: wills and bequest (wasiya); principles, requisites,
conditions and distinction between wasiya, waqf and hibah
under Islamic Law (Shari’ah); adjudication of estates; and the
proper interpretation of Book Three of Presidential Decree No.
1083 based on Islamic Law and Jurisprudence.
II. Broad Topics
A. Introduction

1.1 Scope and Coverage of the Course

1.2 Definition, Concepts and Principles
1.3 Brief History and Development
1.4 Goals and Objective of the Law
B. Science of Inheritance
Chapter 1 - Rights attached to the Estate of Decedent (Al Hukuk el Muta’alika bi
Tarikah)
Chapter 2 - Essential Elements and Requisites of the Law
Chapter 3 - Basis of Inheritance (Asbab)
Chapter 4 - Disqualifications and Impediments (Mawani-ul irth)
Chapter 5 - Heirs and their Classification
Chapter 6 - Rules on Exclusion
Chapter 7 - Computation of Shares of Inheritance
Chapter 8 - Distribution of Residue (Al irth bi taasib)
Chapter 9 - Special Problems
Chapter 10 - Doctrine of Increase (Aul)
Chapter 11 - Doctrine of Return (Radd)
B. Science of Inheritance

Chapter 12 - Double Causes of Inheritance or Vested Interests

Chapter 13 - Distant Kindred (Dhawil Arham)
Chapter 14 - Rules on Pregnancy (il Hamil)
Chapter 15 - Missing Persons (Mafkud)
Chapter 16 - Hermaphrodites (Mirath il Khunta)
Chapter 17 - Disavowed Child/Child of Fornication (Walad-un-Zina and Walad-
un-Li’an)
Chapter 18 - Waiver of Shares (Takaruz)
Chapter 19 - Transmission (Munasakhah)
Chapter 20 - Wills and Requests (Wasiya)
Chapter 21 - Endowments/Gifts (Waqf/Hibah)
C. Adjudication of Estates
D. Issues and Problems
E. Recapitulation, Review and Evaluation
IV. Review of Topics
III. Lecture Online
A. Introduction
1.1 Scope and Coverage of the Course
a. Book Three – Succession, Arts. 89-136, P.D. 1083
b. Overview and Brief comments
1.2 Definition, Concepts and Principles
a. Ilmul Mirath (Science of Inheritance)
b. Ilmul Faraid (Science of Fixing Shares of Inheritance)
c. Comparison of Mirath and Faraid
d. Comments on Arts. 89, 90 and 92 of the CMPL
1.3 Brief History and Development
a. Pre-Islamic Period
b. Advent of Islam
c. Works of Jurists
1.4 Goals and Objective of the Law
a. Importance of the Study of the Science of Inheritance
b. Sayings of the Prophet (PBUH) on Faraidh
c. Sources of the Science of Inheritance
B. Science of Inheritance

Chapter 1 - Rights attached to the Estate of Decedent (Al Hukuk el Muta’alika bi Tarikah)

A. Definition of the estate of decedent (Taarif al Tarikah)

1. View of the Shafi’i School
2. Five (5) charges to the estate
a. Specific rights attached to the estate of the decedent (Al Hirkikr al Ainijah)
b. Rights of decedent in his estate (Hukuk el maith-min al Tarikah)
c. All Kinds of debts (Aduyan al Mutlaqah)
i. Shafi’i and Maliki view and other schools
ii. Debts incurred in Illness and Debts incurred in good health
d. Rights of legatees (Hak el Mussahalahu)
e. Rights of Heirs (Hak el Waratha)
3. Compare with Art. 135; comments
a. Distinguish between gross Estate (Tarika) and net disposable estate (Mirath)
b. Comments on Art. 92
Chapter 2 - Essential Elements and Requisites of the Law

A. Essential Elements of Inheritance (Arkanul Mirath)

1. Decedent (Al Mirath)
2. Heirs (Al Warith)
3. Estate (Al Mauruth)
a. comments on Art. 91
B. Essential Requisites of Inheritance (Shurot)
1. Death of Decedent (Maut al Murath)
2. Survival of Heirs (Hayah al Warith)
3. Ascertainment of the basis of inheritance (al ilin bi jihati al irth)
a. Distinction between ruk’n and shurot (sing. Sort)
Chapter 3 - Basis of Inheritance (Asbab)

A. Marriage (Nikah)
B. Kinship/Blood Relation (Nasab/Karaba)
C. Clientage/Special Cause (Wala)
D. Al-Islam (Baitul Mal)
1. Views of Shafi’i and Hanafi
2. Heir by acknowledgement
3. Universal legatee
4. Arts. 99 (d) and 100
Chapter 4 - Disqualifications and Impediments (Mawani-ul irth)

A. Slavery (Riq)
B. Murder/Homicide (Qat’l)
C. Differences in Religion (Ikhtilafut-din)
1. Comparison of Arts. 93 and 107
2. Views of jurists
Chapter 5 - Heirs and their Classification
A. Classification of Heirs
1. Sharers (ashabul furud)
2. Residuaries (Asabah bi-Sabab) or Agnates
a. By blood relation (Asabahtun-nasab)
i. residuary by his own right (Asabah bi nafs)
ii. residuary through another (Asabah bil ghair)
iii. residuary with another (Asabah ma-al ghair)
b. By Cause (Asabah bi sababia)
i. Discuss Art. 99 (a) and (b)
ii. Comment on Art. 99 (a) and (b)
B. Classification of Inheritance
1. Shares (Furud)
2. Shares plus residue (Al fordh watha’asib)
3. Residue (Ta’asib)
a. Discuss Art. 110-122
b. Notes on defects of the English Statutory text – Art. 118, 120, 121 (2) and 122 (2)
c. Refer to Holy Qur’an, Sura IV, Verses 11, 12, and 176.
C. Status of Residuaries (Ahibal asab-il furud)
- see Arts. 124-128
Chapter 6 - Rules on Exclusion (Hujub)

A. Total Exclusion (Hujub Herman)

B. Partial Exclusion (hujub Nuksan)
1. Discuss Art. 123
2. Comment on the inadequacy of statutory Provisions
 SOME RULES ON EXCLUSION
1. No ascendant sharer/residuary can exclude descendant sharer/residuary & vice-versa.
2. No female heir can exclude mae=le heri except the UB by D & SD.
3. Female ascendants cannot exclude male heir UB/US.
4. D & SD do not exclude FS & CS because the latter become RTA.
5. When the maximum female share of 2/3 is exhausted, the SD or CS is excluded.
6. The GF does not exclude the FB/ CB or FS/CS according to the Jamhur school of thought.
7. The son's son excludes the son's daughter who is more remote in degree to the descendant except if the
son's son is a lucky brother, in which case the son's daughter however distant in degree is made an RAR.
8. The (RTA) full sister excludes CS or CB & those residuaries whom the latter can exclude likewise the (RTA) CS
excludes CBS and those whom the latter can exclude because as RTA's, the sisters are like their brothers in terms
of strength.
Case

A wife died leaving a husband, foster mother, adopted son, uterine

paternal uncle, full paternal aunt, 2 uterine brothers’ sons, and 3
consanguine brother’s daughters. Assign the shares to those entitled to
inherit.
Chapter 7 - Computation of Shares of Inheritance

A. Roots of the problem (Usul Al Masail)

B. Method/Solution of computing Shares of Inheritance (kayfujata)
C. Correction/ Adjustment of Shares (Tas’he)
Chapter 8 - Distribution of Residue (Al irth bi taasib)

A. Examples and Illustrations

DAY 2
Chapter 9 - Special Problems

A. Stone Problem
B. Maliki Problem
C. Omar problem
D. Others
Chapter 10- Doctrine of Increase (Aul)

A. See Article 129

1. Examples and illustrations
Chapter 11- Doctrine of Return (Radd)

A. See Article 30
1. Examples and illustrations
B. Shafi’i and Hanafi views
Chapter 12- Double Causes of Inheritance or Vested Interests

1. Examples and illustrations

Chapter 13- Distant Kindred (Dhawil Arham) Article 131. Relatives included. Distant
kindred includes the following :
A. Classification
(a) The daughter's children and the children
B. Rules on Preference
of the son's daughter and their
1. Articles 131-132
descendants;
2. Opinions of Jurists (b) The excluded grandfather and the
excluded grandmother;
Article 132. Extent and distribution of shares. In default (c) The sister's children, the brother's
of all sharers and residuaries, the distant kindred shall daughters, the sons of the uterine
inherit the entire hereditary estate, the same to be brother, and their descendants; and
distributed among them in accordance with Articles 123 (d) The paternal aunts, the uterine uncles
and 128. and the maternal aunts and uncles.
Chapter 14- Rules on Pregnancy (il Hamil)

A. Period of Pregnancy (Mudat-ul Hamel)

B. Codification of Right to inherit of unborn child (Mayastaratu il Hamel)
1. Examples and illustrations
2. Refer to Art.97 and compare with Arts.57 and 2;and see also Art. 59.

Article 97. Succession by conceived

child. A child conceived at the time of
the death of the decedent shall be
considered an heir provided it be
born later in accordance with Article
10; its corresponding share shall be
reserved before the estate is
distributed.
Article 10. Personality, how acquired. Birth determines
personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided it be
born alive, however, briefly, at the time it is completely
delivered from the mother's womb.
Chapter 14- Rules on Pregnancy (il Hamil)

A. Period of Pregnancy (Mudat-ul Hamel)

B. Codification of Right to inherit of unborn child (Mayastaratu il Hamel)
1. Examples and illustrations
2. Refer to Art.97 and compare with Arts.57 and 2;and see also Art. 59.

Article 57. Period. Article 59. Legitimate children.

(1) Every wife shall be obliged to observe (1) Children conceived in lawful wedlock shall be
'idda as follows: presumed to be legitimate. Whoever claims
(a) In case of dissolution of marriage by death, four months and illegitimacy of or impugns such filiation must prove
ten days counted from the death of her husband;
(b) In case of termination of marriage by divorce, for three his allegation.
monthly courses; or (2) Children born after six months following the
(c) In case of a pregnant women, for a consummation of marriage or with two years after the
period extending until her delivery. dissolution of the marriage shall be presumed to be
(2) Should the husband die while the wife is legitimate. Against this presumption no evidence
observing 'idda for divorce, another 'idda shall be admitted other than that of the physical
for death shall be observed in accordance impossibility of access between the parents at or
with paragraph 1(a). about the time of the conception of the child.
Effects of conceived child on inheritance:
a. absolute exclusion of one or more of the other heirs (excludes all other heirs)
b. partial exclusion of one or more of the other heirs
c. a mere addition to an existing class of heirs

What should be done while awaiting the birth (to determine gender)?
• Hanafi, Shafi’i, and Hanbali Fiqh allow existing heirs to be given their shares after
calculating the inclusion of the unborn child
• According to Maliki Fiqh, the distribution of whole estate is suspended until the
unborn child is born
Case:

Wife
-----
Son
Daughter
-----
Full brother
Full brother’s son
Full paternal uncle

*when child stillborn

*when born completely alive then immediately died
Chapter 15- Missing Persons (Mafkud)

A. Views of Muslim jurists on missing persons

B. Rules with respect to
1. a missing person who is a decedent
2. a missing person who is an heir or
co-heir
C. Rules
1. in time of peace
2. in time of war

See: Art. 98 and correlate with Arts. 11 and 12 Comments Article 11. Extinction of personality.
(1) Civil personality is extinguished by death. The effect of death upon the rights and
and Interpretation of the statutory provisions. obligations of a deceased person is determined by this Code, by contract, and by
will.
Article 98. Succession by absentee. The share of (2) After an absence of seven years, it being unknown whether or
an heir who is missing or otherwise absent at the not the absentee still lives, he shall be presumed dead.
time of the death of the decedent shall be reserved: Article 12. Simultaneous death. If, as between two or more persons who
(a) Until he reappears and claims it; are called to succeed each other, there is a doubt as to which of them
died first, whoever alleges the death of one prior to the other shall prove
(b) Until he is proven dead; or the same; in the absence of such proof, it is presumed that they died at
(c) Until the lapse of ten years after which he the same time and there shall be no transmission of rights from one to
shall be resumed dead by decree of the the other. However, the successional rights of their respective heirs shall
court. not be affected.
Chapter 16- Hermaphrodites (Mirath il Khunta)

A. Discussion of the rules and illustrations

B. Views of Muslim Jurists
Chapter 17- Disavowed Child/Child of Fornication (Walad-un-Zina and Walad-un-Li’an)

A. Discussion of the rules and views of the scholars

B. See Arts. 95 and 96; also Arts. 57 and 59

Article 95. Succession by

illegitimate child. A child Article 96. Succession between divorced persons.
who was the cause of the (1) The husband who divorces his wife shall have mutual
mother's having been rights of inheritance with her while she is observing her
divorced by li'an shall have 'idda. After the expiration of the 'idda, there shall be no
mutual rights of succession mutual rights of succession between them.
only with the mother and (2) The husband who, while in a condition of death-illness,
her relatives. divorces his wife shall not inherit from her, but she shall
have the right to succeed him even after the expiration
of her 'idda.
Chapter 17- Disavowed Child/Child of Fornication (Walad-un-Zina and Walad-un-Li’an)

A. Discussion of the rules and views of the scholars

B. See Arts. 95 and 96; also Arts. 57 and 59 Article 59. Legitimate children.
(1) Children conceived in lawful wedlock
Article 57. Period. shall be presumed to be legitimate.
(1) Every wife shall be obliged to observe 'idda Whoever claims illegitimacy of or
as follows: impugns such filiation must prove his
(a) In case of dissolution of marriage by death, allegation.
four months and ten days counted from the (2) Children born after six months following
death of her husband; the consummation of marriage or with
(b) In case of termination of marriage by two years after the dissolution of the
divorce, for three monthly courses; or marriage shall be presumed to be
(c) In case of a pregnant women, for a period legitimate. Against this presumption no
extending until her delivery. evidence shall be admitted other than
(2) Should the husband die while the wife is that of the physical impossibility of access
observing 'idda for divorce, another 'idda between the parents at or about the time
for death shall be observed in accordance of the conception of the child.
with paragraph 1(a).
Chapter 18- Waiver of Shares (Takaruz)

A. Discussion and illustrations

B. Views of Muslim Jurists
 Case B:
Chapter 19- Transmission (Munasakhah) When heirs of the 1st decedent
are themselves heirs of the 2nd
A. Definition
decedent; but relationships vary
B. Kinds of Transmission
C. Examples
X1 died leaving a wife and 4 sons
1 of the sons died = X2
Case A:
When heirs of the 1st
decedent are themselves
heirs of the 2nd decedent

X1 died leaving 4 sons

1 of the sons died = X2
Chapter 19- Transmission (Munasakhah)

Case C: Merger
When heirs of the 1st decedent
are not the heirs of the 2nd
decedent; or some inherit from
both. Merger solution.

X1 died leaving his mother, 3

consanguine brothers, and a
consanguine sister. But before
the distribution of inheritance,
one consanguine brother died
(X2) leaving behind his own 4
sons and 2 daughters
 Chapter 20- Wills and Requests (Wasiya)

A. Definition
B. Essential Elements, requisites and formalities
C. See Arts. 101-109
D. Views of jurists

Article 101. Will defined. A will (wasiya) Article 102. Formalities.

is a declaration whereby a person is (1) The making of a will is strictly a personal act; it
permitted, with the formalities cannot be left in whole or in part to the discretion of a
prescribed by law, to control the third person or accomplished through the
disposition after his death of not more instrumentality of an agent.
than one-third of his estate, if there are (2) A will may be declared orally or in writing in a manner
heirs, or the whole of it, if there are no that shows clearly the intention of the testator to
heirs or distant kindred. execute it in the presence of a least two competent,
credible and disinterested witnesses.
Chapter 21- Endowments/ Gifts (Waqf/Hibah)

A. Definition, requisites and conditions

B. Relevance to Mirath and wasiya Article 134. Governing school of law.
(1) In every petition for probate of will or for
C. Adjudication of Estates
the settlement of the estate of a
1. Arts. 133-136 descendent, all matters relating to the
2. Refer to Chapter 1 (Charges to the appointment of administrator, powers
estate of decedent) and duties of administrator or executor,
the court shall take into consideration
the school of law (madhhab) of the
Article 133. Administration. The decedent.
administration of the estate of a (2) If the decedent's madhhab is not known,
decedent shall, for purposes of the Shafi'i school of law may be given
settlement, vest at the time of his death preference together with the special
in the executor appointed in the will or, rules of procedure adopted pursuant to
in the absence thereof, in his heir or this Code.
administrator to whom the court has
granted letters of administration.
Chapter 21- Endowments/ Gifts (Waqf/Hibah)

A. Definition, requisites and conditions

B. Relevance to Mirath and wasiya Article 135. Order of preference of claims. The
C. Adjudication of Estates estate of a decedent shall be applied to claims
1. Arts. 133-136 and charges in the following order:
2. Refer to Chapter 1 (Charges to the
estate of decedent) (a) unpaid taxes;
(b) reasonable funeral expenses;
(c) the expenses for probate, administration and
other judicial expenses;
Article 136. Liability of heirs. The liability (d) the debts of the decedent;
of the heirs of a decedent for the payment (e) the legacies to the extent of the disposable
of the matter's debts shall not exceed the one-third;
hereditary estate. Each heir shall be liable (f) the distribution of shares among heirs; and
only for the payment of the decedent's (g) unpaid dower.
debt in proportion to his share.
D. Issues and Problems

1. Conflict of Schools of Thought

2. Conflict of Laws
3. Issue on retroactivity of Book III of P.D. No. 1083
4. Suppletory application of Philippine laws
E. Recapitulation, Review and Evaluation
V. Sample Bar Questions and
Suggested Answers
VI. Closing