ISLAMIC LAW ON THE LAST WILL & TESTAMENT OF A MUSLIM
ISLAMIC PRINCIPLES RELATING TO THE ISLAMIC LAW OF SUCCESSION AND INHERITANCE.
The Holy Qur’aan has fixed the shares of each individual. “From what is left by parents and those nearest related, there is a share for men and a share for women, whether the property is small or large, a determinate share.” (Qur’aan: Surah 4, Verse 7). The criteria for determining the heirs and their proportionate shares are based on the law of “proximity” to the deceased. This proximity is determined by Almighty Allah, and is not left to the discretion of man. These cannot be altered or changed by man. The shares of the heirs as determined by the Qur’aan are compulsory.
“Almighty Allah directs you, as regards your children’s (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance, if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children, if no children, and the parents are the (only) heirs, the mother has a third, if the deceased left brothers ( or sisters ) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. You know not whether your parents or your children are nearest to you in benefit. These are settled proportions ordained, by Almighty Allah, and Allah is All Knowing, All Wise. (Qur’aan: Surah 4, verse 11)
In what your wives leave, your share is half, if they leave no child, but if they leave a child you get a fourth, after payment of legacies and debts. In what you leave their share is a fourth, if you leave no child, but if you leave a child, they get an eighth, after payment of legacies and debts. If the man or woman whose Inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth, but if more than two, they share in a third, after payment of legacies and debts, so that no loss is caused (to any one).Thus it is ordained by Almighty Allah, and Allah is All Knowing, Most Forbearing”. (Qur’aan: Surah 4, Verses 11 and 12).
Almighty Allah has accordingly specified the shares of beneficiaries based on the law of proximity of relationship and not on the material needs of the beneficiaries. Even in contemporary law the “Freedom of Testation” allows an individual to beneficiate whomsoever he wishes. The Islamic Law of Succession and Inheritance guarantees the right of both women and children to inherit from the estate.
CONDITIONS FOR THE VALIDITY OF WILLS
In order for a will to be in accordance with legislation of South Africa, certain conditions of the Will’s Act 7 of 1953 as amended should be complied with;
1. The will should be in writing.
2. The will must be signed at the end by the Testator/Testatrix
3. The will should also be attested and signed by two witnesses, who must be of at least 14 years of age, this should be done in the presence of the Testator/Testatrix and each other.
4. If the will consists of more than one page, the other pages should be initialled by the Testator/Testatrix and the witnesses.
5. A Testator/Testatrix must be at least 16 years of age.
6. No beneficiary may sign as a witness.
PAYMENTS OF DEBTS AND RELIGIOUS OBLIGATIONS.
Prophet Muhammed (May peace be upon him) has said “It does not befit a believer who is (obliged) to make a bequest to spend (even) two nights, without making a record thereof” (Bukhari – Muslim).
A Muslim is obliged to keep a record of:
1. Creditors – To those whom the deceased owes money.
2. Amaanah – Items entrusted to him/her for safe keeping.
3. Unfulfilled religious obligations.
4. Debtors – Those who are indebted to the deceased.
Note: This document has to be updated on a regular basis.
LEGACIES
A testator/testatrix also has the option of bequeathing a maximum of one third of his estate to persons who are not his heirs. However, if a bequest is made in favour of an heir, it will be subject to the approval of the remaining heirs (those who have attained puberty as the consent of the minor heirs are invalid). Marriages in accordance with South African law has to be registered by an Ante-nuptial contract excluding the Accrual System. Marriages registered in Community of Property or the Ante-nuptial contract including the accrual system is not consistent with the Islamic Law of Succession and Inheritance and should be changed so that the estate can be distributed in accordance with the Islamic Law of Succession and Inheritance.
THE CONSEQUENCES OF AN INCORRECT WILL
A. Prophet Muhammed (may peace be upon him) has said “A man or woman may devoutly obey Almighty Allah for sixty years, yet when death approaches them, they act wrongfully (when making) their will, as a result, the fire of Hell becomes binding for them” (Ahmad).
B. If a will is not made, then the estate of the deceased will devolve according to the Interstate Succession Act 81 of 1987 (South Africa) which provisions are contrary to the Islamic Law of succession and Inheritance.
GIFTS DURING LIFETIME
A parent may for a valid reason (eg. Service to parents) during his lifetime give a particular asset to one of his children, provided that the purpose of the gift is not to cause harm to the remaining heirs. Observing equality in parental gifts to children is preferable but not binding.
ADMINISTRATION OF THE ESTATE
The estate of the deceased must be administered in the following order:
1. Payment of funeral expenses.
2. Payment of debts (Creditors should be paid from the Estate of the deceased)
3. Payment of legacies and bequests (Religious obligations or other up to a maximum of one third of the estate.
4. Finally the remainder of the Estate to devolve among the heirs in accordance with the Islamic Law of Succession and Inheritance.
THE MURTAD (RENEGADE)
A Muslim who renounces Islam is termed as a murtad/murtaddah (renegade). A person who renounces Islam, after having been a Muslim is a murtad/murtaddah (renegade). A murtad (male renegade) and murtaddah (female renegade) are deprived of inheritance. The estate of renegades (both male and female) will be inherited by their Muslim heirs. That portion of a murtad’s estate which he had acquired while he was a Muslim will be inherited by his heirs and the portion which he acquired during his state of renunciation will be handed to the Islamic State Treasury.
If a female becomes a renegade (murtaddah) her entire estate will be inherited by her Muslim heirs whether she had acquired the assets/wealth during her state of Islam or state
of renunciation. The estate of the murtad (male renegade) and murtaddah (female renegade) will be taken by his/her heirs when the following circumstances occur:
a. He/She renounces Islam
b. He/She dies or is put to death.
c. The execution of the male renegade or the female renegade in terms of Islamic Law.
d. When he/she seeks asylum in Darul Harb (Non Islamic State) and the Islamic court issues a decree confirming this.
DIFFERENCE OF RELIGION
1. There are no ties of inheritance between Muslims and non Muslims.
2. A Muslim does not inherit from a non Muslim and a non Muslim does not inherit from a Muslim.
3. If a Muslim has no Muslim survivors and has not made a bequest for the disposal of his estate, all his assets will be given to the Islamic State Treasury.
ANNUITIES AND LIFE INSURANCE POLICIES
1. Monies from the Pension/Provident funds are to be given to the beneficiaries whom the deceased has nominated during his lifetime and is not subject to the rules of inheritance.
2. The amount of premiums paid towards the life insurance policies will form part of the estate. The remainder must be given in charity without the intention of receiving reward as it represents a compulsory distribution of an unlawful gain.
BAITUL MAAL (ISLAMIC TREASURY)
When the deceased has absolutely no Islamic heirs of any category whatsoever, the estate will be given to the Islamic State Treasury. Should there be no Islamic State Treasury, then the entire estate should be distributed to the poor and needy.
THE HEIRS
There are 3 groups of heirs:
1. THE QUR’ANIC HEIRS
Those whose shares have been stipulated in the Qur’aan.
2. THE RESIDUARIES
Those heirs who will receive whatever remains of the estate after the Qur’anic heirs have received their stipulated shares and in the absence of the Qur’anic heirs they will receive the entire estate.
3. THE UTERINE HEIRS
Those who will receive their shares if no Qur’anic heirs or Residuaries exists.
OBLIGATIONS AND CONDITIONS OF THE WILL
1. One is not allowed to disinherit a legitimate beneficiary.
2. Adopted children are not beneficiaries. However a bequest (not exceeding 1/3 of the estate) can be made for the adopted child/children.
3. Children born out of wedlock do not inherit from the father.
4. Spouses from a Nikah (marriage) which is null and void do not inherit.
5. A murderer (who is an heir of the deceased) and has committed the crime of murdering the deceased do not inherit.
6. Provisions must be made for an unborn foetus. The share of the unborn foetus must be reserved until it is born.
MUNASAKAH
The transference of the shares of inheritance from the estate of the first deceased to the heirs of the subsequent deceased, who were the heirs of the first deceased is termed as (munasakah).
Sometimes the estate of the deceased is not expeditiously wound up. It is essential to finalize the distribution as soon as possible, so that the heirs obtain their shares. It is not permissible to infringe on the rights of the heirs and cause them difficulties. Numerous people are guilty of such inordinate delay in finalizing the affairs of the deceased that sometimes some heirs die before they receive their shares. The shares of the deceased heirs have to be transferred to their respective heirs.
Prepared by: The Late Moulana Abdur Rahman Khan
Kindly contact our offices for your Last Will & Testament.
The Holy Qur’aan has fixed the shares of each individual. “From what is left by parents and those nearest related, there is a share for men and a share for women, whether the property is small or large, a determinate share.” (Qur’aan: Surah 4, Verse 7). The criteria for determining the heirs and their proportionate shares are based on the law of “proximity” to the deceased. This proximity is determined by Almighty Allah, and is not left to the discretion of man. These cannot be altered or changed by man. The shares of the heirs as determined by the Qur’aan are compulsory.
“Almighty Allah directs you, as regards your children’s (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance, if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children, if no children, and the parents are the (only) heirs, the mother has a third, if the deceased left brothers ( or sisters ) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. You know not whether your parents or your children are nearest to you in benefit. These are settled proportions ordained, by Almighty Allah, and Allah is All Knowing, All Wise. (Qur’aan: Surah 4, verse 11)
In what your wives leave, your share is half, if they leave no child, but if they leave a child you get a fourth, after payment of legacies and debts. In what you leave their share is a fourth, if you leave no child, but if you leave a child, they get an eighth, after payment of legacies and debts. If the man or woman whose Inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth, but if more than two, they share in a third, after payment of legacies and debts, so that no loss is caused (to any one).Thus it is ordained by Almighty Allah, and Allah is All Knowing, Most Forbearing”. (Qur’aan: Surah 4, Verses 11 and 12).
Almighty Allah has accordingly specified the shares of beneficiaries based on the law of proximity of relationship and not on the material needs of the beneficiaries. Even in contemporary law the “Freedom of Testation” allows an individual to beneficiate whomsoever he wishes. The Islamic Law of Succession and Inheritance guarantees the right of both women and children to inherit from the estate.
CONDITIONS FOR THE VALIDITY OF WILLS
In order for a will to be in accordance with legislation of South Africa, certain conditions of the Will’s Act 7 of 1953 as amended should be complied with;
1. The will should be in writing.
2. The will must be signed at the end by the Testator/Testatrix
3. The will should also be attested and signed by two witnesses, who must be of at least 14 years of age, this should be done in the presence of the Testator/Testatrix and each other.
4. If the will consists of more than one page, the other pages should be initialled by the Testator/Testatrix and the witnesses.
5. A Testator/Testatrix must be at least 16 years of age.
6. No beneficiary may sign as a witness.
PAYMENTS OF DEBTS AND RELIGIOUS OBLIGATIONS.
Prophet Muhammed (May peace be upon him) has said “It does not befit a believer who is (obliged) to make a bequest to spend (even) two nights, without making a record thereof” (Bukhari – Muslim).
A Muslim is obliged to keep a record of:
1. Creditors – To those whom the deceased owes money.
2. Amaanah – Items entrusted to him/her for safe keeping.
3. Unfulfilled religious obligations.
4. Debtors – Those who are indebted to the deceased.
Note: This document has to be updated on a regular basis.
LEGACIES
A testator/testatrix also has the option of bequeathing a maximum of one third of his estate to persons who are not his heirs. However, if a bequest is made in favour of an heir, it will be subject to the approval of the remaining heirs (those who have attained puberty as the consent of the minor heirs are invalid). Marriages in accordance with South African law has to be registered by an Ante-nuptial contract excluding the Accrual System. Marriages registered in Community of Property or the Ante-nuptial contract including the accrual system is not consistent with the Islamic Law of Succession and Inheritance and should be changed so that the estate can be distributed in accordance with the Islamic Law of Succession and Inheritance.
THE CONSEQUENCES OF AN INCORRECT WILL
A. Prophet Muhammed (may peace be upon him) has said “A man or woman may devoutly obey Almighty Allah for sixty years, yet when death approaches them, they act wrongfully (when making) their will, as a result, the fire of Hell becomes binding for them” (Ahmad).
B. If a will is not made, then the estate of the deceased will devolve according to the Interstate Succession Act 81 of 1987 (South Africa) which provisions are contrary to the Islamic Law of succession and Inheritance.
GIFTS DURING LIFETIME
A parent may for a valid reason (eg. Service to parents) during his lifetime give a particular asset to one of his children, provided that the purpose of the gift is not to cause harm to the remaining heirs. Observing equality in parental gifts to children is preferable but not binding.
ADMINISTRATION OF THE ESTATE
The estate of the deceased must be administered in the following order:
1. Payment of funeral expenses.
2. Payment of debts (Creditors should be paid from the Estate of the deceased)
3. Payment of legacies and bequests (Religious obligations or other up to a maximum of one third of the estate.
4. Finally the remainder of the Estate to devolve among the heirs in accordance with the Islamic Law of Succession and Inheritance.
THE MURTAD (RENEGADE)
A Muslim who renounces Islam is termed as a murtad/murtaddah (renegade). A person who renounces Islam, after having been a Muslim is a murtad/murtaddah (renegade). A murtad (male renegade) and murtaddah (female renegade) are deprived of inheritance. The estate of renegades (both male and female) will be inherited by their Muslim heirs. That portion of a murtad’s estate which he had acquired while he was a Muslim will be inherited by his heirs and the portion which he acquired during his state of renunciation will be handed to the Islamic State Treasury.
If a female becomes a renegade (murtaddah) her entire estate will be inherited by her Muslim heirs whether she had acquired the assets/wealth during her state of Islam or state
of renunciation. The estate of the murtad (male renegade) and murtaddah (female renegade) will be taken by his/her heirs when the following circumstances occur:
a. He/She renounces Islam
b. He/She dies or is put to death.
c. The execution of the male renegade or the female renegade in terms of Islamic Law.
d. When he/she seeks asylum in Darul Harb (Non Islamic State) and the Islamic court issues a decree confirming this.
DIFFERENCE OF RELIGION
1. There are no ties of inheritance between Muslims and non Muslims.
2. A Muslim does not inherit from a non Muslim and a non Muslim does not inherit from a Muslim.
3. If a Muslim has no Muslim survivors and has not made a bequest for the disposal of his estate, all his assets will be given to the Islamic State Treasury.
ANNUITIES AND LIFE INSURANCE POLICIES
1. Monies from the Pension/Provident funds are to be given to the beneficiaries whom the deceased has nominated during his lifetime and is not subject to the rules of inheritance.
2. The amount of premiums paid towards the life insurance policies will form part of the estate. The remainder must be given in charity without the intention of receiving reward as it represents a compulsory distribution of an unlawful gain.
BAITUL MAAL (ISLAMIC TREASURY)
When the deceased has absolutely no Islamic heirs of any category whatsoever, the estate will be given to the Islamic State Treasury. Should there be no Islamic State Treasury, then the entire estate should be distributed to the poor and needy.
THE HEIRS
There are 3 groups of heirs:
1. THE QUR’ANIC HEIRS
Those whose shares have been stipulated in the Qur’aan.
2. THE RESIDUARIES
Those heirs who will receive whatever remains of the estate after the Qur’anic heirs have received their stipulated shares and in the absence of the Qur’anic heirs they will receive the entire estate.
3. THE UTERINE HEIRS
Those who will receive their shares if no Qur’anic heirs or Residuaries exists.
OBLIGATIONS AND CONDITIONS OF THE WILL
1. One is not allowed to disinherit a legitimate beneficiary.
2. Adopted children are not beneficiaries. However a bequest (not exceeding 1/3 of the estate) can be made for the adopted child/children.
3. Children born out of wedlock do not inherit from the father.
4. Spouses from a Nikah (marriage) which is null and void do not inherit.
5. A murderer (who is an heir of the deceased) and has committed the crime of murdering the deceased do not inherit.
6. Provisions must be made for an unborn foetus. The share of the unborn foetus must be reserved until it is born.
MUNASAKAH
The transference of the shares of inheritance from the estate of the first deceased to the heirs of the subsequent deceased, who were the heirs of the first deceased is termed as (munasakah).
Sometimes the estate of the deceased is not expeditiously wound up. It is essential to finalize the distribution as soon as possible, so that the heirs obtain their shares. It is not permissible to infringe on the rights of the heirs and cause them difficulties. Numerous people are guilty of such inordinate delay in finalizing the affairs of the deceased that sometimes some heirs die before they receive their shares. The shares of the deceased heirs have to be transferred to their respective heirs.
Prepared by: The Late Moulana Abdur Rahman Khan
Kindly contact our offices for your Last Will & Testament.
