ISLAMIC LAW OF SUCCESSION

1. General principles on Islamic succession

a. Succession
 Mirath or irth or faraid

b.Faraid – will prevail over wassiyyah

 Denotes the xed shares of inheritance allocated to the legal heirs by the Quran and
Sunnah, right guaranteed by Allah

c. Legal heir (warith)

 Relaves upon whom property devolves aer the decease of its
owner by operaon of law

d. Estate (tarikah/rkah)
 Comprises of all property that the deceased has owned, whether
his ownership is of the substance or corpus of a thing,
moveable and immoveable, realty or personally

2. Importance of succession
a. Prophet: Law of inheritance is said to constute half the sum of ilm
(knowledge)

3. Succession during the pre-islamic period

a. The system of inheritance was designed to keep property within the
individual tribe, to maintain its strength as a ghng force, to
preserve the relaon between the tribes, to kill the enemy and to be
proud of the tribe
b. The tribe was patriarchal. Female relaves are excluded
c. 3 grounds for inheritance:
 The ability to carry arms though he is a male but sll a child
or too old and weak, he is to be excluded from succession

 Treaty i.e an oath to ght and corporate together in peace

and war, individually or between tribes

 Adopon
4. Succession in the Islamic perspecve
a. Inheritance based on blood relaonship and marriage
b. Both man and woman can inherit 2:1
c. Parents and children will get their poron

d. Authority
 Case of Sa’d Al Rabi’
 Sunnah
5. 3 Pillars of succession/condions for inheritance

a. Al muwarith (praepositus)
 The death of the praepositus must be determined whether by:
1. Actual death (certain, burial permit)
2. Judicial declaraon
3. Presumpon of death (missing)

2 opons
i. 7 years – Secon 108 of the Evidence Act 1950
ii. 4 years – Secon 80 of the Syariah Court Eviden
Act 1997


Date of death is established from the date of the decree

and not from the date of disappearance

The distribuon can only be made aer the decree has

Any heir of the missing person who dies prior to the dat
entled as legal heir

 If a missing muwarith nally returns and all his estate h

distributed, he can only recover
property which has not yet been
disposed of. The heirs are not
obligated to compensate him
 b. Al warith (legal heir)
Legal heirs should be alive at the me of the deceased’s
death

Issue on uncertainty of death/simultaneous death

1. Hana, Maliki and Sha – the legal heirs are
not entled to inheritance, and they will not be
counted as heirs when calculang the poron
2. Hanbali – the legal heirs are entled to
inheritance

 Issue of missing legal heir

1. If the legal heir is missing at the deceased’s me
of death, he is considered dead from the date of
the disappearance and thus predeceases the
deceased
2. Rule of precauon – his share would be reserved
unl his status is determined or unl the court
issues a decree announcing his death
3. His share would be reserved for 4 years from the
deceased’s date of death
 Issue of unborn baby
1. Considered to be alive and treated as a legal
heir. His poron would be reserved unl its birth

 Free from any impediments

1. Slavery
2. Killing (Qatl)
 A killer does not inherit from his vicm

i. Hana – impeded expect

indirect killing (false
tesmony) and non-
aconable killing (legal)
ii. Maliki – killing must be
intenonal
 iii. Sha – killing is impeded in
all situaons iv. Hanbali –
killing must be intenonal,
without just cause and
punishable with either
qisas, diyyah or kaarah

 The intenon will be determined based

on the type of weapon used

3. Dierent of religion
Non-Muslim does not inherit from his
Muslim and vice versa
Dierence of religion is not a bar to taking
wasiyyah

 Apostasy

i. Hana – If return to Islam

before the actual
distribuon, the person is
entled to inheritance
ii. Jumhur – The person is
impeded even though
return before the actual
distribuon

 Conversion

i. Hanbali – Entled if revert before actual distribuon

ii. Jumhur – The person is impeded even though return before
the actual distribuon

 Who are the legal heirs?

1. Persons who are related to the deceased
by blood relaonship – nasab
 Non legal heir
i. Illegimate child – within 6
months, sll legimate, if
no, maternal
 ii. Step child/father/mother
iii. Adopted child iv. Lawful
mother/father
v. Child born from a marriage
which is later declared void
– if father accepts,
legimate. Sha says no.
vi. A child who suckled from a
woman other than his
mother

2. Spouse – marital relaonship

 Whose marriage with the praepositus is
valid and exisng at the

me of the decease

 Valid – According to Islamic law

 Exisng – Subsistence of the marriage at

the me of the decease

i. Mutual rights of inheritance

ceases as soon as the
marriage is terminated
ii. A marriage is deemed to be
in existence construcvely
as long as the wife remains
in her iddah
1. Revocable (raj’i)
– rights of
inheritance
connue to exist
2. Irrevocable
(ba’in) – rights of
inheritance cease
to exist
a. Mutual
consent
(khuluq
)
 b. Judicial
decree
(fasakh)
c. Triple
talaq –
excep
on
during
marad
al mawt
– Abdul
Rahman
Auf

iii. A wife who is divorced shortly

before the husband’s death
and without consummaon
will not be entled to
inherit since she is not
required to observe iddah

3. Enfranchisement of slavery – no more

relevant
 The master who has freed the slave may
inherit the slave’s property

 The kinship is obtained upon the freedom

of the slave

4. Baitulmal
 If there’s asabah, the estate will never go
to baitulmal

 Deceased dies leaving no heir or no

residuary heirs to take the balance of
the property or he is a Muslim convert

c. Al irth/tarikah (estate)
 Property acquired by the deceased during his lifeme via.
Sale and purchase, inheritance, Hibah, wassiyyah, etc.

 Debts due to the deceased

  Shares

 Mahr or maskahwin which has not been paid by the

husband unl the death of the wife

 EPF, Tabung Haji, Takaful

1. Nominee = trustee, not beneciary

2. Distribute according to faraid
3. Nominee as beneciary under condional hibah
is only provided under secon 142 IFSA 2013
 Convenonal insurance

1. Non-shariah compliance
2. Only the premium paid by the policy owner is
inheritable. The balance of the insurance benet
is to be given to Baitulmal
3. If the legal heirs of the deceased fall under the
category of fakir/miskin, they are allowed to
take the benet accordingly

 Non-estate (no need to distribute according to faraid, payable to the dependent)

1. Property disposed of via. Sale, hibah and waqaf
2. Trust property
3. Khairat kemaan
4. SOCSCO
5. Pension – payment of monthly pension paid to
the deceased when he was alive
6. Derivave gratuity upon death – die during the
service (weekend or o day included)
7. Ex-graa – death occurs while carrying out the
dues (bomba etc)
8. Joint account
9. Part of the estate claimed as jointly acquired
property

6. Rights associated to inheritance

a. Death
b. Burial preparaon
c. Selement of debts (To Allah and to human beings)
d. Wasiyyah – testamentary gi Denion 

1. An iqrar of a person made during his lifeme

with respect to his property or benet thereof,
to be carried out for the purposes of charity or
for any other purpose permissible by Islamic
law, aer his death

 Authority
1. 2:180
 It is prescribed, when death approaches
any of you, if He leave any goods that
He make a bequest to parents and
next of kin, according to reasonable
usage; This is due from the Allah
fearing
2. 2:240
 Those of you who die and leave widows
should bequeath for their widows a
year's maintenance
3. 4:11
 The distribuon in all cases is aer the
payment of legacies and debts

 2 limitaons of wassiyyah
1. Not exceeding 1/3 of estate
 May be executed if the consent of other
legal heirs can be obtained. If exceed,
need to make it 1/3

 The case of Sa`ad ibn Abi Waqqas

2. Not in favour of legal heirs

 The case of Abu Imamah
  Invalidaon of wassiyyah
1. The testator becomes a person of unsound
mind and dies in that state
(insanity)
 Secon 12(a) of the Muslim Wills
(Selangor) Enactment 1999

2. The beneciary predeceases the testator

(lapse)
 Secon 12(b) of the Muslim Wills
(Selangor) Enactment 1999

3. The subject maer is destroyed before the

testator’s death (adempon)
 Secon 12(c) of the Muslim Wills
(Selangor) Enactment 1999

4. The testator revokes the wassiyyah

(revocaon)
 Secon 12(d) of the Muslim Wills
(Selangor) Enactment 1999

5. The beneciary has intenonally caused

the death of the testator
(murder)
Secon 14 of the Muslim Wills (Selangor)
Enactment 1999

e. Distribuon
 Faraid

 Mutual agreement – takharuj

7. Hibbah
 a. Concept
 No limitaon as to the quantum

 Can give to anyone including legal heirs

b. Denion
 A gi or giving of something to someone without any
consideraon or price in return

c. 4 condions of hibbah
 The donor – person who makes hibbah
1. Aained the age of majority
2. Sound mind
3. Intenon and free will

 The donee – person who receives

1. Legal capacity to own property
2. If minor, guardian on behalf

 The subject maer

1. Idened with sucient clarity

 The ijab and qabul

1. Orally or gestures