The office that I work out of is small and often filled with convivial discussion and the interplay of ideas. The topics discussed range from epistemology to the banalities of gossip magazines. Last week one of my work colleagues raised the issue of Islamic succession. As I had discussed various types of indigenous succession, which lead to a discussion regarding Will making under various belief systems – which I will discuss briefly in my next few posts.
There are two main forms of Muslim belief Sunni and Shi’a. The three main sources of Islamic law are the Qur’an, the customary practices of the pre-Islamic period (with an emphasis on the tribal group descending through the male line of the family) and the Hadith (the descriptions of the practices and decisions of Mohammed)
A major source of inheritance law is the Qur’an. As is similar to many jurisdictions following a persons death the Qur’an places an obligation that when a Muslim dies the following duties must be performed. They are:
- Pay funeral and burial expenses.
- Paying debts of the deceased.
- Distribution of gifts under the Will.
- Distribute the remainder of estate and property to the relatives of the deceased accordingly.
Property passes as follows
- The Spouse
- Parents and their descendants
- Brothers, Sisters, and their children
- Then Paternal relatives
The customary laws that applied to inheritance in the Arabic peninsula prior to the Qur’an are reflected in Islamic law where the son takes priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles.
Unlike customary law the Qur’an gives daughters a specific share of an estate. If there is only a single daughter or granddaughter (the daughter of a son who has pre deceased his father) her share is one-half, if there are two or more daughters or granddaughters then their share is two-thirds. As a son inherits a share equivalent to that of two daughters, therefore if there are two or more daughters any granddaughters would not inherit from the estate. If there is one daughter and granddaughters, the daughter inherits one-half share and the granddaughters inherit the remaining one-sixth, making a total of two-thirds.
If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter.
Therefore, when creating a Will it is necessary to determine the relatives of the Will maker who are entitled to inherit, and their shares. These factors take greater prominence in Islam because of the restriction placed on the Will maker as to the amount and to who they can bequeath to under the Will.
Importantly Islamic laws of inheritance necessitate making a valid Will as the rules regarding intestacy in most jurisdictions do not meet the requirements for Islamic succession.