1983 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. a) Explain the difference between Al-Mirath (Net Estate) and Tarika
(gross estate) in the law of inheritance.
Al-Mirath (Net estate) includes all properties of any kind movable or
immovable whether ancestral or acquired, either by onerous or
gratuitous title as well as, all transmissible rights and obligations at the
time of his death and those that accrue thereto before partition;
While Tarika (gross estate) refers to all of the persons properties
rights and obligation of the deceased prior to deduction the rights and
claims attached to it.1
b) State the liens and charges attached to the estate of a decedent
in accordance with Islamic Law and the Code of Muslim Personal Laws
and explain briefly each of them.
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
washing, shrouding and internment of his remains. This also
1
Arabani,p.598, 2011 ed.
Page 1
include the expenses of his dependents pending settlement of
estate.
iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower2 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
The following are the liens and charges attached to the estate of a
decedent in accordance with the code of Muslim Personal Laws of the
Philippines:
i. Unpaid taxes; those referred the tax required by the government
to pay.
ii. Reasonable funeral expenses; All money used in funeral shall be
deducted to the estate of the deceased.
iii. The expenses for probate, administration and other judicial
expenses; those referred to the financial expenses use in the
processes before the partition of the estate;
2
Opposite of Dowry for husband from wife in some parts of India.
Page 2
iv. The debts of the decedent; those referred to the money or
property borrowed by decedent when he is still alive.
v. The legacies to the extent of the disposable one-third; thus refer
to the will made by the testator which shall not be more than
one-third of his estate.
vi. Distribution of the shares among heirs; after all the deduction of
the claims attached to the estate of the decedent, the property
will be divided to the legal heirs3.
vii. Unpaid dower; those referred to the dower, if not fully paid
before, during and after marriage.
2. a) Can a non-Muslim wife inherit from the estate of her deceased
Muslim husband under the Islamic Law? Explain briefly your answer.
No. One of the disqualifications to inherit under Islamic law is the
difference in religion. Thus, a non-Muslim wife cannot inherit from the
estate of her deceased Muslim husband.
b) Briefly state what are the provisions on the Code of Muslim
Personal Laws which ensure the right of a non-Muslim spouse to receive
a bequest (wasiyyah) by operation of law.
The Code substantially provides that the parent or spouse, who is
otherwise disqualified to inherit in view of Article 93(c) shall entitle to
one-third (1/3) of what he or she would have received without such
disqualification4.
3. a) A person died survived by his father, mother, and wife.
Distribute his estate worth P120,000.00 among the surviving heirs in
accordance with their apportioned shares.
3
Article 135, P.D.1083
4
Art. 107, P.D.1083
Page 3
F
+
M
+
W
R
1/3(Ri)
1/4
3
1/3(3/4) 1/4
2/4
1/4
1/4
Therefore:
F= 2/4 (120,000) = P60,000.00
M= 1/4 (120,000) = P 30,000.00
W= 1/4 (120,000) = P 30,000.00
P 120,000.00
b) A person died survived by her father, mother and husband.
Distribute her estate worth P160,000.00 among her surviving heirs in
accordance with their apportioned shares.
F
+
M
+
H
R
1/3(Ri)
1/2
1/2
1/3(1/2) 1/2
2/6
1/6
3/6
Therefore:
F= 2/6 (160,000) = P53,333.00
M= 1/6 (160,000) = P 26,667.00
H= 3/6 (160,000) = P 80,000.00
P 160,000.00
In the two problems above stated, briefly explain your solutions by
discussing the applicable rules in the Muslim Code of Islamic
Jurisprudence.
Page 4
The two problems mentioned above are referred to as Umaryatan
Case wherein the only heirs are the parents of the deceased together
with his/her spouse. It was named after Caliph Umar RA who settled and
decided the case, indirectly, the law says that, a portion of male must be
double of that female.
In the instance of their regular share, the mother will get a higher
share than the father. Accordingly, the father complained to the Caliph
and that he made the alternative solution, by way of the male have
double share to that female and arrived to the formula that the mother
has a share of the residue initial multiplied with one-third as provided
under the Qur’anic share.
4. A person died survived by his mother, step father, one (1) uterine
brother, one (1) uterine sister, two (2) full brothers, one (1) full sister,
one (1) father’s brother, his wife and a grandson.
1.) Who are the legal heirs of the decedent?
The following are the legal heirs of the decedent;
a) mother
b) wife
c) grandson
2.) What is the basis of their right to inherit from the decedent?
The basis of their inheritance is that they are all sharer which the
law itself fixed their corresponding share to the estate of the decedent.
Thus, the mentioned heirs cannot applied to them the principle of
exclusion.
3.) Who are those qualified to inherit, and those disqualified to
inherit, if any
Page 5
The following are those qualified to inherit:
a) mother
b) wife
c) grandson
The following are those disqualified to inherit:
a) step father
b) uterine brother
c) uterine sister
d) full brother
e) full sister
4.) Give the corresponding shares of those who are entitled to
inherit from the decedent.
M
+
W
+
GSon
1/6
1/8
R
4/24
3/24
17/24
= 24/24
5. Ali married his first cousin Zorayda in accordance with Muslim
rites. Subsequently, Ali died leaving his widow as the only heir. The
decedent left no will (wasiya) and an estate worth P1,000,000.00. the
lawful debts he left behind, including taxes, amount to P200,000.00
1.) What will be the share of the widow and on what basis?
Reasons.
Step 1.
P 1,000,000.00
Page 6
- P 200,000.00
P 800,000.00
Step 2.
W = ¼ ( P800,000.00) = P200,000.00
Therefore, the wife will get P200, 000.00 on the basis that wife will
share ¼ in the absence of the child or children.
2.) What happens to the residue of the estate? Explain your
answer.
The residue will be given to wife since there are no other heirs.
Therefore, the wife will get all the estate of the deceased person as
specified by the principle of reversion.
Under the Code that substantially provides if after distributing the
portion of the shares, a residue is left in the inheritance and there is no
surviving residuary heirs, the residue shall revert in its entirely to the one
share or to all sharers in proportion to their respective sharers. However,
the husband and the wife shall not be entitled to any part of the reverted
portion as long as there are other sharers and distant kindred5. In the
case at bar, no other surviving heirs and she is alone, thus the remaining
estate will be reverted to the wife.
6. A person survived by his mother, his wife who is pregnant at the
time of his death, one (1) brother, one (1) sister, a paternal uncle and a
maternal aunt.
1.) Who are entitled to inherit and on what basis?
The following are entitled to inherit in two (2) instances:
5
Article 130, P.D. 1083
Page 7
First, consider the conceived child as a son:
i. Mother
ii. Wife
iii. Son as conceived child
The brother and sister, paternal uncle and maternal aunt are
excluded in the presence of the son.
Second, consider the conceived child as a daughter:
i. Mother
ii. Wife
iii. Daughter as conceived child
iv. Brother
v. Sister
The law substantially provides that one or more consanguine
brothers or sisters surviving together, shall participate in the
hereditary estate, a brother to inherit double the share of a sister.
However, the provision of the next succeeding article
notwithstanding, the full brother shall, if nothing is left for him after
the distribution of the shares and he survives with uterine brothers,
participate with the latter in the one-third hereditary per capita.
Paternal uncle and maternal aunt are excluded due to the presence
of brother.
2.) Give the share of those entitled to inherit.
a. First, consider the conceived child as a son:
M
+
W
+
S
1/6 +
1/8 +
R
4/24 +
3/24 +
17/24
=
24/24
Page 8
b. Second, consider the conceived child as a daughter:
M
+
W
+
D
+
GB +
R
1/6 +
1/8 +
1/2 +
4/24 +
3/24 +
12/24
(4/24
+
3/24 +
12/24
+
12/72
+
72/72
9/72 +
36/72
+
+
GS
5/24 =
24/24
5/24 =
10/72
+
24/24)
3/3
5/72 =
The share of the son from first instance is greater than the share of
the daughter in second instance, therefore the share of the former will
be reserved to the conceived child.
3.) State the rule on the period of pregnancy (mudat-ul-hamel) in
relations to the unborn (posthumous) child.
According to Imam Abu Hanifa, the shortest period of
pregnancy (dat-ul-hamel) is six (6) months and the longest is two
(2) years. Imam Shafii reported that the longest period of
pregnancy is nine (9) months. This is agreed among Muslim jurists.
The better view, however, in determining the normal period of
pregnancy before the child is born, is to consider varying climatic
conditions and geographic locations. This will no longer be a
problem today in view of the advances in the science of medicine.
Through the use of “ultra sound” and electronic gadgets,
physicians are able to determine and calculate the length of
pregnancy and even the sex of the child in the womb of the
mother.
Page 9
7. a) State the essential elements for the validity of a will (wasiya)
under Islamic Law.
The following are the essential elements for the validity of a will
(wasiya) under Islamic law:
a. the testator must be legally competent being of major age, of
sound and disposing mind and is not expressly prohibited under
the Muslim law to make a will;
b. It must be made freely and voluntarily and not in jest or under
compulsion, threat, duress or intimidation;
c. It must be made in a manner and form which sufficiently and
clearly shows the intention of the testator regarding his desire
to bequeath by will;
d. The testator at the time of making the will must have the
properties over which he can exercise control; and
e. It must be made in the presence of at least two competent,
credible and disinterested witnesses.
b) In case of an aborted child, can his heirs inherit from him?
No. An aborted child is dead upon delivery and no personality, thus
no property left to his surviving heirs unless if there is a reserved
property to him. The said property will be redistributed to the heirs.
Furthermore, an aborted child under Islamic law cannot inherit from the
decedent, for the reason that he is not alive. The law substantially
provides that birth determines personality but the conceived child shall
be considered born for all the purposes that are favorable to it, provided
it be born alive. However, briefly at the time he is completely delivers
from the mother womb.
c) Who are entitled for the fine or compensation arising there from
i.e. Diyat (blood money) under Islamic Law, assuming that the only
survivor is the mother of the child.
Under Islamic law, a fine or compensation arising from Diyat (blood
money) shall be given to the surviving relatives. In the case at bar, the
Page 10
mother will receive the blood money as the only surviving heir after
deducting the expenses from the settlement of the case.
8. a) What is the distinction between an acknowledged child and an
acknowledged kinsman in terms of successional rights?
Acknowledged child can inherit to the father as a legal heir provided
the father manifested the acceptance in the public that he is the father of
the child and thus retracted the charge of adultery to his wife; whereas,
Acknowledged kinsman can inherit only if sharers, residuaries and distant
kindred are all absent.
b.1) Could a disavowed child (walad-a-li’an) inherit from his natural
father after the latter acknowledge him as his son?
Yes. A disavowed child can inherit to his natural father after the
latter acknowledged him as his son. Under Islamic law, it is called as
direct acknowledgement. The acknowledged person shall become the
heir (as son or daughter) of the acknowledger and shall be entitled to
inherit from him as such in the order of preference of heirs.
b.2) What is the rule when the father retracts his charge of
adultery against the mother of the disavowed child?
The rule when the father retracts his charged of adultery against the
mother of the disavowed child is that, there is still no change to the
effect that there must be no mutual rights of inheritance. The effect of
the divorce is perpetual.
3) State the legal status of the child and explain your answer.
The legal status of the child is an illegitimate child (waladu lian)
through divorce by Lian, unless he becomes a legal heir of his father on
the ground that the father acknowledged him as his own child and
retracted his charge of adultery to his wife.
Page 11
9. A person who is in a state of death illness (marad-ul-maut)
repudiates talaq his wife. A month after the expiration of the wife’s
‘Idda, the former husband died. A day after the death of the exhusband, the ex-wife contracted a second marriage. Within six months
from the celebration of the second marriage, the ex-wife gave birth to a
son. The estate of the decedent is pending settlement before your sala
as District Shari’ah Judge. Explain:
a) Could the ex-wife inherit from the decedent? Explain.
No. She will not inherit from the husband’s estate due to her
subsequent marriage during the period of idda for four months and ten
days or even after expiration, which she made their mutual rights of
inheritance extinguished. However, the law provides that she may inherit
from the husband even after the expiration of idda in the case of talaq
during the time of death illness without subsequent marriage.
b) Could the child, who was born within six months from the death
of the decedent, inherit also from the estate? Explain
Yes. A child born within six month from the death of the decedent
can inherit from the estate but she shall inform the heirs of such fact. The
law substantially provides that, should the marriage be dissolved the wife
contracts another marriage after the expiration of the idda, a child born
within six month from the dissolution of the prior marriage shall be
presumed to have been conceived during the former and if born
thereafter, during the latter.6
c) In the preceding problem, suppose it was the wife who died
during the pendency of her ‘Idda, could the surviving husband inherit
from her estate? Explain.
6
Article 60-61, P.D.1083
Page 12
No. the husband could not inherit to the wife due to the fact that he
has pronounce a talaq to his wife. The law substantially provides that, the
husband who, while in a condition of death-illness, divorces his wife shall
not inherit from her, but she shall have the right to succeed him even
after the expiration of idda7.
10. Abdulmajid is an enlisted man in the Armed Forces of the
Philippines. He was stationed in Jolo in 1974 at the height of the civil
uprising in the area. He has a son who is working in Saudi Arabia. Since
then, nothing has been heard of the whereabouts of Abdulmajid. His
son is his only heir. He learned of the disappearance of his father when
he returned home last month (November 1983). The son could not
ascertain whether his father is dead or still alive. His father has a large
tract of land in Kiamba, South Cotabato.
As his counsel, what advice would you give the son? Explain by stating
applicable rules on inheritance under Islamic Law of the Muslim Code.
As a counsel, I will advise him to notify and file a petition for
assumption of death to the Court for issuance of death certificate. The
law substantially provides that after an absence of seven years, it being
unknown whether or not the absentee still live he shall be presumed
dead. However, in order to the estate of the deceased person be
transmitted it must be after the lapse of 10 years after which he shall be
presumed dead by decree of court. The afore mentioned seven years,
refer to his civil personality, but thus ten years refer to the period of
waiting in order for the heirs to notify the court of such, the court may
issue the corresponding death certificate in order that the property or
estate may be transmitted to him. In the case at bar, either ordinary or
extra ordinary presumption of death because of ten years lapsed.
7
Article 96, P.D.1083
Page 13
1987 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. Define:
a) Succession
Succession is a mode of acquisition by virtue of which the
estate of a person is transmitted to his in accordance with this
Code8.
b) Will
Will is a declaration where by a person is permitted, with the
formalities prescribed by law, to control the disposition after his
death of nor more than one-third of his estate, if there are heirs or
the whole of it, if there are no heirs or distant kindred9.
c) Explain the difference between estate (Tarika) and inheritance
(Mirath).
Al-Mirath (Net estate) includes all properties of any kind
movable or immovable whether ancestral or acquired, either by
8
Art. 89, P.D. 1083
9
Art. 101, P.D.1083
Page 14
onerous or gratuitous title as well as, all transmissible rights and
obligations at the time of his death and those that accrue thereto
before partition;
While Tarika (gross estate) refers to all of the persons
properties rights and obligation of the deceased prior to deduction
the rights and claims attached to it10.
2.
Enumerate the disqualifications to succession.
The following shall be disqualified to succeed:
(a) Those who have intentionally cause directly or indirectly the
death of the decedent;
(b) Those who have committed any other act which constitutes a
ground for disqualification to inherit under Islamic law; and
(c) Those who are situated that they cannot inherit under Islamic
Law11.
3. a) What are the claims and charges that should be applied to the
estate of a decedent?
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
10
Arabani, p.598, 2011 ed
11
Article 93, P.D.1083
Page 15
washing, shrouding and internment of his remains. This also
include the expenses of his dependents pending settlement of
estate.
iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower12 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
The following are the liens and charges attached to the estate of a
decedent in accordance with the code of Muslim Personal Laws of the
Philippines:
i.
ii.
12
Unpaid taxes; those referred the tax required by the
government to pay.
Reasonable funeral expenses; All money used in funeral shall be
deducted to the estate of the deceased.
Opposite of Dowry for husband from wife in some parts of India.
Page 16
iii.
iv.
v.
vi.
vii.
The expenses for probate, administration and other judicial
expenses; those referred to the financial expenses use in the
processes before the partition of the estate;
The debts of the decedent; those referred to the money or
property borrowed by decedent when he is still alive.
The legacies to the extent of the disposable one-third; thus
refer to the will made by the testator which shall not be more
than one-third of his estate.
Distribution of the shares among heirs; after all the deduction
of the claims attached to the estate of the decedent, the
property will be divided to the legal heirs.13
Unpaid dower; those referred to the dower, if not fully paid
before, during and after marriage.
b) Are the claims and charges that should not be applied to the
said estate? Give examples.
The claims and charges that should not be applied to the said estate
are as follows:
i)
ii)
iii)
iv)
Expenses which are not reasonable for funeral expenses, i.e.
slaughtering cows during the mourn days.
Money loan with interest.
A will of more than 1/3 of the estate unless ratified by heirs.
and other properties which are acquired from unlawful
(haram), i.e. drug business, Scam Pyramidal scheme.
4. a) What are the qualifications of a testator or capacity to make a
will?
Pursuant to the provision of the Code of Muslim Personal laws which
substantially provides that any person of sound and disposing mind and
13
Article 135, P.D.1083
Page 17
who is not expressly prohibited under Islamic law may make a will.
Persons of either sex under the age of puberty cannot make a will.14
b) What is the philosophy behind the authority to make a will
granted to the testator?
The philosophy behind the authority to make a will granted to the
testator is that it is a divine institution, since it is regulated by the Qur’an.
It offers to the testator the means of correcting a certain extent the law
of succession and of enabling some of those relatives who are excluded
from inheritance to obtain a share in his good and of recognizing the
services rendered to him by a stranger or the devotion to him in his last
moment15.
5.
a) What is the testamentary waqf?
Under the law, testamentary waqf is an endowment for Islamic
purposes to take effect after the death of the donor (waqf-bil-wasiya)
partakes of the nature of a testamentary disposition.16
b) When and how may a will be revoked by the testator?
The law substantially provides that the will may be expressed or
impliedly revoked by the testator at any time before his death. Any
waiver or restriction of this right shall be void17.
6.
a) What is reversion?
Reversion (radd) literally means to return. Technically, in the
Muslim law on succession, it is a process whereby when after giving the
14
Article 105, P.D.1083
15
Arabani, 2011ed, p. 631
16
Article 104, P.D.1083
17
Article 108, P.D.1083
Page 18
fixed sharers their shares, a residue is left in the inheritance and there is
no residuary heirs to receive the it, the same shall revert in its entirely to
the lone sharer or to all the sharers in proportion to their respective
share18.
b) State the conditions under which it may be applied in
Succession.
Under the provision of the code of Muslim Personal laws which
substantially provides, if after distributing the portion of the shares, a
residue is left in the inheritance and there is no surviving residuary heirs,
the residue shall revert in its entirely to the one share or to all sharers in
proportion to their respective sharers. However, the husband and the
wife shall not be entitled to any part of the reverted portion as long as
there are other sharers and distant kindred.19
7. a) Who are the heirs entitled to the inheritance as sharers? Who
among the sharers are entitled to one-third (1/3) of the estate?
The following are entitled to inheritance as sharers:
i)
ii)
iii)
iv)
The husband, the wife;
The father, the mother, the grandfather, the grandmother;
the daughter, and the son’s daughter in the direct line;
The full sister, consanguine sister, uterine sister and the uterine
brother
The following are entitle to 1/3 of the shares
i)
ii)
The mother
The uterine brothers and uterine sisters
18
Arabani, 2011ed, p. 732
19
Article 130, P.D. 1083
Page 19
b) A person died leaving a daughter, wife (widow), a grandfather,
and a full brother. The hereditary estate is P480,000.00. What is the
share of each heir?
Step 1.
D
+
½
W
+
1/8
12/24
GF +
FB
1/6 +(R) R
3/24
4/24
5/24
Step 2.
D
W
GF
FB
12/24
3/24 R
[12/24
3/24 9/24] 2/2
24/48
6/489/48
9/48
Therefore:
D = 24/48 ( P480,000.00) = P 240,000.00
W = 6/48 ( P480,000.00) = P 60,000.00
GF = 9/48 ( P480,000.00) = P 90,000.00
FB = 9/48 ( P480,000.00) = P 90,000.00
8. a) Define residuary heirs.
Page 20
Residuary heirs are the heirs who are related to the deceased
through a male link. Under the law which states that, any residue left
after the distribution of the shares of the sharers shall be partitioned
among the residuary heirs.20
b) How may an heir succeed as a residuary? Give examples.
The law substantially provides that, any residue left after the
distribution of the shares of the sharers shall be partitioned among the
residuary heirs in accordance with the following article. An heir may
succeed as residuary heirs in his own rights i.e male descendant of the
decedent such as the son, son’s son how low so ever, residuary heirs in
another’s right i.e. daughter when she survives with the son, or together
with another’s right i.e. full blood or consanguine sister surviving with
daughters of the decedent.21
9. a) A person died leaving a father, a wife, a mother’s sister, a
father’s brother and a mother. The hereditary estate is P120, 000.00.
What is the share of each heir?
F
+
W
+
MS +
Fbro(GPU)
excluded excluded
+
M
R
¼
1/3 (Ri)
¾
¼
1/3 (3/4)
2/4
¼
¼
Therefore, falls on Umaryattan case:
F = 2/4 (P 120,000) = P 60,000.00
20
Article 124,P.D. 1083
21
Article 124,P.D. 1083
Page 21
W = ¼ (P 120,000) = P 30,000.00
M = ¼ (P 120,000) = P 30,000.00
P 120,000.00
b) In the above-mentioned problem, who shall inherit and who
shall not? Give reasons.
The following are those who can inherit:
i)
ii)
iii)
Father; because he is a sharer and cannot be excluded by any
one and his share was fixed in the holy Qur’an.
Wife; because she is relative to the decedent by affinity and the
same with the father her share is already fixed in the holy
Qur’an
Mother; because she is also a sharer and cannot be excluded by
any of the heirs and the same with the afore-mentioned also
her share is prescribed in the Holy Qur’an.
10. a) Enumerate the heirs, the shares whom is one over six (1/6) each.
Explain briefly.
The heirs who are entitled to the hereditary estate of one over six
(1/6) are as follows:
i)
ii)
iii)
Father; if the father survives with his child or children, her share
is sixth.
Mother; if the mother survives with a children or when she
survives with no children and two or more brothers and sisters
of the decedent.
Son’s daughter; if the only female sharer is the daughter, she is
entitled to 1/6 as a completion of the 2/3 share of the female.
Page 22
iv)
Germane sister; if the only female sharer is the daughter or
son’s, she is entitled to 1/6 as a completion of the 2/3 share of
the female.
v) Consanguine sister; if the only female sharer is the daughter or
son’s daughter or germane sister, she is entitled to 1/6 as a
completion of the 2/3 share of the female.
vi) Uterine sister; when she does not survive with her own sisters
(i.e. another uterine sister/s) or uterine brother
vii) Uterine brother; when he does not survive with her own
brother (i.e. another uterine brother/s) or uterine sisters
b) A person died leaving a son, a daughter, a consanguine brother.
The hereditary estate is P600, 000.00. Before settlement and partition
of said estate, the son died. If you were a Judge, how should you
distribute the estate applying related rules?
If I will be the judge, I will first divide and distribute to the son and
daughter in which the consanguine brother is excluded by the son. The
reason is that the son is alive at the time of the death of the decedent
which is one of the requisites in order to be qualified as successor.
Secondly, I will divide the share of the son which pertains to him if he was
alive. The share of daughter, who is a sister of son, will not be included
since that share is not part of the estate of the son. Illustration:
Estate: P 600,000.00
Step 1.
S
D
CB
Excluded by the Son
R
2/3
Therefore:
1/3 = 3/3
Son = 2/3 (P 600, 000.00) = P 400, 000.00
Daughter = 1/3 (P 600, 000.00) P 200, 000.00
Page 23
Step 2.
GS
+
CPU
½
R
½
½
Estate: P 400,000.00
Therefore:
Germane sister = ½ ( P 400,000.00) = P 200, 000.00
Paternal Consanguine Uncle = ( P 400,000.00) = P 200,000.00
Page 24
1991 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. a) What are the essential elements (rukun) of inheritance and
explain each briefly?
The essential elements (rukun) of inheritance are the following:
i)
ii)
iii)
Decedent; there must be a person who died.
Heirs; there must a legal heirs of the decedent who is entitled
to the property left by the decedent and not disqualified by
law.
Property; those referred to the property to the property left by
the decedent which is to be divided to his heirs.
b) What are the essential conditions or requisites (surut) of
inheritance and explain briefly?
Page 25
The essential conditions or requisites (surut) of inheritance are as
follows:
i)
ii)
iii)
The death of the decedent is ascertained; it must be prove that
the decedent is actually or presumptively died. In case of
presumptive death, there must be a death certificate.
The successor must be alive at the time of the death of the
decedent;
The successor must not be disqualified to inherit.22
c) Distinguish the two concepts.
The distinction between the two concept is that, in the absence of
one of the essential elements, the distribution or partition of the estate
become null and void while in the absence of one of the essential
conditions or requisites it may not invalidate the partition of the
inheritance.
2. State the five (5) charges or liens on the estate of the decedent (almurath) in the order of their preference and explain each briefly.
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
washing, shrouding and internment of his remains. This also
22
Art. 93, P.D.1083
Page 26
include the expenses of his dependents pending settlement of
estate.
iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower23 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
3. State the rule with respect to succession between divorced persons
under Muslim Law or the Muslim Code.
The law substantially provides that a husband who repudiates his
wife shall have mutual right of inheritance with her while she is observing
idda. After the expiration of the idda, there shall be no mutual rights of
succession between them. However, the husband who, while in a
condition of death-illness divorces his wife shall not inherit from her, but
she shall have the right to succeed him even after the expiration of her
idda.24
23
Opposite of Dowry for husband from wife in some parts of India.
24
Art. 96. P.D.1083
Page 27
4. State the rule adopted in the Muslim Code in making provisions for
the successional rights of a non-Muslim spouse, parent or descendant.
Illustrate or give an example.
Under the provision of the code of Muslim Personal Laws which
substantially provides that, should the testator dies without having made
a bequest in favor or any child of his son who predeceased him, or who
simultaneously dies with him, such child shall be entitled to one-third
(1/3) of the share that would have pertained to the father if he were
alive. The parent or spouse, who is otherwise disqualified to inherit in
view of Article 93(c) shall entitle to one-third (1/3) of what he or she
would have received without such disqualification.25
Example is deceased husband left Christian wife and a son. The
Christian wife is under the provision of the above mentioned.
5. a) What is meant by total and partial exclusion? Explain each
briefly.
Total exclusion means exclusion from the actual inheritance itself
(such as the exclusion of the grandfather by the father.
Partial exclusion means the prevention from a part of the
inheritance (such as the deduction of the husband’s share by a child from
half to one-fourth.26
b) Who are the heirs who cannot be totally excluded?
The following are cannot be totally excluded:
a) husband
b) Wife
c) Son;
25
Art.107, P.D.1083
26
Arabani 2011 ed., p.708
Page 28
d) Daughter
e) Father
f) Mother
6. Give the three (3) general classifications of heirs and enumerate
those falling under each category.
a) Sharers - 12
b) Residuaries ROR, RAR, RTA
a) Residuary in their own right:
a) Male descendants of the decedent in the direct line;
b) Male Ascendants of the decedent in the direct line;
c) Full- blood or consanguine brother of the decedent and their
male descendants, however distant in degree; and
d) Full- blood or consanguine paternal uncles of the decedent
and their male descendants, however distant in degree.
b) Residuary in another’s right:
a) Daughter’s surviving with the son of the decedent;
b) Son’s daughter surviving with their own brothers;
c) Full sisters surviving with their full brothers; and
d) Consanguine sisters surviving with their consanguine
brothers
c) Residuary together with another
Full-blood or consanguine sisters surviving with daughters or with
son’s daughters, however distant in degree from the decedent,
are residuaries together with another.
c) Distant kindred27
27
Ronsing, Succession, p. 25
Page 29
7. Enumerate the heirs who are entitled to the following allotted shares
to wit:
1/6
Father
½
Husband
2/3
Daughter
¼
Husband
1/3
Father
1/8
wife
Mother
Daughter
True
grandfather
Son’s
daughter
True
Germane
grandmother sister
Son’s
daughter
Son’s
daughter
Germane
sister
Consanguine
sister
wife
Mother
Uterine
brothers
Uterine
sisters
Consanguine
sister
Uterine
brother
Uterine
sister
8. State the three (3) categories of residuary heirs (asabah) and the
classes of heirs falling under each category under the Muslim Code.
a) Residuary in their own right:
a) Male descendants of the decedent in the direct line;
b) Male Ascendants of the decedent in the direct line;
c) Full- blood or consanguine brother of the decedent and their
male descendants, however distant in degree; and
d) Full- blood or consanguine paternal uncles of the decedent
and their male descendants, however distant in degree.
Page 30
b) Residuary in another’s right:
a) Daughter’s surviving with the son of the decedent;
b) Son’s daughter surviving with their own brothers;
c) Full sisters surviving with their full brothers; and
d) Consanguine sisters surviving with their consanguine
brothers
c) Residuary together with another
Full-blood or consanguine sisters surviving with daughters or
with son’s daughters, however distant in degree from the decedent,
are residuaries together with another.
9. Hassan died. His mother Habiba and two (2) full sisters survive
him. Mariam and Sofia. He left properties worth P120,000.00. Distribute
his estate by applying the appropriate doctrine in the law of
inheritance. Justify your answer.
M +
1/6
1/6
1/5
2GS
2/3
4/6
4/5
Therefore:
M = 1/5 (P 120,000.00) = P 24, 000.00
GS1 = 2/5 (P 120,000.00) = P48, 000.00
GS2 = 2/5 (P 120,000.00) = P48, 000.00
10. Kiram died intestate. He left the following properties, to wit; house
and lot valued at P300,000.00; brand new car valued at P200,000.00;
farm with fruit orchard valued at P100,000.00; house furniture’a at
P50,000.00; Ford Fiera at P45,000.00 and debts in the sum of
P215,000.00. His two sons, a daughter, mother and wife survive him.
During the settlement of the estate; the daughter waived her claims to
the estate provided that she will have the Ford Fiera vehicle.
Page 31
a) Distribute the estate by applying the appropriate rules on
inheritance. Let us assume that all the heirs agreed to the demand of
the daughter.
Estate:
House and lot
P300, 000.00
Brand new car
P200, 000.00
Farm
P100, 000.00
Furniture
P 50, 000.00
Ford Fiera
P 45, 000.00
P695, 000.00
___
Debts
P 215,000.00
P 480,000.00
2S
+
D
+
M
+
W
+
1/6
+
1/8
( 17/24
+
4/24
+
85/120
+
20/120 +
15/120 = 120/120
D
+
+
R
S
+
S
+
M
3/24
=24/24 )
W
Page 32
5/5
34/120 + 34/120
+17/120 + 20/120 +
15/120
=
120/120
S
=
34/120 (P480, 000.00) =
P136, 000.00
S
=
34/120 (P480, 000.00) =
P136, 000.00
D
=
17/120 (P480, 000.00) =
P 68, 000.00
M
=
20/120 (P480, 000.00) =
P 80, 000.00
W
=
15/120 (P480, 000.00) =
P 60, 000.00
P480, 000.00
Solution 1 (ford fierra is the share value of the Daughter as
agreed by them worth of P45, 000.00):
Excess share of the Daughter to be distributed to 2S +
+
W:
P 68, 000.00 – 45,000.00
2S
+
M
+
R
+
1/6 +
1/8
(17/24
+
4/24
+
=
P23, 000.00
W
3/24
=
24/24) 2/2
Page 33
M
34/48+
S
+
S
+
8/48
+
+
M
W
+
17/48+ 17/48+ 8/48
6/48
=
48/48)
6/48
=
48/48
S
=
17/48 (P23, 000.00) =
P 8, 000.00
S
=
17/48 (P23, 000.00) =
P 8, 000.00
M
=
8/48 (P23, 000.00) =
P 4, 000.00
W
=
6/48 (P23, 000.00) =
P 3, 000.00
P23, 000.00
Therefore:
S
=
P136, 000.00
+
P 8, 000.00
=
P144,
P136, 000.00
+
P 8, 000.00
=
P144,
000.00
S
=
000.00
D
=
P 45, 000.00
=
P 45,000.00
M
=
P 80, 000.00
+
P 4, 000.00
=
P
84,
P 60, 000.00
+
P 3, 000.00
=
P
63,
000.00
W
=
000.00
Page 34
P480, 000.00
b) Suppose that in the same problem, only the two (2) sons, the
other daughter and mother agreed but the wife objected. How will your
distribute the estate? Please explain and justify your answer.
Excess share of the Daughter to be distributed to 2S +M:
P 53,833.33 – 45,000.00
=
P8,833.33
2S
+
M
R
+
1/6
5/6 +
1/6
2S =
5/6 (P8,833.33)
3680.56/each Son
=
M
=
P 1,472.21
----------------P 8,833.33
=
1/6 (P8,833.33)
P 7,361.12
@
Therefore:
2S
=
P215,333.32
+
P 7,361.12
=
P222,694.44
@ 111,347.22/each Son
D
=
M
=
P 45,000.00
P 63,333.33 +
P 1,472.21
=
P 64,805.54
Page 35
W
=
P 47,500.00
----------------P380,000.00
1993 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1.
a) Define or explain the following terms:
i) Succession
Succession is a mode of acquisition by virtue of which the
estate of a person is transmitted to his in accordance with this
Code28.
ii) Will
Will is a declaration where by a person is permitted, with the
formalities prescribed by law, to control the disposition after his
death of nor more than one-third of his estate, if there are heirs or
the whole of it, if there are no heirs or distant kindred29.
28
Art. 89, P.D. 1083
29
Art. 101, P.D.1083
Page 36
iii) Testamentary waqf (waqf-bil-wasiya)
Testamentary waqf is and endowment for Islamic purposes to
take effect after the death of the donor (waqf-bil-wasiya) partakes
of the nature of a testamentary disposition.30
b) What are the essential elements (rukun) of succession? Discuss
briefly the requisites or conditions of each element.
The following are the essential elements of succession:
i)
ii)
iii)
The existence of the decedent; those if there is a person who
died.
Presence of heirs; there must be a persons, who is related to
him either by affinity and consanguinity provided they are not
disqualified by law to inherit; and
Property or Estate of the decedent, those referred to the
property where by the heirs are entitled to inherit.
2. a) Reconcile the order of preference of claims to the estate under
Islamic law and Article 135 of Presidential Decree No, 1083.
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
30
Article 104, P.D.1083
Page 37
washing, shrouding and internment of his remains. This also
include the expenses of his dependents pending settlement of
estate.
iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower31 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
The following are the liens and charges attached to the estate of a
decedent in accordance with the code of Muslim Personal Laws of the
Philippines:
i.
ii.
31
Unpaid taxes; those referred the tax required by the
government to pay.
Reasonable funeral expenses; All money used in funeral shall be
deducted to the estate of the deceased.
Opposite of Dowry for husband from wife in some parts of India.
Page 38
iii.
iv.
v.
vi.
vii.
The expenses for probate, administration and other judicial
expenses; those referred to the financial expenses use in the
processes before the partition of the estate;
The debts of the decedent; those referred to the money or
property borrowed by decedent when he is still alive.
The legacies to the extent of the disposable one-third; thus
refer to the will made by the testator which shall not be more
than one-third of his estate.
Distribution of the shares among heirs; after all the deduction
of the claims attached to the estate of the decedent, the
property will be divided to the legal heirs.32
Unpaid dower; those referred to the dower, if not fully paid
before, during and after marriage.
Therefore, to reconcile the two, the five order of preference of
claims such as those mentioned in the rights and claims in accordance
with Islamic law because the unpaid tax, unpaid dower, expenses for
probate, administration and other judicial expenses are considered to be
part of the debts of the decedent.
b) Define or explain al-Tarika and al-Mirath and distinguish each
from the other.
Al-Mirath (Net estate) includes all properties of any kind movable or
immovable whether ancestral or acquired, either by onerous or
gratuitous title as well as, all transmissible rights and obligations at the
time of his death and those that accrue thereto before partition; while
Tarika (gross estate) refers to all of the persons properties rights and
obligation of the deceased prior to deduction the rights and claims
attached to it.33
3. a) What are the impediments or disqualifications to inherit under
Presidential Decree No. 1083? Discuss each briefly.
32
Article 104, P.D.1083
33
Arabani, p.598, 2011 ed
Page 39
The impediments or disqualifications to inherit under Presidential
Decree No. 1083 are as follows:
i)
ii)
iii)
slavery; It was one of the impediment to inheritance for the
reason that during the pre-Islamic Arabs, a slave is then
considered the property of his master and therefore, has no
legal right to inheritance. Fortunately, it was already abolished.
Murder or homicide; It is also an impediment to inheritance
when someone causes the death of the decedent. It was also
reported that the prophet said that, the murder shall not
inherit.
Difference of religion; it is again become an impediment to
inheritance on the basis of the tradition of the prophet that,
the two people belonging to two different faiths do not inherit
from each other.34
b) Generally, an apostate (murtad) cannot inherit. Give an instance
where an apostate may inherit.
Generally, under Islamic law, an apostate cannot inherit under
Islamic law since difference of religion is a bar from inheritance.
However, pursuant to the provision of the code of Muslim Personal laws,
by bequest by operation of law, an apostate may inherit from his Muslim
relatives. The law substantially provides that, should the testator dies
without having made a bequest in favor or any child of his son who
predeceased him, or who simultaneously dies with him, such child shall
be entitled to one-third (1/3) of the share that would have pertained to
the father if he were alive. The parent or spouse, who is otherwise
disqualified to inherit in view of Article 93(c) shall entitle to one-third
(1/3) of what he or she would have
received without such
disqualification (art. 107, P.D.1083).
34
Arabani, 2011 ed., p.604-608
Page 40
4. Musa died leaving a gross estate worth P740,000.00. At the time of
his death, he was survived by the following relatives: (1) wife, (2)
father, (3) father’s father, (4) mother, (5) mother’s mother, (6)
daughter, (7) son’s daughter, (8) full sister, (9) consanguine sister, (10)
uterine sister, (11) uterine brother, and (12) an adopted son. During his
lifetime, he borrowed P20,000.00 from the Philippine Amanah Bank
which was not paid. He also made a will of P20,000.00 in favor of a
friend. His unpaid taxes amounted to P10,000 and P15,000.00 was
spent for his funeral.
a) Who are entitled to inherit? Give the basis of their inheritance.
The following are entitled to inherit:
a) wife
b) Father
c) Mother
d) Daughter
e) Son’s daughter
b) Who are not entitled to inherit? Give the basis or reason why
they cannot inherit.
The following are not entitled to inherit:
a) Father’s father; due to the presence of the father, he is totally
excluded from the inheritance.
b) Mother’s mother; thus the presence of the mother, she is totally
excluded from the inheritance due to the fact that nearest in degree
exclude the more remote.
c) Uterine Sister; when the father is present all the collateral lines
are totally excluded.
d) Uterine brother; when the father is present all the collateral lines
are totally excluded.
e) Adopted son.
Page 41
c) Compute and give the shares of those entitled to inherit in terms
of Philippine money.
Estate:
P 740,000.00
P 20,000.00
P 20,000.00
P 10,000.00
P 15,000.00
P 675,000.00 (mirath)
W
+
F
1/8
1/6+R
3/24
4/24
3/27
4/27
+
M
+
D
+
SD
1/6 ½
1/6
4/24
12/24
4/24 = 27/24
4/27
12/27
4/27 = 27/27
Therefore:
W=3/27 ( P 675,000.00) = P 75,000.00
F= 4/27 ( P 675,000.00) = P 100,000.00
M=4/27 ( P 675,000.00)= P 100,000.00
D= 12/27 ( P 675,000.00)= P 300,000.00
SD=4/27 ( P 675,000.00)= P 100,000.00
5. Mohammad and Zaid, father and son, respectively, boarded a
plane bound for Singapore. The plane crashed killing all the passengers
including Mohammad and Zaid. No evidence was available to prove as
to who of the two died first. At the time of their death, they left
substantial property, and were survived by the following relatives: (1)
Rakma, Mohammad’s wife and Zaid’s mother, (2) Latipa, Mohammad’s
Page 42
daughter and Zaid’s sister and, (3) Zainab, Mohammad’s daughter- inlaw and Zaid’s wife.
a) Who are entitled to inherit from the estate of Mohammad?
Compute and give their respective shares.
The following are the entitled from the estate of Mohammad are
Rakma, Mohammad’s wife and Latipa, his daughter.
W
+
D
1/8 +
½
1/8 +
4/8
1/8 +
7/8
b) Who are entitled to inherit from the estate of Zaid? Compute
and give their respective shares.
The following are entitled to the estate of Zaid are Rakma, his
mother, Latipa, his sister and Zainab, his wife.
M
+
GS +
W
1/3
½
¼
4/12
6/12
3/12
4/13
6/13
3/13
6. a) What are the different modes of succession in the light of
Presidential Decree No. 1083? Discuss each mode briefly.
The different modes of succession in the light of P.D. 1083 are as
follows:
Page 43
i)
ii)
iii)
By will; a person may by will, executed in the manner or form
prescribed by law, provides for the disposition of his properties
within the limit set by this code and upon his death, his
property shall thus be disposed according to his will.
By operation of this code; when the deceased left no will or
there being a will but the same is declared invalid, then his
estate shall pass to his heirs or persons entitled there to, by
operation of law in accordance with the rules laid down under
the code on legal succession.
By combination of both; when although the deceased left a will
but which does not provide for the disposition of all his
properties, then his estate shall be settled partly according to
his will and as regard to his other properties left after satisfying
his will, they shall disposed by operation of law in accordance
with the rules on legal succession.35
b) State the order of succession under the Presidential Decree No. 1083.
Discuss each briefly
Order of succession under P.D. 1083 are as follows:
i)
ii)
iii)
iv)
sharers; those whose shares are fixed and prescribed in the
Holy Qur’an.
Residuaries; those who are related to the decedent through
male link. They are entitled to the residue after the distribution
of the fixed shares of sharers.
In the absence of the foregoing, the Distant kindred; those who
are excluded as sharer due to their female link;
in default of the above, the acknowledge kinsman, universal
legatee, or public treasury, in that order. 36
35
Arabani,2011 ed., p 629, Art. 100, PD 1083
36
Art 99, PD 1083
Page 44
7. a) A wife died leaving an estate valued at P100,000.00 at the time
of her death, she was survived by her husband, mother, two uterine
brothers and full brother. Compute and distribute their respective
shares.
Step 1.
H
+
M
+
2UB +
GB
½
1/6
1/3
R
3/6
1/6
2/6
0
2UB +
GB
Step 2.
H
+
M
+
½
1/6
R
[3/6
1/6
2/6] 3/3
9/18
3/18
6 /18
Therefore:
H = 9/18 (P 100,000.00) = P 50,000.00
M = 3/18 (P 100,000.00) = P 16,666.67
UB1 = 2/18 (P 100,000.00) = P 11,111.11
UB2 = 2/18 (P 100,000.00) = P 11,111.11
GB = 2/18 (P 100,000.00) = P 11,111.11
b) Enumerate the different kinds or classes of residuaries in their
own right (asba-bin-nafs)
The following are the different kind or classes of residuaries in their
own right:
Page 45
i)
ii)
iii)
iv)
8.
Male descendants of the decedent in the direct line;
Male Ascendants of the decedent in the direct line;
Full- blood or consanguine brother of the decedent and their
male descendants, however distant in degree; and
Full- blood or consanguine paternal uncles of the decedent and
their male descendants, however distant in degree.
a) What does inheritance include under the Muslim Code P.D. 1083
The law so provides that, the inheritance of a person included all
properties of any kind, movable or immovable, whether ancestral or
acquired either by onerous or gratuitous title as well as all transmissible
rights and obligations at the time of his death and those that accrue
thereto before partition.37
b) Give at least two examples of transmissible rights and
obligations of a deceased person. Discuss each briefly.
Examples of transmissible rights and obligations of a deceased
person are:
37
i)
obligation to support; the heirs is liable to the child of the
deceased such that of under the womb of his wife. Such as the
law substantially provides that, if, after the dissolution of the
marriage, the wife believes that she is pregnant by her former
husband, she shall within thirty days after she became aware of
her pregnancy notify the former husband or heirs. This implies
that the heirs must be responsible enough to the child, in the
womb of his wife, left by the deceased.
ii)
property rights; those refer to the property of the deceased
that subject to the inheritance.
Article 92, P.D.1083
Page 46
9. a) May a will, holographic or formal, pass any proper without being
probated in accordance with law? Discuss briefly your answer.
No. will, holographic or formal could not pass any proper without
being probated in accordance with law under the law which substantially
provides that, No will of any other kind, holographic or formal, shall pass
any property unless it is proved and allowed in accordance with this
Code.38
b) If a will is probated during the lifetime of the testator, is it
necessary probate it again after the death of the testator?
Yes. A will must be probated it again after the death of the testator.
The reason behind is that, in order to assure that the will was not being
falsified and alter by the person handling thereof.
1995 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. a) Define and explain the following terms:
i) Succession
38
Art.103, P.D.1083
Page 47
Succession is a mode of acquisition by virtue of which the
estate of a person is transmitted to his in accordance with this
Code39.
ii) Will
Will is a declaration where by a person is permitted, with the
formalities prescribed by law, to control the disposition after his
death of nor more than one-third of his estate, if there are heirs or
the whole of it, if there are no heirs or distant kindred40.
iii) Testamentary waqf (waqf-bil-wasiya)
Testamentary waqf is and endowment for Islamic purposes to
take effect after the death of the donor (waqf-bil-wasiya) partakes
of the nature of a testamentary disposition.41
b) What are the essential elements (rukn) of succession? Explain
each briefly
The following are the essential elements of succession:
i. The existence of the decedent; those if there is a person who
died.
ii. Presence of heirs; there must be a persons, who is related to
him either by affinity and consanguinity provided they are not
disqualified by law to inherit; and
iii. Property or Estate of the decedent, those referred to the
property where by the heirs are entitled to inherit.
39
Art. 89, P.D. 1083
40
Art. 101, P.D.1083
41
Art. 104, P.D.1083
Page 48
2. a) What are the sources of the inheritance under Islamic Law?
Explain each briefly
The following are the sources of the inheritance under Islamic law:
i. The Holy Qur’an; those the shares of the legal heirs was fixed in
the revealed books specially the sharers.
ii. Hadith; those refer to the saying of the prophet with regard to
inheritance. For example is the saying of the prophet that, no
will to an heir.
iii. Ijma-al-Ummah; those refer to the consensus of the jurists
when there is no applicable rule express in the foregoing
sources.
iv. Custom or usages; those refer to the way accustomed by the
people in distributing the inheritance to the heirs in their
shares.
b) Give at least three (3) principal reasons why under Islamic Law a
male inherits double the share of a female.
The following are among the reason why under Islamic law why a
male inherit double the share of female:
i. Male has a greater responsibility than the female in the sense
that he is bound to protect and secure his sister in times of
trouble.
ii. Male is entitled to give customary dower should he wish to
contract a marriage while female is entitled to receive
customary dower when someone wants to marry her.
iii. Male are obliged to support his sister should their marriage was
dissolved.
3. a) What are the impediments or disqualification to inherit under
Presidential Decree No. 1083? Explain each briefly
Page 49
The impediments or disqualifications to inherit under Presidential
Decree No. 1083 are as follows:
i. slavery; It was one of the impediment to inheritance for the
reason that during the pre-Islamic Arabs, a slave is then
considered the property of his master and therefore, has no
legal right to inheritance. Fortunately, it was already abolished.
ii. Murder or homicide; It is also an impediment to inheritance
when someone causes the death of the decedent. It was also
reported that the prophet said that, the murder shall not
inherit.
iii. Difference of religion; it is again become an impediment to
inheritance on the basis of the tradition of the prophet that,
the two people belonging to two different faiths do not inherit
from each other.42
b) May an apostate (murtad) inherit from the deceased Muslim
relatives? If so, what instance? Discuss briefly your answer.
Generally, under Islamic law, an apostate cannot inherit under
Islamic law since difference of religion is a bar from inheritance.
However, pursuant to the provision of the code of Muslim Personal laws,
by bequest by operation of law, an apostate may inherit from his Muslim
relatives. The law substantially provides that, should the testator dies
without having made a bequest in favor or any child of his son who
predeceased him, or who simultaneously dies with him, such child shall
be entitled to one-third (1/3) of the share that would have pertained to
the father if he were alive. The parent or spouse, who is otherwise
disqualified to inherit in view of Article 93(c) shall entitle to one-third
(1/3) of what he or she would have
received without such
43
disqualification.
42
Arabani, 2011 ed., p.604-608
43
Art. 107, P.D.1083
Page 50
4. a) A wife leaving an estate of P600,000.00. At the time of her
death, she was survived by her husband, father and mother. Compute
and give their respective shares.
F
M
H
R
1/3(Ri)
½
1/3(1/2) ½
2/6
1/6
½
3/6
Therefore:
F = 2/6 ( P600,000.00) = P 200,000.00
M = 1/6( P600,000.00) = P 100,000.00
H = 3/6 ( P600,000.00) = P 300,000.00
b) A husband died leaving an estate worth P600,000.00. At the
time of his death, he was survived by his wife, father and mother.
Compute and give their respective shares.
F
M
W
R
1/3(Ri)
¼
3
1/3(3)
¼
2/4
1/4
¼
Therefore:
F = 2/4 ( P600,000.00) = P 300,000.00
M = ¼ ( P600,000.00) = P 150,000.00
W = ¼ ( P600,000.00) = P 150,000.00
5. a) A married woman died leaving an estate. At the time of her
death, she was survived by her husband, mother, two uterine brothers,
and a full brother. Give their respective shares.
Page 51
Step 1.
H
M
2UB
GB
½
1/6
1/3
R
3/6
1/6
2/6
0
H
M
2UB
GB
½
1/6
[3/6
1/6
2/6] 3/3
9/18
3/18
6 /18
Step 2.
R
b) May a walad-ul-zina inherit from his natural father? Explain
briefly your answer.
Under the law, a walad-ul-zina shall inherit only from her mother
and maternal relative. Thus the law substantially provides that, a child
who was the cause of the mother’s having been divorced by li’an shall
have mutual rights of succession only with the mother and her relatives.
However, those if the father acknowledged the walad-ul-zina , he shall
become a legal heir of his natural father.
6. a) Enumerate the different classes or kinds of residuaries in their
own right (asaba-bil nafs)
Residuary in their own right are as follows:
a) Male descendants of the decedent in the direct line;
b) Male Ascendants of the decedent in the direct line;
c) Full- blood or consanguine brother of the decedent and their
male descendants, however distant in degree; and
d) Full- blood or consanguine paternal uncles of the decedent
and their male descendants, however distant in degree.
Page 52
b) Who are the residuaries in another’s right (asaba-bil-ghair)?
Residuary in another’s right are as follows:
a) Daughter’s surviving with the son of the decedent;
b) Son’s daughter surviving with their own brothers;
c) Full sisters surviving with their full brothers; and
d) Consanguine sisters surviving with their consanguine
brothers
7. a) What are the different modes of succession under Presidential
Decree No. 1083? Explain each mode briefly.
The different modes of succession in the P.D. 1083 are as follows:
i) By will; a person may by will, executed in the manner or form
prescribed by law, provides for the disposition of his
properties within the limit set by this code and upon his
death, his property shall thus be disposed according to his
will.
ii) By operation of this code; when the deceased left no will or
there being a will but the same is declared invalid, then his
estate shall pass to his heirs or persons entitled there to, by
operation of law in accordance with the rules laid down
under the code on legal succession.
iii)By combination of both; when although the deceased left a
will but which does not provide for the disposition of all his
properties, then his estate shall be settled partly according to
his will and as regard to his other properties left after
satisfying his will, they shall disposed by operation of law in
accordance with the rules on legal succession.44
b) State the order of succession under Presidential Decree No.
1083. Explain briefly.
44
Arabani,2011 ed., p 629
Page 53
Order of succession under P.D. 1083 are as follows:
i) sharers; those whose shares are fixed and prescribed in
the Holy Qur’an.
ii) Residuaries; those who are related to the decedent
through male link. They are entitled to the residue after
the distribution of the fixed shares of sharers.
iii)In the absence of the foregoing, the Distant kindred; those
who are excluded as sharer due to their female link;
iv)in default of the above, the acknowledge kinsman,
v) universal legatee, or public treasury, in that order.
8. a) What are the essential elements (rukn) of a will (wasiya)?
Explain each briefly.
The essential elements (rukn) of a will (wasiya) are as follows:
i) the testator must be legally competent being of major age, of
sound and disposing mind and is not expressly prohibited
under the Muslim Law to make a will;
ii) It must be made freely and voluntarily and not in jest or
under compulsion, threat, duress or intimidation;
iii)It must be made in a manner and form which sufficiently and
clearly show the intention of the testator regarding his desire
to bequeath by will;
iv)The testator at the time of making the will must have
properties over which he can exercise control; and
v) It must be made in the presence of at least two competent,
credible and disinterested witnesses
b) What are three (3) kinds of will (wasiya) under Presidential
Decree No. 1083? Explain briefly.
Kinds of will (wasiya) under Presidential Decree No. 1083 are as
follows:
Page 54
i) Oral or nuncupative will, one orally made by the testator in a
manner that shows clearly the intention of the testator to
execute it in the presence of at least two competent adult
Muslim male witnesses.
ii) Written will personally written by the testator himself, or by
another under his personal, supervision and control, done in
a manner that shows clearly the intention of the testator to
execute it, in the presence of at least two competent,
credible and disinterested adult male witnesses.
iii)Holographic will, the term holographic will is described in the
following provision of the civil code, a suppletory law to the
Muslim code, as follows: “a person may execute a
holographic will which must be entirely written, dated and
signed by the hand of the testator himself. It is subject to no
other form, and be made in or out of the Philippines and
need not be witnessed”. However unlike the holographic will
under the civil code, the holographic will prepared by a
Muslim is under the present article of the Muslim code
requires that it be made in the presence of at least two
competent, credible and disinterested adult male
witnesses.45
9. Mohammad died intestate and was survived by his wife, mother
and two daughters, and an al-khunta child at the time of his death. His
net estate is worth P3,600.00
1. How much is the share of the al-khunta child?
2. How much is the share of the wife and each of the two daughters.
W
M
2D
Al-khunta
Step 1.
Presume that the al-khunta is a daughter;
W
45
M
3D
Arabani 2011 ed., p.640
Page 55
1/8
1/6
2/3
3/24
4/24
16/24
Step 2.
M
3D
1/6
2/3
1/6
4/6
1/5
4/5
Step 3.
W
M
3D
1/8(5/5) 1/5 (7/8) 4/5(7/8)
[5/40
7/40
28/40]3/3
15/120
21/120
84/120
Step 4.
Presume that the alkhunta is a son;
W
M
2D
S
1/8
1/6
R
[3/24
4/24
12/96
16/96
17/24]4/4
68/96
Therefore:
W= 15/120 (P 3,600.00)= P 450.00
M= 21/120 (P 3,600.00)= P 630.00
D1= 28/120 (P 3,600.00) = P 840.00
Page 56
D2= 28/120 (P 3,600.00) = P 840.00
Al-khunta =28/120 (P 3,600.00) = P 840.00
the lesser share
will reserved.
10. a) A Muslim executed a will whereby he states that upon his death,
his cadaver be given to a Medical school for the study of different
organs to enhance the advancement of medical science. Under Islamic
law, is the will valid? Why?
Generally under Islamic law, a will must be made by the testator
from his property. Hence, any part of the body of a person is not a
property of him; it is a creation of Allah. Therefore, he cannot make a will
as such by giving his cadaver to a medical school for the study of different
organs to enhance the advancement of medical science.
b) Explain briefly why endowment for Islamic purpose is perpetual,
irrevocable and inalienable.
The reason behind why endowment for Islamic purpose is perpetual,
irrevocable and inalienable is that, the ownership of the endowed
property was already transferred to everybody where in no one can claim
it as his own. Since, it is used by the public. The main purpose of
endowment for Islamic purpose is for the benefits of the poor.
Page 57
1997 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
Page 58
I.
a)
State the three (3) modes of acquiring ownership under
Islamic Law and
define each other briefly.
The three modes of acquiring ownership under Islamic law are:
1.)Possession (ihraj) - Possession means acquisition, control or
taking of a thing without a known owner through hunting,
fishing, treasure hunting or occupation of an abandoned
thing (res nullius).
2.)Transfer (naql) - Transfer means acquisition of a thing, its fruits
or interests or the principal thereof through sale, barter or
exchange, gift (hibah), and waqf (endowment).
3.)succession (khalf) - Succession is a mode of acquisition of a
thing through inheritance (mirath) or wills/bequest
(wasiyah). Ownership by succession is called Milkayyah bi
khilafa succession is either;
i. Optional or Iktyariyyah , in the form of a will or bequest
(wasiya); or
ii. Compulsory or Ajbariyyah, by means of the rules of
inheritance under Islamic law.
b)
Give the distinction between wasiya (will) and waqf
(endowment) and
their similarities, if any.
The distinction between wasiyah (will/bequest) and waqf
(charitable endowment) are:
i. A wasiyah is a voluntary disposition or transfer of a property or his
profits by a person known as MUSI (LEGATOR) in favor of a legatee
(MUSA LAHU) to extent of a one-third of his estate and to take
effect after the death of the testator/legator (MUSI). The person to
inforce and execute the wasiya is called the Wasi (Executor).
Page 59
ii. A waqf is the transfer of the principal of valuable property to the
ownership of ALLAH. Generally for religious. Pious or charitable
purposes for the benefit or certain individuals or groups of person.
It takes effect either during the lifetime or the dedicator (waqif) of
after his death.
iii. If the waqf is created with the condition that it shall take effect after
the death of waqif, it is called waqf-bil-wasiya (testamentary waqf)
and partakes the nature of a testamentary disposition or wasiya
and is subject to the same conditions of the disposable one third
limitation and ratification by the heirs it in excess thereof. (See
Art.106, Muslim code).
iv. A wasiya and waqf-bil-wasiya are similar, except that in wasiya the
purpose is for any secular or legal purposes while in waqf,
charitable purposes is always presumed.
v. Both require an executor or administrator, known as Wasi in Wasiya
and Mutawalli (manager) in waqf.
vi. Both are also revocable during the lifetime of the testator (MUSI) or
dedicator (waqil). Subject to the disposable one-third limit of the
estate or ratification by the co-heirs. The heirs in both could be
made beneficiary (legatee/musa lahu in wasiya or mauquf
alaih/alyhim in waqf).
vii. Both do not require particular formalities. But unlike wasiya, only
the income of the thing is expendable in favor of the beneficiary in
waqf .
viii.Acceptance of the will/bequest by the legatee is essential in wasiya
but not an essential condition or requisite in waqf.
ix. In waqf bil-wasiya, acceptance of the will/bequest devolves upon
the Mutawalli or beneficiary institution in behalf of the intended
beneficiaries
Page 60
c) What is the difference between wasiya (will) and hibah
(gift/donation) and explain each briefly.
II.
i.
Wasiya takes effect after the death of the testator while in
hibah, it always take effect during the lifetime of the donor
(giver) and donee (recipient).
ii.
In hibah, there must be total renunciation by the donor of all
his title and rights to the property given with the immediate
effect and without consideration by one person in favor of
another.
iii.
The donor (giver) in hibah can only revoke the gift before
delivery of possession while the testator in wasiya can revoke
the will anytime during his lifetime. But once there is
acceptance of the gift, It can not revoked by the donor.
a)
Rakim died intestate or without leaving a will (wasiya).
He left the following properties, to wit: house and lot valued at
P300,000.00; brand new car valued at P200,000.00; a farm with
fruit orchard valued at P100,000.00; house furniture at
P50,000.00; Ford Fiera at P45,000.00 and debts in the sum of
P215,000.00. He is survived by two (2) sons, a daughter, mother
and a wife.
During the settlement of the estate, the daughter waived her
claims to the estate provided that she will have the Ford Fiera
vehicle. Distribute the estate by applying the appropriate rules
on inheritance. Let us assume that all the heirs agreed to the
demand of the daughter.
Estate:
House and lot
Brand new car
P300,000.00
200,000.00
Page 61
2S
Farm
Furniture
Ford Fiera
Less: debts
100,000.00
50,000.00
45,000.00
- 215,000.00
-----------------P380,000.00
+
+
M
+
1/6 +
D
R
(17/24
+
68/120 +
17/120
120/120
+
W
1/8
4/24 +
+
3/24
20/120
=
+
24/24)5/5
15/120
2S =
68/120 (P380,000.00)
107,666.66/each Son
=
P215,333.32
D
=
17/120 (P380,000.00)
=
P 53,833.33
M
=
20/120 (P380,000.00)
=
P 63,333.33
W
=
15/120 (P380,000.00)
=
@
=
P 47,500.00
----------------P380,000.00
a) Solution 1 (ford fierra is the share of the Daughter as agreed by them
worth of P45,000.00):
Excess share of the Daughter to be distributed to 2S +M+W:
P 53,833.33 – 45,000.00
2S
+
M
+
=
P8,833.33
W
Page 62
R
+
17/24
1/6 +
+
1/8
4/24 +
3/24
=
24/24
2S =
17/24 (P8,833.33)
3,128.47/each Son
=
P 6,256.94
M
=
4/24 (P8,833.33)
=
P 1,472.22
W
=
3/24 (P8,833.33)
=
P 1,104.17
----------------P8,833.33
@
Therefore:
2S
=
P215,333.32
+
P 6,256.94
=
P221,590.26
@ 110,795.13/each Son
D
=
P 45,000.00
M
=
P 63,333.33 +
P1,472.22
W
=
P 47,500.00 +
P1,104.17
=
P 48,604.17
----------------P380,000.00
=
P 64,805.55
b) Suppose that in the same problem, only the two (2) sons, the
other daughter and mother agreed but the wife objected. How will your
distribute the estate? Please explain and justify your answer.
Excess share of the Daughter to be distributed to 2S +M:
P 53,833.33 – 45,000.00
=
P8,833.33
Page 63
2S
+
M
R
+
1/6
5/6 +
1/6
2S =
5/6 (P8,833.33)
3680.56/each Son
=
M
=
P 1,472.21
----------------P 8,833.33
=
1/6 (P8,833.33)
P 7,361.12
@
Therefore:
2S
=
P215,333.32
+
P 7,361.12
=
P222,694.44
@ 111,347.22/each Son
D
=
M
=
W
=
III.
P 45,000.00
P 63,333.33 +
P 1,472.21
=
P 64,805.54
P 47,500.00
----------------P380,000.00
What do you mean of bequest by operation of law? Is this
recognized under the Muslim Code? State the practice in Muslim
countries, if you know.
The Code substantially provides that should the testator dies
without having made a bequest in favor or any child of his son who
predeceased him, or who simultaneously dies with him, such child
Page 64
shall be entitled to one-third (1/3) of the share that would have
pertained to the father if he were alive. The parent or spouse, who is
otherwise disqualified to inherit in view of Article 93(c) shall entitle
to one-third (1/3) of what he or she would have received without
such disqualification (art. 107, P.D.1083).
Yes. Generally under the Islamic law or in an Islamic State or
Muslim countries, a non-Muslim shall not inherit from his or her
relative who are Muslims, but the Code recognizes as stated above.
IV.
Hadji Talib died without leaving an heir. However, he left an
estate valued at P500,000.00. He executed a will bequeathing his
entire property to a charitable institution for the building of
school for the poor Muslim children of Campo Muslim,
Zamboanga City. He has an unpaid debts in the amount of
P10,000.00 and taxes in the sum of P20,000.00. During the
settlement of his estate, two (2) persons appeared and
presented their claims to the probate court. One claims that he
is an acknowledge son of the decedent while the other claims as
an acknowledge brother. If you were the judge, how will you
decide this case? Please justify your answer. Suppose that in the
same problem, Hadji Talib did not leave a will. How could you
settle the estate? Also explain and justify your answer.
In this case Hadji Talib who died without leaving an heir and an
estate valued at P500,000.00 is only allowed to dispose by will not
more than one third of his estate after deduction of the unpaid
debts of P10,000.00 and taxes of P20,000.00, indicated as follows:
Gross Estate
Less: Unpaid debts
Taxes
Total
Less: Bequest
NDE
=
(net disposable estate)
P500,000.00
10,000.00
20,000.00
470,000.00
156,666.67
P313,333.33
==========
Page 65
The net disposable estate of the Deceased Hadji Talib after
deducting the debts, taxes and bequest is P313,333.33. The
amount of the bequest is arrived after deduction of the debts and
taxes by dividing the remaining value of the estate by three or in
the equivalent of P156,666,67.
In the absence of any surviving heirs like sharers and
residuaries, the remaining estate under Article 99 of the Muslim
Code in further subject to the following order of succession, to
wit:
1) To the distant kindred (dhawil-ul-Arham) who are blood
relatives in the absence of sharers and residuaries, and
2) In their default, to the acknowledge kinsman, universal
legatee, or public treasury (bait-ul-mal), in that order.
If there are no distant kindred who are blood relatives. The
remaining NDE is supposed accrue to the universal legatee or the
charitable institution in this case in behalf of the poor Muslim
children of Campo Muslim, Zamboanga City or will be escheat in
favor of the bait-ul-mal (Muslim Public Treasury), if there is any.
But since there are two (2) other heirs who appeared during the
settlement of the estate, the universal legatee or the public
treasury and excluded. In this case, the acknowledge son who falls
under the category of a residuary of the first order (asaba bi nofs)
under Article 125(a) of the Muslim Code will exclude the
acknowledged brother who is excluded by a son or male
descendant according to the rule of exclusion (Article 123(a))of
the Muslim Code. If I were the Judge, this is how I will decide the
case.
However, if in the same problem, Hadji Talib did not leave a
will, the acknowledged son as the lone surviving residuary heir of
the first order, to the exclusion of the acknowledge brother, will
receive the entire net disposable estate valued at P470,000.00.
V.
What is the shortest period of pregnancy and the longest period
as reported by Imams Hanifa and Shafi’i? What is the normal
Page 66
period of pregnancy as agreed by Muslim jurists for purposes of
fixing the share of a posthumous child (el hamel) in inheritance?
Would this problem in the light of the advances in the science of
medicine? Please explain briefly.
According to Imam Abu Hanifa, the shortest period of
pregnancy (dat-ul-hamel) is six (6) months and the longest is two
(2) years. Imam Shafii reported that the longest period of
pregnancy is nine (9) months. This is agreed among Muslim jurists.
The better view, however, in determining the normal period of
pregnancy before the child is born, is to consider varying climatic
conditions and geographic locations. This will no longer be a
problem today in view of the advances in the science of medicine.
Through the use of “ultra sound” and electronic gadgets,
physicians are able to determine and calculate the length of
pregnancy and even the sex of the child in the womb of the
mother.
VI.
Moner is a disavowed child (walad-ul-lia’an). But before his
father died, the latter retracted his vow and recognized him as
his son. His father is survived by a wife, (mother of Moner),
father and full brother. The father left as estate worth
P60,000.00. In the instant problem, can Moner inherit from his
father? How about his mother? Distribute the estate of the
decedent. Explain and justify your answer.
Yes, Moner can inherit from his father because his father
retracted the vow and recognized him. The mother of Moner
cannot inherit because their marriage was dissolved through Lian,
means their mutual inheritance to each other was put into end.
Son
R
5/6
+
+
F
+
GB
1/6 +
0 (excluded in the presence of the son)
+
1/6
Page 67
Son
F
VII.
=
=
5/6 (P60,000.00)
1/6 (P60,000.00)
=
P50,000.00
=
P10,000.00
--------------P60,000.00
Abdullah is soldier in the Saudi Army. He is one of those sent
to the battle field during the Gulf war. The war lasted for year.
After the war nothing has been heard of him. There is no
information whether he died in the battlefield or that he was
taken as prisoner of war. Five years had elapsed and there was
still no information about the whereabouts of Abdullah. He left
a property worth SR240,000.00 Saudi Riyals. He is survived by
his father, wife, two (2) daughters, two (2) full brothers and five
(5) full sisters. A petition was filed by one of the heirs before the
Shari’ah Court to declare Abdullah dead for the purpose of
settling his estate.
a)
If you were the Judge, what will be your decision? What is
the status of Abdullah?
The Code substantially provides the succession by
absentee shall be reserved until the lapse of ten years after
which he shall be presumed dead by decree of the Court.46
Furthermore, it provides that the extinction of personality in
after an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead.47 Thus,
these positions are intended for ordinary presumption of
circumstances.
In the case at bar, five years elapsed after he was sent to
battle field which indicated in an extra ordinary presumption of
circumstances, hence, Muslim jurists considered four years
lapsed in a danger circumstances as an extra ordinary of
46
Art. 98, P.D. 1083
47
Art. 11, P.D. 1083
Page 68
presumption. Therefore, Abdullah shall be decreed and
presumed dead.
b) Estate = SR240,000.00
F
+
1/6+R +
W
+
2D +
2GB +
1/8 +
2/3 +
excluded by the F
4/24+1/24 +
3/24 +
16/24
F =
5/24 (SR240,000.00)
W
=
=
3/24 (SR240,000.00)
=
5GS
24/24
SR 50,000.00
=
2D
=
16/24 (SR240,000.00) =
80,000.00 each D
-----------------SR240,000.00
30,000.00
160,000.00 @
VIII. Jamal is married to Salima. While Jamal was in a state of deathillness (Marad-ul-Maut), he divorced his wife Salima. Jamal later
died of his illness while Salima was still observing her idda. He
left an estate worth P259,000.00 and debts in the amount of
P19,000.00. Settle the estate of Jamal. Suppose that Jamal died
after the expiration of the idda of wife Salima. Will she still be
entitled to inherit? Explain and justify your answer.
The Code substantially provides that the husband who, while
in a condition of death-illness, divorces his wife shall not inherit
from her, but she shall have the right to succeed him even after
the expiration of her 'idda.48 Therefore, Salima is entitled to
inherit from Jamal even after the expiration of her idda.
Estate
48
=
P259,000.00 – 19,000.00
= P240,000.00
Art. 96, P.D. 1083
Page 69
Wife Salima = 1/4 (P240,000.00) = P 60,000.00
P180,000.00 (by reversion)
-----------------P240,000.00
IX.
Karim died. He is survived by his mother, Habiba and two (2)
full sisters, Mariam and Sofia. He left a property worth
P120,000.00. Distribute his estate by applying the appropriate
doctrine in the law of inheritance. Justify your answer.
M+
1/6
1/6
1/5
2GS
+
2/3
+
4/6 =
+
4/5 =
5/6 (DOCTRINE OF RADD)
5/5
M=
1/5 (P120,000.00) =
P 24,000.00
2GS =
4/5 (P120,000.00) =P 96,000.00 @ 48,000.00 each
sister.
----------------P120,000.00
X.
What do you mean by the following doctrines:
a)
Radd (doctrine of return)
This is the reversion of residue. — If, after distributing the
portions of the sharers, a residue is left in the inheritance
and there is no surviving residuary heir, the same shall revert
in its entirety to the lone sharer or to all the sharers in
proportion to their respective shares. However, the husband
or the wife shall not be entitled to any part of the reverted
Page 70
portion as long as there are other sharers or distant
kindred.49
M+
1/6
1/6
1/5
b)
2GS
+
2/3
+
4/6 =
+
4/5 =
5/6 (DOCTRINE OF RADD)
5/5
Aul (doctrine of increase)
This is the reduction of shares. — If the totality of all the
shares assigned to each of the sharers exceeds the whole
inheritance, the shares shall be reduced proportionately.50
H+
1/2
3/6
3/7
c)
2GS
+
2/3
+
4/6 =
+
4/7 =
7/6 (DOCTRINE OF ‘AUL)
7/7
Tas’heh (doctrine of correction)
Correction is only applied when the share of an heir or
heirs co-existing with the other heirs is lesser or different the
lawfully fixed shares, by the Islamic law. Such doctrine of
correction is called by the jurists or the Sunni lawyers as
Tas’heh in Arabic which means formula of correcting the
situation.
1999 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
49
Art 130, P.D. 1083
50
Art 129, P.D. 1083
Page 71
1. Hassan has three wives. He died without leaving a will. He left a
property worth P400,000.00 and is survived by his three (3) wives, two
(2) sons, three (3) daughters, two (2) full sisters, a father, a mother, a
two (2) uterine brothers and (1) full brother. During the settlement of
his estate, Nora, a Christian appeared claiming as the fourth wife of
Hassan. Distribute the estate of Hassan. Is the wife Nora entitled to
inherit from the estate of Hassan? Please explain and justify your
answer. Suppose the wife Nora, during the settlement of the estate of
Hassan offered in evidence that she has converted to Islam, would you
allow her to inherit from Hassan? Please explain and justify your
answer.
3W 2S
3D 2GS F
M
2UB 1GB Nora (Christian wife)
Step 1. Assume that Nora is a Muslim
4W
2S
3D
F
M
[3/24
13/24
4/24
21/168
91/168
28/168
84/672
112/672
4/24]7/7
28/168
104/672 104/672 52/672 52/672 52/672 112/672
21/672 21/672 21/672 104/672 104/672 52/672 52/672 52/672
112/672 112/672
Step 2. Assume that Nora is Christian
21/672 [1/3] = 7/672
42/2016 [3/3] = 42/6048 + 42/6048 + 42/6048
Muslim wife = 21/672 [9/9] +42/ 6048 = 189/6048 + 42/ 6048
Page 72
Yes, Nora can inherit from Hassan even she is a Muslim or Christian.
However, If she is a Christian, she will inherit by bequest of operation of
law, she is entitled to 1//3 of her original share as if she is a Muslim.
2. Harun is married to Zurayda. While Harun was in a state of deathillness (marad al-maut), he divorced his wife Zorayda. Harun later died
of his illness while Zorayda was still observing her idda. He left an
estate worth P25,000.00 and debts in the amount of P19,000.00.
a) Settle the estate of Harun.
Due to the fact that the only heir is the wife, she will get the
property left by Harun. Thus, she will get P 6,000.00
Illustration:
Estate
P 25,000.00
-P 19,000.00
P 6,000.00
b) Suppose that Harun died after the expiration of the ‘Idda of wife
Zorayda. Will she be entitled to inheritance? Explain and justify your
answer.
Yes. Zorayda has still been entitled to inheritance even after the
expiration of the iddah. The law substantially provides that, The husband
who, while in a condition of death-illness, divorces his wife shall not
inherit from her, but she shall have the right to succeed even after the
expiration of the iddah.
3. a) State the five (5) charges or liens to the estate of the decedent
(al-murath) under Islamic law in the order of their preference and
explain each briefly.
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
Page 73
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
washing, shrouding and internment of his remains. This also
include the expenses of his dependents pending settlement of
estate.
iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower51 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
51
Opposite of Dowry for husband from wife in some parts of India.
Page 74
b) Give your comments with respect to the order of preference of
claims under Article 135 of the Muslim Code in relation to Islamic law.
With regard to the order of preference of claims under Article 135 of
the Muslim code, there are seven claims to the estate but under Islamic
law there are only four claims attached to it. When we further look and
understand it, Article 135 and those enumerated claims under Islamic law
is the same because the unpaid tax, unpaid dower, expenses for probate,
administration and other judicial expenses are considered to be part of
the debts of the decedent.
4. a) Give the four (4) impediments or disqualification to inheritance
(mawani-ul-irth) under Islamic law and explain each briefly.
The impediments or disqualifications to inherit are as follows:
i) slavery; It was one of the impediment to inheritance for the
reason that during the pre-Islamic Arabs, a slave is then
considered the property of his master and therefore, has no legal
right to inheritance. Fortunately, it was already abolished.
ii) Murder or homicide; It is also an impediment to inheritance when
someone causes the death of the decedent. It was also reported
that the prophet said that, the murder shall not inherit.
iii)Apostasy; those if a person is professing a religion of Islam but
change his religion to another.
iv)Difference of religion; it is again become an impediment to
inheritance on the basis of the tradition of the prophet that, the
two people belonging to two different faiths do not inherit from
each other.52
b) State the rule under Article 93 of the Muslim Code (PD1083) on
the disqualification to succeed. Please give your comment on whether
or not a non-Muslim parent or spouse could inherit under the Muslim
Code and by what mode of succession.
52
Arabani,2011 ed., p.604-608
Page 75
The following shall be disqualified to succeed:
i) Those who have intentionally cause directly or indirectly the
death of the decedent;
ii) Those who have committed any other act which constitutes a
ground for disqualification to inherit under Islamic law; and
iii)Those who are situated that they cannot inherit under Islamic
Law.53
Generally, under Islamic law, difference of religion is a bar from
inheritance. However, pursuant to the provision of the code of Muslim
Personal laws, by bequest by operation of law, a non-Muslim parent or
spouse, may inherit from his Muslim relatives. The law substantially
provides that, should the testator dies without having made a bequest in
favor or any child of his son who predeceased him, or who
simultaneously dies with him, such child shall be entitled to one-third
(1/3) of the share that would have pertained to the father if he were
alive. The parent or spouse, who is otherwise disqualified to inherit in
view of Article 93(c) shall entitle to one-third (1/3) of what he or she
would have received without such disqualification.54
5. Give three (3) general classifications of heirs and enumerate those
falling under each category.
i) Testamentary heirs which consist of legatee and universal legatee.
ii) Legal heirs consist of the sharers, residuaries, distant kindred,
acknowledge kinsman, and the public treasury.
53
Article 93, P.D.1083
54
Art. 107, P.D.1083
Page 76
iii)Mixed heirs, those if the decedent left a will and have a surviving
heirs.
6. a) Give the essential elements (arkhan) and requisites (surut) of
wasiya (will/bequest) under Islamic law.
The essential elements (rukn) of a will (wasiya) are as follows:
a) the testator must be legally competent being of major age, of
sound and disposing mind and is not expressly prohibited under the
Muslim Law to make a will;
b) It must be made freely and voluntarily and not in jest or under
compulsion, threat, duress or intimidation;
c) It must be made in a manner and form which sufficiently and
clearly show the intention of the testator regarding his desire to
bequeath by will;
d) The testator at the time of making the will must have properties
over which he can exercise control; and
e) It must be made in the presence of at least two competent,
credible and disinterested witnesses
The requisites of wasiya under Islamic law are as follows:
a) offer of the testator
b) acceptance of the legatee
c) shall take effect after the death of testator
b) Are there formal requisites for the validity of a will by a Muslim
under Islamic law? Explain briefly.
The Muslim law does not prescribe any particular form for the
making of wills. And no, specific wording is essential for making a will.
Any statement conveying the intention of gratuitous transfer (of property
Page 77
or its benefits) after the death of the testator is valid. It be made in
writing or orally.55
7. a) What are the essential elements of inheritance (arkhanuimirath) and explain each briefly.
The essential elements (rukun) of inheritance are the following:
a) Decedent; there must be a person who died.
b) Heirs; there must a legal heirs of the decedent who is entitled to
the property left by the decedent and not disqualified by law.
c) Property; those referred to the property to the property left by
the decedent which is to be divided to his heirs.
b) What are the essential conditions or requisites (surut al mirath) of
inheritance and briefly explain each.
The essential conditions or requisites (surut) of inheritance are as
follows:
a) The death of the decedent is ascertained; it must be prove that
the decedent is actually or presumptively died. In case of
presumptive death, there must be a death certificate.
b) The successor must be alive at the time of the death of the
decedent;
c) The successor must not be disqualified to inherit.( art.93,
P.D.1083).
c) Distinguish the two (2) concepts.
The distinction between the two concept is that, in the absence of
one of the essential elements, the distribution or partition of the estate
become null and void while in the absence of one of the essential
conditions or requisites it will fall under irregular partition.
55
Arabani, 2011 ed., p.632
Page 78
8. Hassana died intestate. She is survived by her husband, full
brother, one uterine sister and a consanguine brother. She left an
estate valued at P150, 000.00 and an obligation of about P10, 000.00.
Settle the estate of the decedent. Explain and justify your answer.
Estate: P 150,000 – P 10,000.00 = P 140,000.00
H
GB
US
CB
½
R
1/6
excluded
3/6
2/6
1/6
Therefore:
H = 3/6 ( P140,000.00) = P 70,000.00
GB = 2/6 ( P140,000.00) = P 46,666.66
US = 1/6 ( P140,000.00) = P 23,333.33
9. Rashid died intestate. At the time of his death, his wife was in the
family way. She was pregnant for about six (6) months. He survived by
his wife and posthumous child, father, mother, grandmother, full
brother, and full sister. He left an estate worth of P240, 000.00.
Distribute the estate of the decedent in the following manner. First let
us assume that the posthumous child is a son. Secondly, assume that
the child in the womb is a daughter. In both cases assume that the child
in the womb is born alive. Thirdly, suppose the sex of posthumous child
could not be ascertained, how would you settle the estate? Explain and
justify your answer.
Page 79
Step 1.
WC F
M
FB FS
W
S
F
1/8
R
1/6
3/24
17/24
FB
FS
excluded
4/24
Step 2.
W
D
F
FB
FS
1/8
1/2
1/6+R
3/24
12/24
4/24+5/24
3/24
12/24
9/24
excluded
Thus, if the sex of the posthumous child cannot be determined,
whatever is greater share, considering him as son and daughter shall be
reserved.
10. Abdullah is a salesman. He married Amina. After six months,
Amina was pregnant. Abdullah suspected Amina to be unfaithful to
him. He charged Amina of having a love affair with her former
boyfriend. Being always away on business he could not admit that he is
the father of the child in Amina’s womb. Amina denied the charges of
Abdullah. This resulted to their divorce by li’an. After nine months
Amina gave birth to a child and was named Hamza. Meantime,
Abdullah contacted serious illness which caused his death. But before
he died, he retracted his vow and recognized Hamza as his son.
Abdullah is survived by his son Hamza, his wife, Amina, his father Omar
Page 80
and his full brother Amir. Abdullah left an estate valued at P80, 000.00
and debts in the sum of P20, 000.00.
In this problem can Hamza inherit from his father Abdullah? How about
his mother? Distribute the estate of Abdullah. Explain and justify your
answer.
Yes. Hamza can inherit from his father because he retracted his
charge of adultery to his wife Aminah. However, Aminah, mother of
Hamza, cannot inherit to Abdullah since their mutual rights of inheritance
has already extinguish. Therefore the only left legal heir of Abdullah are
his son, Hamza and his father, Omar because his full brother will be
excluded. Thus:
S = R = 5/6 (P 60,000.00)= P 50,000.00
F= 1/6 = 1/6 (P 10,000.00) = P 10,000.00
2001 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. a) What does inheritance include under the Muslim Code (P.D.
1083)?
The law so provides that, the inheritance of a person included all
properties of any kind, movable or immovable, whether ancestral or
Page 81
acquired either by onerous or gratuitous title as well as all transmissible
rights and obligations at the time of his death and those that accrue
thereto before partition (article 92, P.D.1083).
b) Give at least two (2) examples of transmissible rights and
obligations of a deceased person. Explain each briefly.
Examples of transmissible rights and obligations of a deceased
person are:
a) obligation to support; the heirs is liable to the child of the
deceased such that of under the womb of his wife. Such as the law
substantially provides that, if , after the dissolution of the marriage, the
wife believes that she is pregnant by her former husband, she shall within
thirty days after she became aware of her pregnancy notify the former
husband or heirs. This implies that the heirs must be responsible enough
to the child, in the womb of his wife, left by the deceased.
b) Property rights; those refer to the property of the deceased that
subject to the inheritance.
2. a) What are the causes of inheritance under Islamic Law? Discuss
each briefly.
There are three causes of inheritance:
a) Blood relationship; those if a person died, his relatives by blood
like of his father, mother and other relatives by blood.
b) Marriage: those relative by affinity. In the sense that, upon
contracting a marriage, the mutual rights of inheritance arises.
c) The relation that exists between the slaves as his master who
freed him; should the slave be freed to his master, he has the right of
inheritance. However, it was already abolished as of this generation.56
56
Moctar, Haron factsheets, p.34
Page 82
b) What are the underlying reasons under Islamic Law why a male
inherit double the share of a female?
The following are among the reason why under Islamic law why a
male inherit double the share of female:
a) Male has a greater responsibility than the female in the sense that
he is bound to protect and secure his sister in times of trouble.
b) Male is entitled to give customary dower should he wish to
contract a marriage while female is entitled to receive customary dower
when someone wants to marry her.
c) Male are oblige to support his sister should their marriage was
dissolved.
3. a) What are the impediments or disqualifications to inherit under
P.D. 1083? Discuss each briefly.
The impediments or disqualifications to inherit under Presidential
Decree No. 1083 are as follows:
a) slavery; It was one of the impediment to inheritance for the
reason that during the pre-Islamic Arabs, a slave is then considered the
property of his master and therefore, has no legal right to inheritance.
Fortunately, it was already abolished.
b) Murder or homicide; It is also an impediment to inheritance when
someone causes the death of the decedent. It was also reported that the
prophet said that, the murder shall not inherit.
Page 83
c) Difference of religion; it is again become an impediment to
inheritance on the basis of the tradition of the prophet that, the two
people belonging to two different faiths do not inherit from each other.57
b) As a rule, an apostate cannot inherit under Islamic law. What is the
exception, if there is any? Support your answer.
Generally, under Islamic law, an apostate cannot inherit under
Islamic law since difference of religion is a bar from inheritance.
However, pursuant to the provision of the code of Muslim Personal laws,
by bequest by operation of law, an apostate may inherit from his Muslim
relatives. The law substantially provides that, should the testator dies
without having made a bequest in favor or any child of his son who
predeceased him, or who simultaneously dies with him, such child shall
be entitled to one-third (1/3) of the share that would have pertained to
the father if he were alive. The parent or spouse, who is otherwise
disqualified to inherit in view of Article 93(c) shall entitle to one-third
(1/3) of what he or she would have
received without such
58
disqualification.
4. Yusoph died leaving a gross estate worth P335,000.00. At the time of
his death, he was survived by the following relatives: a wife, mother,
mother’s mother, father, father’s father, daughter, son’s daughter, full
sister, consanguine sister, uterine brother and an adopted son. During
his lifetime, he borrowed P20,000.00 in favor of a friend. His unpaid
taxes amounted to P10,000.00 and P15,000.00 was spent for his funeral
expenses.
a) Who among the relatives are entitled to inherit and those who
could not? Give the basis.
57
Arabani,2011 ed.p.604-608
58
Art. 107, P.D.1083
Page 84
Those who are entitled to inheritance is the wife, the father,
Mother, Daughter and Son’s daughter. Those previously mentioned are
the heirs who cannot be excluded by anybody. And those who cannot
inherit are the father’s father, due to the presence of the father,
mother’s mother, also because of the presence of the mother Uterine
sister, Uterine brother and adopted son.
b) Compute and give the exact shares of those who could inherit.
W
F
1/8 1/6+R
M
D
1/6 ½
3/24 4/24
4/24 12/24
3/27 4/27
4/27 12/27
SD
estate:
1/6
P 335,000.00
P 20,000.00
4/24 =24/27 P 10,000.00
P 15,000.00
4/27 P 300,000.00
Therefore:
W = 3/27 (P 300,000.00) = P 33,333.33
F = 4/27 (P 300,000.00) = P 44,444.44
M = 4/27 (P 300,000.00) = P 44,444.44
D = 12/27 (P 300,000.00) = P 133,333.33
SD = 4/27 (P 300,000.00) = P 44,444.44
5. a) When is the right to inheritance deemed transmitted to the heir
or heirs of the decedent? Explain briefly.
The right to inheritance deemed transmitted to the heir or heirs of
the decedent from the moment of the death of the decedent. The right
Page 85
to succession of any heir who predeceases the decedent shall not be
transmitted by right of representation to his own heirs.59
b) Abdilla, a Muslim died intestate in 1970. What law shall govern
the distribution of his estate, Islamic law or the Civil Code of the
Philippines? Explain briefly.
Since Abdillah is a Muslim, his property shall be governed by Islamic
law. The law substantially provides that, the provision of this code shall
be applicable only to Muslim.
6. a) What are the different modes of succession in the light of P.D.
1083. Explains each briefly.
The different modes of succession under P.D. 1083 are as follows:
a) By will; a person may by will, executed in the manner or form
prescribed by law, provides for the disposition of his properties within
the limit set by this code and upon his death, his property shall thus be
disposed according to his will.
b) By operation of this code; when the deceased left no will or there
being a will but the same is declared invalid, then his estate shall pass to
his heirs or persons entitled there to, by operation of law in accordance
with the rules laid down under the code on legal succession.
c) By combination of both; when although the deceased left a will
but which does not provide for the disposition of all his properties, then
his estate shall be settled partly according to his will and as regard to his
other properties left after satisfying his will, they shall disposed by
operation of law in accordance with the rules on legal succession.60
59
Art. 90, P.D.1083
60
Arabani, 2011 ed., p 629
Page 86
b) State the order of succession under P.D. 1083. Explain each
briefly.
Order of succession under P.D. 1083 are as follows:
a) sharers; those whose shares are fixed and prescribed in the Holy
Qur’an.
b) Residuaries; those who are related to the decedent through male
link. They are entitled to the residue after the distribution of the fixed
shares of sharers.
c) In the absence of the foregoing, the Distant kindred; those who
are excluded as sharer due to their female link;
d) in default of the above, the acknowledge kinsman, universal
legatee, or public treasury, in that order.
7. Musa died intestate leaving an estate worth P240,000.00. At the
time of his death, he was survived by four (4) wives, two (2) sons and
two (2) daughters.
a) Compute and give the exact share of each.
4W +
2S
(1/8 +
+
2D
7/8
=
8/8 ) 6/6
+
14/48
=
48/48
56/192
=
192/192
(6/48
+
28/48
24/192
+
112/192 +
) 4/4
Therefore, the exact share of each:
4W =
wife
24/192 (P240,000.00)
=
P 30,000.00
@ P 7,500.00 /each
Page 87
2S = 112/192(P240,000.00)
/each Son
=
P140,000.00 @ P 70,000.00
2D = 56/192(P240,000.00)
=
P 70,000.00 @ P 35,000.00
/each Daughter
---------------P240,000.00
b) Suppose in the problem above, Musa was survived by three (3)
wives, two (2) sons and two (2) daughters, would your answer be the
same? Explain briefly.
No. The share of the each wife will be increased from P7,500.00 to
P10,000.00. The share of the sons and daughters are the same with the
above.
8. a) What are the different kinds or classes of residuaries in their
own right? Give each example.
The different kinds or classes Residuary in their own right are as
follows:
a) Male descendants of the decedent in the direct line; e.g. son
b) Male Ascendants of the decedent in the direct line; e.g. father
c) Full- blood or consanguine brother of the decedent and their male
descendants, however distant in degree; e.g. germane brother
d) Full- blood or consanguine paternal uncles of the decedent and
their male descendants, however distant in degree.
Page 88
b) What are the different kinds or classes of residuaries in
another’s right? Give each an example
The different kinds or classes of Residuary in another’s right:
a) Daughter’s surviving with the son of the decedent;
b) Son’s daughter surviving with their own brothers;
c) Full sisters surviving with their full brothers; and
d) Consanguine sisters surviving with their consanguine brothers
9. a) In what instance or instances, if any, may a testator give by will
all of his property? Explain briefly.
The testator may give all his property by will when there is no
surviving heirs. In the sense that, No one can claim his estate. Thus, if he
has left a child, he is still bound to follow the rules that it must not be
more than one-third of his property must be bequest by will.
b) May a testator bequeaths or devises a property which does not
belong to him? Explain briefly.
The testator cannot bequeath or devises a property which does not
belong to him. In fact, one of the essential elements of inheritance either
by the operation of the law or by will is that, the testator must have a
property of his own.
10. Haris, a member of the Philippine National Police (PNP), was
insured by the Government Service Insurance System (GSIS). In the
insurance policy, he designated his brother and sister as beneficiaries
omitting his wife and two (2) children. At the time of his death, he left a
house, three (3) parcels of land and the insurance proceeds and was
survived by all the persons mentioned herein.
Page 89
a) Who among the persons mentioned above are entitled to receive the
insurance proceeds? Give reasons for your answer.
All the mentioned such as his wife, brother, sister and two children
are entitled to receive the insurance proceeds. Though his brother and
sister as written in his beneficiaries, it does not mean that they are only
the person entitled the insurance. It just that, they are the one who are
authorize to claim it and they are bound to include it to the left property
of the deceased as mirath.
b) Who among the person mentioned above are entitled to inherit
the house and the three (3) parcels of land? Give reasons for your
answer.
All the mentioned such as his wife, brother, sister and two children
are entitled to the house and the three parcels of land in a way that the
amount of all estate of the deceased shall be added and shall be divided
to them according the corresponding shares mentioned in the code of
Muslim Personal Laws.
Page 90
2003 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1.
a) Define or explain the following terms:
a) Will
Will is a declaration where by a person is permitted, with the
formalities prescribed by law, to control the disposition after his
death of nor more than one-third of his estate, if there are heirs or
the whole of it, if there are no heirs or distant kindred.61
b) Testamentary waqf (waqf-bil-wasiya)
61
Art. 101, P.D.1083
Page 91
Testamentary waqf is and endowment for Islamic purposes to
take effect after the death of the donor (waqf-bil-wasiya) partakes
of the nature of a testamentary disposition (article 104, P.D.1083)
c) What are the essential elements (rukn) of succession?
The following are the essential elements of succession:
a) The existence of the decedent; those if there is a person who
died.
b) Presence of heirs; there must be a persons, who is related to him
either by affinity and consanguinity provided they are not
disqualified by law to inherit; and
c) Property or Estate of the decedent, those referred to the property
where by the heirs are entitled to inherit.
2. a) What are the causes of inheritance under Islamic Law? Discuss
briefly.
There are three causes of inheritance:
a) Blood relationship; those if a person died, his relatives by blood
like of his father, mother and other relatives by blood.
b) Marriage: those relative by affinity. In the sense that, upon
contracting a marriage, the mutual rights of inheritance arises.
c) The relation that exists between the slaves as his master who
freed him; should the slave be freed to his master, he has the right of
inheritance. However, it was already abolished as of this generation.62
b) What are the underlying reasons under Islamic Law, why a male
inherits double the share of a female?
62
Moctar, Haron factsheets, p.34
Page 92
The following are among the reason why under Islamic law why a
male inherit double the share of female;
a) Male has a greater responsibility than the female in the sense that
he is bound to protect and secure his sister in times of trouble.
b) Male is entitled to give customary dower should he wish to
contract a marriage while female is entitled to receive customary dower
when someone wants to marry her.
c) Male are oblige to support his sister should their marriage was
dissolved.
3. Musa died leaving gross estate worth P740,000.00. At the time of
his death, he was survived by the following relatives: (1) wife, (2)
father, (3) father’s father, (4) mother, (5) mother’s mother, (6)
daughter, (7) son’s daughter, (8) full sister, (9) consanguine sister, (10)
uterine sister, (11) uterine brother, and (12) an adopted son. During his
lifetime, he borrowed P20,000.00 from the Philippine Amanah Bank
which was not paid. He also made a will of P20,000.00 in favor of a
friend. His unpaid taxes amounted to P10,000.00 and P15,000.00 was
spent for his funeral.
a) Who are the heirs entitled to inherit and those are entitled?
Give the grounds.
The following are entitled to inherit:
a) wife
b) Father
c) Mother
d) Daughter
Page 93
e) Son’s daughter
The following are not entitled to inherit:
a) Father’s father; due to the presence of the father, he is totally
excluded from the inheritance.
b) Mother’s mother; thus the presence of the mother, she is totally
excluded from the inheritance due to the fact that nearest in degree
exclude the more remote.
c) Uterine Sister; when the father is present all the collateral lines
are totally excluded.
d) Uterine brother; when the father is present all the collateral lines
are totally excluded.
e) Adopted son
b) Give the exact shares of those who can inherit.
Estate:
P 740,000.00
P 20,000.00
P 20,000.00
P 10,000.00
P 15,000.00
P 675,000.00 (mirath)
W
F
M
D
SD
1/8
1/6+R 1/6
½
1/6
3/24
4/24
4/24 12/24 4/24 = 27/24
3/27
4/27
4/27 12/27 4/27 = 27/27
Page 94
Therefore:
W=3/27 ( P 675,000.00) = P 75,000.00
F= 4/27 ( P 675,000.00) = P 100,000.00
M=4/27 ( P 675,000.00)= P 100,000.00
D= 12/27 ( P 675,000.00)= P 300,000.00
SD=4/27 ( P 675,000.00)= P 100,000.00
4. a) What are the different modes of succession under P.D. 1083.
Explain each briefly.
The different modes of succession in the light of P.D. 1083 are as
follows:
a) By will; a person may by will, executed in the manner or form
prescribed by law, provides for the disposition of his properties within
the limit set by this code and upon his death, his property shall thus be
disposed according to his will.
b) By operation of this code; when the deceased left no will or there
being a will but the same is declared invalid, then his estate shall pass to
his heirs or persons entitled there to, by operation of law in accordance
with the rules laid down under the code on legal succession.
c) By combination of both; when although the deceased left a will
but which does not provide for the disposition of all his properties, then
his estate shall be settled partly according to his will and as regard to his
other properties left after satisfying his will, they shall disposed by
operation of law in accordance with the rules on legal succession.63
b) State the order of succession under P.D. 1083. Explain each briefly.
63
Arabani, 2011 ed., p 629
Page 95
Order of succession under P.D. 1083 are as follows:
a) sharers; those whose shares are fixed and prescribed in the Holy
Qur’an.
b) Residuaries; those who are related to the decedent through male
link. They are entitled to the residue after the distribution of the fixed
shares of sharers.
c) In the absence of the foregoing, the Distant kindred; those who
are excluded as sharer due to their female link;
d) in default of the above, the acknowledge kinsman, universal
legatee, or public treasury, in that order.
5. a) Enumerate the Qur’anic heirs (Ashab-ul-furud) and give their
respective shares in accordance with the Holy Qur’an.
The Qur’anic heirs (Ashab-ul-furud) are as follows:
a) The husband, if he survive with a child or children of the
deceased, he is entitle to forth otherwise, a half;
b) The father is entitled to one sixth
c) The grandfather also entitled to one sixth should he survive
without the father.
d) The wife, when the deceased leave no child, there share is fourth,
but if he leave a child, she shall get an eight.
e) The daughter. If two or more, there share is two-thirds of
inheritance; if only one, her share is a half.
f) The son’s daughter. Should she survived without a daughter, If
two or more, there share is two-thirds of inheritance; if only one, her
share is a half.
g) The mother. If the parent is the only heirs, she has a third, if the
deceased left brothers and sisters, the mother has a sixth.
h) The grandmother is entitled to one sixth should she survived
without the mother of the deceased.
i) The germane sister. . Should she survived without a daughter and
son’s daughter, If two or more, there share is two-thirds of inheritance; if
only one, her share is a half.
Page 96
j) The consanguine sister. Should she survived without a daughter
and son’s daughter, If two or more, there share is two-thirds of
inheritance; if only one, her share is a half.
k) The uterine sister. If only one she shall get sixth, if more than two
there share is third.
l) The uterine brother. If only one she shall get sixth, if more than
two there share is third.
b) Who are the Qur’anic heirs who can be excluded but cannot
exclude others? Give your reasons.
The Qur’anic heirs who can be excluded but cannot exclude others
are as follows:
a) The grandmother; they can be excluded by the presence of the
mother in the sense that, nearest in degree exclude the more remote.
b) The germane and consanguine sister, they can be excluded by the
presence of the father and son because Male ascendants and
descendants exclude the collateral.
c) The uterine sister and brother, the same that they can be
excluded by the presence of the father and son because Male ascendants
and descendants exclude the collateral.
6.
a) When does bequest by operation of law take place?
Under the provision of the code of Muslim Personal Laws which
substantially provides that, should the testator dies without having made
a bequest in favor or any child of his son who predeceased him, or who
simultaneously dies with him, such child shall be entitled to one-third
(1/3) of the share that would have pertained to the father if he were
alive. The parent or spouse, who is otherwise disqualified to inherit in
view of Article 93(c) shall entitle to one-third (1/3) of what he or she
would have received without such disqualification (art. 107, P.D.1083).
Page 97
b) Is the bequest by operation of law enshrined in Presidential
Decree No. 1083 an innovation of Islamic Law? Discuss fully your
answer.
Yes. because generally under the extreme Islamic law, a non-Muslim
shall not inherit from his or her relative who are Muslims, but since we
are living in a democratic country where in Islamic law is not totally the
governing rule, the P.D.1083 shall for equity and humanitarian
consideration gives a third of his original share if he/she is Muslim.
7. Abu married in accordance with Muslim rites and practices. Later
on, he married Susan, a Christian who was never converted to Islam.
Abu died. At the time of his death, he left some property and was
survived by his two (2) wives, and a son and daughters.
a) May Susan, the Christian wife, inherit? Why?
Yes. Susan can inherit to Abu by operation of the law which
substantially provides that,
should the testator dies without having made a bequest in favor or any
child of his son who predeceased him, or who simultaneously dies with
him, such child shall be entitled to one-third (1/3) of the share that would
have pertained to the father if he were alive. The parent or spouse, who
is otherwise disqualified to inherit in view of Article 93(c) shall entitle to
one-third (1/3) of what he or she would have received without such
disqualification (art. 107, P.D.1083).
b) Give the shares of those who can inherit. Give reasons.
2Wife
Son
2Daughters
1/8
R
[1/8
7/8] 3/3
[3/24
21/24] 2/2
Page 98
6/48
42/48
Therefore:
Each wife will get 3/8 , the son will 28/ 48 and the daughters will get
14/28.
8. Abdul and Amina got married. Two months after the marriage,
Abdul died leaving Amina in the family way. Thereafter, Amina gave
birth to triplets but only two (2) were alive at the time they were
completely separated from the mother’s womb because one already
died while still inside the mother’s womb. Assume that there is an
estate.
a) May the child who died before its complete separation from the
mother’s womb inherit? Explain briefly.
No. Because one of the conditions that a conceived child may
inherit is that he is born alive. The law substantially provides that, a child
conceived during the death of the decedent shall considered an heir
provided it be born later in accordance with Article 10; its corresponding
share shall be reserved before the estate is distributed. In connection
with Article 10, the law so provides, Birth determines personality but the
conceived child shall be considered born alive, however, briefly at the
time it is completely delivers from the mother’s womb.
b) May the two (2) children who were born alive inherit despite
the fact that their father was already dead before they were born?
Explain briefly your answer.
Yes. The two (2) children who were born alive may inherit despite
the fact that their father was already dead before they were born. The
reason behind is that they comply the condition given the P.D.1083 that
they must be born alive.
Page 99
9. a) A wife died leaving an estate. At the time of her death, she was
survived by her husband, father and mother. Compute and give their
respective shares.
F
M
H
R
1/3(Ri)
½
1/3(1/2) ½
2/6
1/6
½
3/6
b) A husband died leaving an estate. At the time of his death, he
was survived by his wife, father and mother. Compute and give their
respective shares.
Answer:
F
M
W
R
1/3(Ri)
¼
3
1/3(3)
¼
2/4
1/4
¼
10. a) May a will, holograph or formal, pass any property without
being probated in accordance with law? Discuss briefly your answer.
No. will, holographic or formal could not pass any proper without
being probated in accordance with law under the law which substantially
provides that, No will of any other kind, holographic or formal, shall pass
any property unless it is proved and allowed in accordance with this
code.64
64
Art.103, P.D.1083
Page 100
b) If a will is probated during the lifetime of the testator, is it
necessary to probate it again after the death of the testator? Discuss
briefly your answer.
Yes. A will must be probated it again after the death of the testator.
The reason behind is that, in order to assure that the will was not being
falsified and alter by the person handling thereof.
2006 SHARI’AH BAR EXAMINATIONS ON
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1. a) Define succession under the P.D. 1083 otherwise known as the
Code of Muslim Personal Laws of the Philippines.
Succession is defined under P.D. 1083 as a mode of acquisition
by virtue of which the estate of a person is transmitted to his in
accordance with this code (p.d. 1083, art.89)
b) In 2000, Abdullah borrowed from Hussien P50,000.00 evidenced
by a promisory note. In 2001, Abdullah died without paying the debt.
Abdullah left no property. He is survived by his son, Yusoph, who has
established a jewelry business in Greenhills. San Juan. Subsequently,
Hussien broughtan action for collection against Yusoph claiming that
since Yusoph is the only heir of Abdullah, he has inherited from the
Page 101
latter not only the latter’s property but also all of his rights and
obligations. Will the action prosper? Explain?
No. since the obligation of Abdullah to pay the debts is already
extinguished upon his death. Thus, the debt of a deceased person maybe
deduct to his property if he left as such otherwise, nothing shall be claim
by the debtor to the relatives of the deceased.
2.
a) Distinguish inheritance from succession?
Under the general principle of Muslim Law, the term inheritance is
generally understood as succession. However, the P.D.1083 defined
inheritance includes all properties of any kind movable or immovable
whether ancestral or acquired, either by onerous or gratuitous title as
well as , all transmissible rights and obligations at the time of his death
and those that accrue thereto before partition while succession as a
mode of acquisition by virtue of which the estate of a person is
transmitted to his in accordance with this code (p.d. 1083, art.89)
b) Mubarak made a will (wasiya) in the presence of two
competent, credible and disinterested witnesses. In Mubarak’s will,
Haron, his only son, will inherit a 1,000 square-meter parcel of land
situated in Marawi City. Haron was informed about the devise in the
will. In dire need of money, Haron sold his expected share in his father’s
estate to Baset. Subsequently, Mubarak died. Baset claimed ownership
over the 1,000 square-meter parcel of land. The administrator of the
estate of Mubarak disputed such Baset’s claim on the ground that the
deed of sale executed between Haron and Baset is not valid. Decide.
Under the law, a will must take effect at the moment of the death of
the testator because the testator has still right to revoke expressly or
impliedly his will. In the above mentioned case, the administrator is in the
right track. Because, the transactions of Harun and Baset is invalid.
3. a) Mustapha died leaving behind five sons, daughter, and his
widow as his heirs. During his lifetime, Mustapha incurred debts so
Page 102
heavily that may require sale of all his property. Three (3) of his sons
came to his rescue and proposed to pay the debts in order to preserve
the property. However, they paid the debts only with the end in view of
excluding the other two sons from the inheritance. The two (2) sons
executed waiver of their rights over the inheritance in consideration of
some cash and movable property. During their father’s lifetime, the two
(2) sons never questioned the validity of the waiver. Nonetheless, they
asserted ownership over their shares upon the death of their father.
a) Do these two sons have right over the estate of their father?
Explain.
No. The two (2) sons have no right over the property left
by their father because they executed a waiver in exchange of
some amounts and movable property, Nevertheless, during
the lifetime of their father, no one of those sons can
questioned him regarding their father’s disposing of his
property in any ways.
b) What are the bases of the Muslim Law of Inheritance?
The following are the sources of inheritance under Islamic Law:
a) The Holy Qur’an
b) Hadith
c) Ijma al-Ummah
d) Custom or usages
4. Alykhan is the son of Ibrahim. Alykhan who predeceased his father
left a son Omar. Subsequently, Ibrahim died.
a) Does Omar have a right to inherit from his grandfather by right
of representation? If so, how much share can be inherited? Explain.
Page 103
Yes. Omar have a right to inherit from his father by bequest of
operation of law which provides that, should the testator dies without
having made a bequest in favor of any child of his son who predeceased
him, or who simultaneously dies with him, such child shall be entitled to
one-third (1/3) of the share that would have pertained to the father if he
were alive.
b) Would your answer be the same if the one who predeceased
Ibrahim is his daughter? Explain.
No. When one who predeceased Ibrahim is his daughter, she cannot
inherit to his grandfather because the law did not give such opportunity
to her as such of the son.
Page 104
5.
a) What are the requisites of Islamic succession?
The essential conditions or requisites (surut) succession are as
follows:
a) The death of the decedent is ascertained; it must be prove that
the decedent is actually or presumptively died. In case of
presumptive death, there must be a death certificate.
b) The successor must be alive at the time of the death of the
decedent;
c) The successor must not be disqualified to inherit.( art.91,
P.D.1083).
b) Abu Ali died leaving a gross estate in the amount of P1,
500,000.00. His debts and funeral expenses amounted to P400, 000.00
and P200, 000.00, respectively. In his will, Abu Ali bequeathed
P500,000.00 in favor of his friend, Rasul.
1) Is the bequest in Abu Ali’s will valid? Explain.
No. because the will left by Abuali is more than 1/3 of his estate.
Thus, the said will can only be valid unless the other surviving heirs
ratified it.
2) Would your answer be the same if the amount of the bequest is
P300,000.00? Explain.
No. because, if the bequest is worth P300,000.00, it does not
exceed to the one-third rule of legacy by the testator.
6.
a) Explain succession by illegitimate child under P.D.1083?
Page 105
Under the law which substantially provides that, a child who was
the cause of the mother’s having been divorced by lian shall have mutual
rights of succession only with the mother and her relatives.
b) X died intestate survived by his wife, and two sons. The estate is
P2,400,000.00. How shall the distribution be made? Explain.
W
2S
1/8
R
[1/8
7/8] 2/2
2/16
14/16
W=2/16 (P2,400,000.00) = P 300,000.00
S1= 7/16 (P2,400,000.00) = P 1,050,000.00
S2= 7/16 (P2,400,000.00) = P 1,050,000.00
7.
a) What are the characteristics of a will (wasiya)?
The characteristics Ronsing page 13 of a will (wasiya) are as follows:
a) There must be a legator/testator who must be of major age and
disposing mind.
b) There must also a legatee whose favor a thing is bequeathed
c) that the legacy must not be more than one-third of the estate if
there are heirs, or the whole of it there is none;
c) It must have an executor named in the will to carry out the will
d) The will must be witness by at least two competent and
disinterested witnesses.
Page 106
b) A husband survived by his two (2) wives, one son and one
daughter. The estate amounted to P8,000,000.00. Compute the share of
the heirs.
2W
S
D
1/8
R
[1/8
7/8]3/3
[3/24
6/48
21/24]2/2
42/48
Therefore:
2W = 6/48 (P 8,000,000.00) = P 1,000,000.00
S = 28/48 (P 8,000,000.00) = P 4,666,666.67
D = 14/48 ( P 8,000,000.00) = P 2,333,333.33
8. a) What requisites must concur in order that a person can make a
will (wasiya)?
The testator at the time of making the will must be free, of major
age, of sound and disposing mind and in control of his property.
Otherwise, he is incapacitated to make a will.
b) A husband dies without a child. His only heirs are his wife and a
full sister. The estate is P5, 000,000.00. How shall the distribution be
made? Explain.
W = 1/8 = 1/8 = 1/8 (P 5,000,000.00) = P 625,000.00
GS = 1/2= 4/8 = 7/8 (P 5,000,000.00) = P 4,375,000.00
Page 107
The reason behind his full sister gets 7/8 and not a half is that the
residue left after the distribution of the sharers is given to her because
the wife is not entitled to the residue. The law substantially provides that,
if after distributing the portion of the shares, a residue is left in the
inheritance and there is no surviving residuary heirs, the residue shall
revert in its entirely to the one share or to all sharers in proportion to
their respective sharers. However, the husband and the wife shall not be
entitled to any part of the reverted portion as long as there are other
sharers and distant kindred (article 130, P.D. 1083).
9. a) X died, survived by a grandmother and two uterine sisters only.
The next value of his estate is P6, 000,000.00. Divide the estate of X.
Explain.
Since the only heirs is X’s grandmother and two uterine sister, they
will divide the estate according to their corresponding share because
they are all entitle to the residue , if any, since they are all legal heirs.
Thus;
TGM = 1/6 = 1/6 = 1/3 ( P 6,000,000.00 ) = P 2,000,000.00
2US = 1/3 = 2/6 = 2/3 ( P 6,000,000.00 ) = P 4,000,000.00
b) What are the formalities which are required for the execution of
a written will (wasiya)?
The Muslim law does not prescribe any particular form for the
making of wills. And no, specific wording is essential for making a will.
Any statement conveying the intention of gratuitous transfer (of property
or its benefits) after the death of the testator is valid. It be made in
writing or orally.65
65
Arabani, 2011 ed., p.632
Page 108
10. a) What is meant by the probate of will? Explain.
Probate of will is the process of verifying the legality of a will. Under
Islamic law, a will must be prove in presence of the two male competent
and disinterested witnesses.
b) What are the three (3) important questions which a probate
court can determine? Explain.
Among the three questions which a probate court can determine are
as follows:
a) Is the testator is not forced in making the will?
b) Is the will made attested by competent and disinterested
witnesses?
c) Does the will made is not falsified or altered?
2008 SHARI’AH BAR EXAMINATION
Page 109
SUCCESSION, WILLS AND ADJUDICATION OF ESTATES
1. a.) what are the essential elements (arkan) of inheritance? Please
discuss each briefly.
The following are the essential elements of inheritance:
i.
ii.
iii.
deceased person;
surviving heir(s) of the deceased person; and
property left or estate of the deceased person.
b.) enumerate with brief discussion the essential requisites
(shurut) of inheritance.
The essential conditions or requisites (surut) of inheritance are as
follows:
a) The death of the decedent is ascertained; it must be prove that
the decedent is actually or presumptively died. In case of
presumptive death, there must be a death presumption decree of
the court.
b) The successor must be alive at the time of the death of the
decedent;
c) The successor must not be disqualified to inherit.(Art.93,
P.D.1083).
c) Discuss the distinction of the two concepts.
In the absence of one of the essential elements makes the
distribution or partition of the estate become null and void while in the
absence of one of the essential conditions or requisites becomes
irregular.
2. a.) what are the charges or liens on the estate of the decedent in
the order of their preference? Please discuss each briefly.
Page 110
The following are the liens and charges attached to the estate of a
decedent in accordance with the code of Muslim Personal Laws of the
Philippines:
i. Unpaid taxes; those referred the tax required by the government
to pay.
ii. Reasonable funeral expenses; All money used in funeral shall be
deducted to the estate of the deceased.
iii. The expenses for probate, administration and other judicial
expenses; those referred to the financial expenses use in the
processes before the partition of the estate;
iv. The debts of the decedent; those referred to the money or
property borrowed by decedent when he is still alive.
v. The legacies to the extent of the disposable one-third; thus refer
to the will made by the testator which shall not be more than
one-third of his estate.
vi. Distribution of the shares among heirs; after all the deduction of
the claims attached to the estate of the decedent, the property
will be divided to the legal heirs (Article 135, P.D.1083).
vii. Unpaid dower; those referred to the dower, if not fully paid
before, during and after marriage.
The following are the liens and charges attached to the estate of a
decedent in accordance with Islamic law:
i) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or
pledges on specific properties used as guarantee or collateral for a
loan or debt.
ii) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/
expenses which consists of the fees paid or incurred in the
washing, shrouding and internment of his remains. This also
include the expenses of his dependents pending settlement of
estate.
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iii)All kinds of debts (aduyon al mutlaqah). These are debts incurred
prior to the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness, Imam Malik and Imam Shafii do not
make any distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-almaut) (death illness). Debts incurred in good health take preference.
Long term debts became due at the time of death of the decedent.
Dower66 (mahar) of a wife falls under this category.
iv)Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third of the estate after
deducting above charges, i,ii,iii.
v) Rights of heirs (al-haqul-waratha). This pertains to the rights of the
heirs over the remainder or the estate after deducting the
foregoing charges before distribution.
b.) Comment on the order of preference of claims under Article 135
of the Code of Muslim Personal Laws of the Philippines (P.D. 1083) in
relation to Islamic Law.
With regard to the order of preference of claims under Article 135 of
the Muslim code, there are seven claims to the estate but under Islamic
law there are only four claims attached to it. When we further look and
understand it, Article 135 and those enumerated claims under Islamic law
is the same because the unpaid tax, unpaid dower, expenses for probate,
administration and other judicial expenses are considered to be part of
the debts of the decedent.
3.
66
a.) Discuss the essential elements and requisite of a wasiya.
Opposite of Dowry for husband from wife in some parts of India.
Page 112
The following are the essential elements for the validity of a will
(wasiya) under Islamic law:
i) the testator must be legally competent being of major age, of
sound and disposing mind and is not expressly prohibited under
the Muslim law to make a will;
ii) It must be made freely and voluntarily and not in jest or under
compulsion, threat, duress or intimidation;
iii) It must be made in a manner and form which sufficiently and
clearly shows the intention of the testator regarding his desire
to bequeath by will;
iv) The testator at the time of making the will must have the
properties over which he can exercise control; and
v) It must be made in the presence of at least two competent,
credible and disinterested witnesses.
b.) what are three (3) kinds of wasiya under the Code of Muslim
Personal Laws of the Philippines? Please discuss each briefly .
Kinds of will (wasiya) under Presidential Decree No. 1083 are as
follows:
i)
ii)
iii)
Oral or nuncupative will, one orally made by the testator in a
manner that shows clearly the intention of the testator to
execute it in the presence of atleast two competent adult
Muslim male witnesses.
Written will personally written by the testator himself, or by
another under his personal, supervision and control, done in a
manner that shows clearly the intention of the testator to
execute it, in the presence of atleast two competent, credible
and disinterested adult male witnesses.
Holographic will, the term holographic will is described in the
following provision of the civil code, a suppletory law to the
Musllim code, as follows: “ a person may execute a holographic
will which must be entirely written, dated and signed by the
hand of the testator himself. It is subject to no other form, amd
be made in or out of the Philippines and need not be
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witnessed”. However unlike the holographic will under the civil
code, the holographic will prepared by a Muslim is under the
present article of the Muslim code requires that it be made in
the presence of atleast two competent, credible and
disinterested adult male witnesses (arabani 2011 ed.p.640).
c.) Can a minor represented by a guardian make a valid will? Please
explain.
No. a minor represented by a guardian cannot make a valid will. Thus,
the minor do not comply with the requirements of making a will. The law
says, no representation in any form.
4. a.) Discuss the requisites under which a posthumous child is
entitled to a share in the inheritance. Cite the basis under P.D. 1083.
The law substantially provides that a child conceived during the
death of the decedent shall considered an heir provided it be born alive.
Its corresponding share shall be reserved before the estate is distributed.
It also provides that birth determines personality but the conceived child
shall be considered born alive, however, briefly at the time it is
completely delivers from the mother’s womb.
b.) state the rule on fixing the share of a hermaphrodite (al-khunta
al-musakal) in inheritance.
The share in inheritance is based on the sex or gender of a
hermaphrodite whether male, or female or an undetermined. If it is a
male, he will inherit as a male; if female she will inherit as a female; if
undetermined, it will inherit the lesser share considering as a male or
female.
5. a.) ismail died leaving a will in favor of a charitable foundation. His
entire property is worth Php. 90,000,00. He has bequeathed the sum of
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Php. 40,000.00 in favor of the foundation. His wife, father and mother
survive him, settle the estate of Ismail. Please explain and justify your
answer.
F
M
W
R
1/3(Ri)
¼
3
1/3(3)
¼
2/4
1/4
¼
Therefore:
Father = 2/4 ( P 90,000.00) = P 45,000.00
Mother = ¼ ( P (90,000.00) = P 22,500.00
Wife = ¼ ( P (90,000.00) =P22,500.00
6. Abdu Samad died without leaving an heir. But he left a will
bequeathing his entire property to a charitable institution for the
purpose of building a school for the poor children in his town. His
property is worth Php 900,000.00 with unpaid taxes of Php 40,000.00
and funeral expenses amounting to Php 75,000.00. during the
settlement of his estate, two persons, A and B, appeared before the
probate court claiming their interest in the property of Abdu Samad. A
claimed that he is an acknowledged son of Abdu Samad, while B
claimed that he is the acknowledge brother. If you were the Judge, will
you allow the claims? How will you decide the case? Please justify your
decision.
Yes. Provided that they have a sufficient evidence to comply with
the requirements, that the acknowledgement is manifested by the Abdu
Samad’s acceptance in public that he is the father and brother whom
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they did not question it and their relation did not appear impossible by
reason of disparity in age. In the case at bar, the acknowledged son will
exclude the acknowledged brother, thus the only acknowledged son will
inherit the property after deducting the unpaid taxes, funeral expenses
and a one-third disposable from the property for the will.
Acknowledged son will get:
900,000.00 – 40,000.00 – 75,000.00 = 785,000 – 785,000 (1/3) =
P523,333.34
7. Abdul Karim divorced his wife Salima while he was in a state of
death illness (marad ul-maut), Abdul Karim later died while Salima was
observing idda. He left an estate in the amount of Php. 300,000.00, and
is survived by son Hamad and daughter Shalma.
a.) settle Abdul Karim’s estate.
W
S
D
1/8
R
[1/8
7/8]3/3
3/24
21/24
W = 3/24 (P 300,000.00) = P 37,500.00
S = 14/24 (P 300,000.00) = P 175,000.00
D = 7/24 (P 300,000.00) = P 87,500.00
b.) supposed Abdul karim died after the expiration of Salima’s
idda, will Salima be entitled to an inheritance? Please explain and
support your answer.
Page 116
Yes. Salima can inherit even after the expiration of the iddah. The
law substantially provides that, the husband who, while in a condition of
death-illness, divorces his wife shall not inherit from her, but she shall
have the right to succeed him even after the expiration of iddah (article
96, P.D.1083).
8. Jamel died intestate. He is survived by his son Malik, daughter
Hasniyah, mother and father, with a net estate of Php 600,000.00.
before Jamel died his son Malik denounced Islam to marry Carla, a
devout Christian, settle Jamel’s estate. Can Malik inherit from his father
on the ground that he remained a Muslim by heart, and that his
conversion to another faith was only for convenience so that he can
marry Carla?
S
+
D
+
M
+
+
1/6 +
F
Step 1:
R
12/18
8/18 +
8/54 as 1/3
+
4/18 +
3/18 +
3/18 +
+
1/6
3/18
3/18
46/54
Step 2:
4/18 +
3/18 +
3/18 = 10/18
4/10 +
3/10 +
3/10
(4/10
+
8/54 (10/10) +
3/10 +
184/540 +
3/10) 46/54
138/540 +
138/540 = 540/540
Therefore the share of:
Page 117
s (Malik) = 80/540 x
P600,000.00 =
88,889
d
= 184/540
x
P600,000.00 =
204,445
m
= 138/540
x
P600,000.00 =
153,333
f
= 138/540
x
P600,000.00 =
153,333
Under the Islamic law, Malik cannot inherit from his father Jamel
due to his denouncing Islam for whatever the reason in comfort or in
heart by intention or not. Difference of religion is a bar from inheritance.
However, he will be given one third what he would receive without such
disqualification for equity and humanitarian reason. Muslim Code
provides in Article 3 paragraph 3 that nothing herein shall be construed
to operate to the prejudice a non-Muslim.
9. Junaid died living a father, a mother, wife, his mother’s sister and a
paternal uncle. Junaid asset is valued at Php 240,000.00
a) Who are entitled to the inheritance and who are not? Please
justify your answer.
Those entitled to inheritance are the father, mother and wife in the
sense that they are all sharers in which their share has been fixed by the
Holy Qur’an and those who are not entitled to inherit are the mother’s
sister and paternal uncle, due to the mother’s sister cannot inherit
because she is a distant kindred and that, she can only inherit in the
absence of the sharers and residuary heirs, and the paternal uncle is
excluded in the presence of the father.
b) What is the share of each heir?
F
M
R
1/3(Ri)
W
¼
Page 118
3
1/3(3/4) ¼
2/4
1/4
¼
Therefore:
Father= 2/4 (P240,000.00) = P 120, 000.00
Mother= ¼ (P240,000.00) =P 60,000.00
Wife = ¼ (P 240,000.00) =P 60,000.00
10. Nasser went abroad and illegaly crossed into Iraq thinking he will
earn more working in the American military base in Baghdad.
Unfortunately, Nasser was declared missing at the height of the war in
Iraq. There was no information whether he died or was taken captive.
Five years passed and still his wife is received no information about his
whereabouts. The American government provided compensation in
dollars equivalent to Php 300,00.00 A petition was filed by his wife
before the Shari’ah court to declare Nasser dead for the purpose of
settling his estate. His heirs include the following; his wife two(2)
daughters, two (2) full brothers, two(2) full sisters and a sickly father.
I will grant his motion on the fact that it was already declared that
he was already dead. Although, the P.D. 1083 provides that he must wait
until the lapse of 10 years. It must be noted that in case the person died
in a danger circumstances, the court may presume that he already died
after the lapse of four years.
b)
W
2D
F
1/8
2/3
1/6 + R
3/24
16/24
4/24+1/24
Page 119
3/24
16/24
5/24
Therefore:
W = 3/24 ( P 300,000.00) = P 37,500.00
D1 = 8/24 ( P 300,000.00) = P 100,000.00
D2 = 8/24 ( P 300,000.00) = P 100,000.00
F = 5/24 ( P 300,000.00) = P 62, 500.00
Page 120
2011 SHARI’A BAR EXAMINATION
SUCCESSION, WILLS/ADJUDICATION AND SETTLEMENT OF ESTATE
1.
a.) Give and explain the different kinds of succession.
The different kinds of succession in the light of P.D. 1083 are as
follows:
a)By will; a person may by will, executed in the manner or form
prescribed by law, provides for the disposition of his properties within
the limit set by this code and upon his death, his property shall thus be
disposed according to his will.
b) By operation of this code; when the deceased left no will or there
being a will but the same is declared invalid, then his estate shall pass to
his heirs or persons entitled there to, by operation of law in accordance
with the rules laid down under the code on legal succession.
c) By combination of both; when although the deceased left a will
but which does not provide for the disposition of all his properties, then
his estate shall be settled partly according to his will and as regard to his
other properties left after satisfying his will, they shall disposed by
operation of law in accordance with the rules on legal succession
(arabani,2011 ed.p 629).
b.) Discuss nuncupative and holographic will, and how their due
execution be proved?
a) Oral or nuncupative will, one orally made by the testator in a
manner that shows clearly the intention of the testator to execute it in
the presence of at least two competent adult Muslim male witnesses
b) Holographic will, the term holographic will is described in the
following provision of the civil code, a suppletory law to the Muslim code,
as follows: “ a person may execute a holographic will which must be
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entirely written, dated and signed by the hand of the testator himself. It
is subject to no other form, and be made in or out of the Philippines and
need not be witnessed”. However unlike the holographic will under the
civil code, the holographic will prepared by a Muslim is under the present
article of the Muslim code requires that it be made in the presence of
atleast two competent, credible and disinterested adult male witnesses
(arabani 2011 ed.p.640).
2.
a.) Enumerate the order of succession, and explain each briefly.
Order of succession under P.D. 1083 are as follows:
a) sharers; those whose shares are fixed and prescribed in the Holy
Qur’an.
b) Residuaries; those who are related to the decedent through male
link. They are entitled to the residue after the distribution of the fixed
shares of sharers.
c) In the absence of the foregoing, the Distant kindred; those who
are excluded as sharer due to their female link;
d) in default of the above, the acknowledge kinsman, universal
legatee, or public treasury,
in that order.
b.) state the primary heirs of the decedent who cannot be excluded
to inherit, and who those cannot exclude another heir.
The primary heirs of the decedent who cannot be excluded to
inherit are:
a) husband
b) Wife
c) Son;
d) Daughter
e) Father
f) Mother
and those cannot exclude another heir is the husband and wife
Page 122
3. a.) what is the effect if there’s a doubt as to which of two or more
persons, who are called to succeed each other, died first?
The effect is they shall be presumed died at the same time. The law
substantially provides that if as between two or more person who are
called to succeed each other and there is a doubt as to each of them died
first. Whoever alleges the death of one prior to the other, shall prove the
same. In the absence such proof it is presumed that they died at the
same time and there shall be no transmission of right from one to the
other. However, the successional rights of their respective heirs shall not
be affected.
b.) Jafar and Jasmin, husband and wife, boarded on super Ferry
bound for General Santos City. In its route within the vicinity of
Romblon, they met strong typhoon Ondoy that struck the vessel and it
sunk, spouses Jafar and Jasmin died as a result. At the time of their
death, they left a conjugal estate valued Php. 3,000,000.00 and were
survived by the following relatives: (1) the father and mother of Jafar,
(2) mother and germane brother of Jasmin.
a. who are entitled to inherit from Jafar? Compute and give
their share.
A. The net conjugal estate of Jafar and Jasmin = Php 3,000,000.00
Those entitle to inherit from jafar are his mother and father. Thus,
jafar estate is Php 1,500,000.00
a) Mother =1/3(Php 3,000,000.00) = Php 500,000.00
b) father = 2/3 (Php 3,000,000.00) = Php 1,000,00
c. who are entitled to inherit from Jasmin? Compute and give their
share
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Those entitle to inherit from jasmine are his mother and Germane
brother. Thus, jasmine estate is Php 1,500,000.00
a) Mother =1/3(Php 3,000,000.00) = Php 500,000.00
b) Germane brother= 2/3 (Php 3,000,000.00) = Php 1,000,00
4.
a.) What are the sources of inheritance under Islamic Law?
The following are the sources of inheritance under Islamic Law:
a) The Holy Qur’an
b) Hadith
c) Ijma al-Ummah
d) Custom or usages
b.) give at least three (3) principal reasons why under Islamic Law,
a male inherits double the share of a female.
The following are among the reason why under Islamic law why a
male inherit double the share of female;
a) Male has a greater responsibility than the female in the sense that
he is bound to protect and secure his sister in times of trouble.
b) Male is entitled to give customary dower should he wish to
contract a marriage while female is entitled to receive customary dower
when someone wants to marry her.
c) Male are oblige to support his sister should her marriage was
dissolved.
5.) Zayda divorced her husband Muhaliddin by tafwid while she was in
a state of death illness (marad ul-maut). Zayda later died during her
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idda. She was survived by her husband Muhaliddin, her son Zaidin and
daughter Zulaika.
a.) did the divorce have any legal effect to the successional rights
of her husband, Muhailiddin? Explain.
The divorce did not have any legal effect to the successional rights of
her husband Muhaliddin because it did not alter their mutual rights of
inheritance during iddah period. The divorce by tafwid, though has the
same effect with talaq, it is submitted to refer to the dissolution of the
marriage bond. Paragraph 2 of Article 96, of the P.D. 1083 is explicit to be
applied to divorce pronounced by the husband while he is in the state of
death-illness, and silent when pronounced by the wife. Therefore, the
general rule will apply, that spouses have mutual rights of inheritance,
while the wife is observing her iddah.
b.) supposed that it was Muhaliddin who died while Zayda was
observing iddah, will she be entitled to inherit from her husband’s
estate valued at Php. 600,000.00. Please support your answer.
Yes, Zayda can inherit from her husband Muhaliddin and her divorce
notwithstanding, because their mutual rights of inheritance during iddah
period remains enforceable, and an heir to each other.
6.
a.) give three (3) causes that a bequest may be rendered invalid.
The three causes that a bequest shall render invalid are:
a) if the testator become insane and his insanity subsists till death;
b) If the Legatee died ahead of the testator;and
c) If the legacy is a specific thing and is destroyed before it accepted
by the legatee.
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b.) give the conditions when a legatee may qualify to inherit from
the testator.
A legatee is entitled to inherit under any of the following conditions:
a) That a legatee is not an heir of the testator;
b) That a legatee must be alive at the time of making the will and at
the moment of the death of the testator; and
That a legatee must not have killed the testator.
7. a.) explain briefly the extent of liability of the heir for the debts of
the decedent. Cite your basis.
Article 136 of P.D. 1083 states the extent of the liability of heir for
the debts of the decedent and that is, it shall not exceed his hereditary
estate.
b.) state the schools of law which the court takes into
consideration in the settlement and partition of the estate of a
decedent.
The court shall take into consideration of the school of law of the
decedent for the probate of his will or for the settlement of his estate. If
the decedent’s school of law or madhab is not known, the shafi’i schools
of law shall be given preference together with the rules of procedure in
the Shari’ah courts.
8. a.) Rucma died leaving and estate valued at Php. 600,000.00. at the
time of her death, she was survived by her husband Zacaria, mother
Razmia, two uterine brother, Razid and Razul, and full brother Rahman.
Compute and distribute their respective shares.
Rucma net estate = Php. 600,000.00
Page 126
a) Husband Zacaria= ½ (Php. 600,000.00) = Php. 300,000.00
b) Mother Razmia = 1/6 (Php. 600,000.00) = Php. 100,000.00
c) Uterine brothers ( Razid & Rasul) = 1/3 = Php. 200,000.00
d) Full brother (rahman) = 0
The full brother Rahman shall equally share with his uterine
brothers, Razid and Razul’s of the estate of their sister, Rucma.
Hence;
Uterine brother Razid 1/3( Php. 200,000.00) = Php. 66,666.66
Uterine brother Razul 1/3( Php. 200,000.00) = Php. 66,666.66
Full brother Rahman 1/3( Php. 200,000.00) = Php. 66,666.66
9. Mahmod died leaving his son Mohammad and daughter Maimona,
and his germane brother Musaraf. Before the settlement and
distribution of his estate valued at Php. 600,000.00, his son Mohammad
died, leaving his sister Maimona and his paternal uncle Musaraf.
a.) does double inheritance exist in this problem? Please explain.
Yes. There is a double inheritance in this problem upon the death of
Mohammad pending distribution and settlement of the estate of his
predeceased father, Mahmod. Consequently, the two estates are to be
merged or jointly probated for the settlement and/or distribution to the
heirs. In the problem Maimona has to inherit twice first, from the her
father, Mahmod and second from her brother, Mohammad.
b.) distribute the estate.
The estate of Mahmod valued Php. Should be divided to his heirs
son mohammad and daughter Maimona, 2/3 and 1/3 respectively.
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Hence, Mohammad’s share would be Php. 400,000.00 and Maimona’s
share would be Php. 200,000.00
The estate of Mohammad valued at Php. 400,000.00 should be
divided to his heirs, sister Maimona, as sharer, ½ of the estate = Php
200,000.00 and Paternal Uncle, Musaraf, as residuary = Php. 200,000.00
10. Mariano and Corazon are Christians, husband and wife. They have
three (3) children, one (1) minor son Mariano Junior, and the others,
their elder son Manuel and only daughter Cristina, are of age of
maturity, In 2010, spouses Mariano and Corazon have changed their
religion to Islam, and mutually re-registered their marriage with the
Shari’ah circuit registrar. Last april 22, 2011, Mariano died without a
will, but leaving a not estate valued Php. 1,000,000.00
a.) which law to govern for the distribution and settlement of the
estate of Mariano? Cite your legal basis.
The code of Muslim personal laws of the Philippines should govern
the distribution and settlement of the estate of Mariano. This is because
when Mariano and his wife jointly converted to Islam shall have the legal
effect to their marriage as if the same had been performed in accordance
with the provisions of the P.D.1083 as clearly stated in Article 178 of the
said code.
b.) who among the heirs of Mariano are entitled to inherit, and
who may not with him? Cite the basis under the provisions of P.D. 1083
or Islamic Law.
Mariano’s wife, Corazon and his minor son Junior are entitled to
inherit from the estate as sharer and residuary heir, respectively. Since
Mariano Junior is still minor, the provision of the P.D 1083 for difference
of religion to disqualify him to inherit cannot be applied. This is because
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that under Islamic law all born is Muslim, and shall become non- Muslim
only upon reaching the age of maturity.
The elder son Manuel and the daughter Cristina are disqualified to
inherit due their religion. The bequest by operation of law under Article
107 of P.D. 1083 on difference of religion is applicable only to spouses,
and cannot be applied to them. However, they will be given one third
what they would receive without such disqualification for equity and
humanitarian reason. Muslim Code provides in Article 3 paragraph 3 that
nothing herein shall be construed to operate to the prejudice a nonMuslim.
Page 129