SCHOOL OF SHARIA AND ISLAMIC STUDIES
DEPARTMENT OF LAW AND SHARIA
COURSE TITLE:
ISLAMIC LAW OF SUCCESSION- WILL AND ENDOWMENT
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Introduction
The ultimate owner of all properties is Allah. This becomes very clear to one
when one is dead. Death is definitely inevitable. Every person shall taste it. The Qur’an says:
(Every soul shall taste death).1 After one’s death, the real Owner (i.e. Allah) takes control of
one’s property and this is shared among one’s heirs based on the divinely-fixed shares as
contained in the holy Qur’an. A person’s property includes all the property he leaves behind
after his death such as money, clothes, cars, houses, jewelry, ring to mention but a few.
The Religion of Islam
Islam covers all aspects of life, be it social, economic, moral or political. It leaves no stone
unturned in relation to the life of man. Allah says: “We have not neglected in the Book a
thing. Then unto their Lord they will be gathered” (Q 6: 38). The Glorious Qur’an, contains a
number of different rights and restrictions particularly on matters affecting heirs. In the Qur’an
Allah also says: (Q4:7-13)2 and Q4:176-177)3 give specific injunctions as regards inheritance.
However, some other verses refer to the issue of inheritance indirectly or broadly. Therefore, a
dead person or his heirs are not allowed to dispose the totality of his wealth or estate according
to his personal wishes alone. This is because man is guided through the Qur’an on how he can
acquire and dispose wealth. Proper distribution of wealth among heirs is a form of ‘ibādah
(worship). Therefore, efforts must be made to seek the knowledge or the assistance of experts,
in the administration of inheritance.
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- Quran- 3-185, 21-35, 29-57.
-“ 7. There is a share for men and a share for women from what is left by parents and those nearest related, whether the
property be small or large — a legal share. 8. And when the relatives and the orphans and Al‑Masākīn (the needy) are present
at the time of division, give them out of the property, and speak to them words of kindness and justice. 9. And let those
(executors and guardians) have the same fear in their minds as they would have for their own, if they had left weak offspring
behind. So, let them fear Allāh and speak right words. 10. Verily, those who unjustly eat up the property of orphans, they eat
up only fire into their bellies, and they will be burnt in the blazing Fire! 11. Allāh commands you as regards your children’s
(inheritance): to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is
two‑thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of inheritance to each if the deceased
left children; if (the deceased left) no children, and the parents are the (only) heirs, the mother has a third; if the deceased left
brothers (or sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have
bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit;
(these fixed shares) are ordained by Allāh. And Allāh is Ever All‑Knower, All‑Wise. 12. In that which your wives leave, your
share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies
that they may have bequeathed or debts. In that which you leave, their (your wives) share is a fourth, if you leave no child; but
if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or
debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother
or a sister, each one of the two gets a sixth; but if more than two, they share in a third, after payment of legacies he (or she)
may have bequeathed or debts, so that no loss is caused (to anyone). This is a Commandment from Allāh; and Allāh is Ever
All‑Knowing, Most‑Forbearing. 13. These are the limits (set by) Allāh (or ordainments as regards laws of inheritance), and
whosoever obeys Allāh and His Messenger (Muḥammad ) will be admitted to Gardens under which rivers flow (in Paradise),
to abide therein, and that will be the great success.” Al-Quran.
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- “ 176. They ask you for a legal verdict. Say: “Allāh directs (thus) about Al‑Kalālah (those who leave neither
descendants nor ascendants as heirs). If it is a man that dies leaving a sister, but no child, she shall have half
the inheritance. If (such a deceased was) a woman, who left no child, her brother takes her inheritance. If there are two sisters,
they shall have two‑thirds of the inheritance; if there are brothers and sisters, the male will.” Al-Quran.
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The Importance knowledge of Inheritance (Islamic Law of Succession)
Islamic law of inheritance is known as ‘ilmul farā’iḍ or ‘ilmul mīrāth: meaning the knowledge
of inheritance or the knowledge of succession. Both refer to the knowledge needed before one
can expertly share the estate of a deceased person to its beneficiaries. Inheritance and its
knowledge are so important that both the Qur’an and Hadith provide clear injunctions on how
a dead person’s property should be shared.
In fact, the Prophet did not only consider it to be half of knowledge, he also encouraged people
to learn it when he said: “O people! Learn farā’iḍ (knowledge of Inheritance). It is half of
knowledge”. ‘Ilmul farā’iḍis also important in the sense that it is a way of alleviating poverty.
It raises the living standard of its beneficiaries.
It makes a person realise the reality of life in the sense that his wealth is shared to his
immediate family and possibly to his extended ones including those people that did not give
him helping hands when he needed them. Such persons may be one’s wives or husband. They
may also be one’s children. It is therefore necessary for one to do what is most beneficial with
one’s wealth before one passes on. The reality that while one accounts for acquisition of
wealth, some others should freely inherit and benefit from it on one’s death, is sufficient to
curb acquisition tendencies particularly through unlawful means.
The allotment of one’s properties to others ought to caution one to limit one’s inordinate lust
for wealth which Allah had allotted to others at one’s death.
Abdullah B. Mas’ud reported that the prophet asked me of his companions: “Who among you
loves his heirs’ wealth more than his own?” Their reply was that none of them loved his
heirs’ wealth more than his own. The Prophet then Said: “Know that none among you that
do not prefer his heirs wealth to his own.”
Your wealth is that which you send forth (as charity etc), and your heirs’ wealth is that which
you leave behind”. Therefore, this knowledge encourages one to be generous and proactive.
One does not need to wait till the time when one is experiencing the pangs of death before
doing good acts such as giving charity, helping the needy etc.
The Prophet was also reported to have advised against the delay of charity till the point of
death. Those that are hale and hearty are encouraged to stretch their cloth when the sun is
shining. He said: “The best type of charity is that which you give when you are healthy and
needful of funds, fearing poverty and hoping for wealth. Do not postpone it till when your
soul reaches your throat. You then say, “Give so much to so and-so, and so much to so-andso. Verily, by then, so-and-so had already gotten the much”. If a person is conscious of the
Day of Reckoning, and he is taking account of how he amasses wealth, he would avoid
corruption and allied offences. It does not make sense to commit sins in the process of
acquiring wealth, which on the long run will be left for others to enjoy while one faces the
consequence of the illegitimate acquisition, one would know that one is accountable to Allah
on the Day of Judgement based on the Hadith of the Prophet which says: “A human being’s
feet will not depart the presence of his Lord on the Day of Resurrection, until he is questioned
about five things His lifetime – how he spent it? His youth (his body) - how did he utilise it?
His wealth -how did he earn it and how did he spend it? And what did he do in regard to what
he knew? As regards its importance, the Prophet exhorted people to learn and teach it the
knowledge of inheritance. He also predicted that there would be chaos in any society that
abandons it. Abdullah b. Mas’ud said the prophet (PBUH) said: “Learn the knowledge and
teach it to the people. Learn the mirath (law of succession) and teach it to the people, learn
the Qur’an and teach it to the people.“ (Sunan ad-Dārimi).
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Dignity of Labour
In Islam property or wealth is acquired through three lawful ways. One, one may acquire
wealth through donations or gift Hibah . Islamic concept of gift is different from the concept of
gift in other cultures. Two, it may be acquired through mirath (inheritance) and lastly, it may
be gotten through one’s effort i.e. the reward for one’s effort. There is dignity in labour in
Islam. In fact, the Prophet specifically praised the acquiring of wealth through one’s sweat. He
said: “That one of you takes his rope and goes to the mountain and brings back a bundle of
wood on his back and sells it, so through that Allah save his honour. That is better for him
than begging, whether they give him or not”. He also said: “Never has any one eaten better
food than what he eats from work done by his hands”. The implication of these traditions of
the prophet is that if one acquires wealth through lawful means one would enjoy such wealth,
which would not serve as a barrier for him in entrance to al-Jannah (Paradise).
As good as donation is, a person should not accept it from a person whose source of wealth is
unlawful. If a person is conscious of knowledge of mirath, he would not acquire wealth
through unlawful means. The Qur’an constantly reminds man of his return and account
to Allah. “And fear the Day when you will be returned to Allah. Then every soul will be
compensated for what it earned and they will not be wronged”.(Q 2: 281).
The Distributable Wealth
It must be mentioned that not all the wealth of a person is acceptable for inheritance. The illgotten part of the wealth if it is known is not distributable in Islamic law of inheritance. The
ill-gotten part should be given to the poor.
However, the deceased should not expect rewards from the sadaqah because “Allah is pure
and he will not accept sadaqah that is impure.” Al-hadith.
But if heirs do not know the part of wealth that is ill-gotten, there is no sin on them.
Confirmation of Death of the Person as a Condition for Inheritance
Before a person is inherited, he must be confirmed dead. The confirmation may be done by a
doctor or through the experience of elderly people. It is not allowed to inherit a living person.
Even when a person is missing, his or her property cannot be inherited until the expiration of a
period long enough for the expiration of his/her life-span or a period long enough to presume
that he is dead depending on the circumstances of his/her missing.
The Shares and the Principle of Fairness
Allah has given each heir his share. Therefore, no heir should take or be given more than his
divinely-fixed share. If an heir should take more than his share, he is like a person usurping the
rights of an orphan. He is eating nothing but Hell. The implication is that he would be cast into
Hell fire on the Day of Judgement. Even if one fasts through one’s lifetime and prays all the
five daily prayers throughout his lifetime, he would be punished on the Day of Reckoning for
usurping the rights of other heirs. Usurpation of the rights of other heirs is a serious sin, it is a
great transgression. This will be made known to such a person on the day when he would be
asked to read the book of his deeds. On the day he would say which type of book is this that
recorded both small and big sins “And the record (of deeds) will be placed (open), and you
will see criminals fearful of that within it, and they will say, “Oh, woe to us! What is this
book that leaves nothing small or great except that it has enumerated it? And they will find
what they did present (before them).And your Lord does injustice to no one” (Q18:49).
Violation of the divine laws of inheritance attracts heavy punishment. In the same vein, no heir
should also be given less than his rights. Every heir must be adequately catered for. An heir is
however allowed to give out his or her own share as charity.
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If a person should be given more than his heir and he wants to be saved from the wrath of
Allah, he should reject or give the excess to the person whose shares have been taken. Nobody
should be wronged. “You do no wrong, nor are you wronged” (Q2:279). There must be
fairness to every heir. Otherwise, the wrong-doers would not escape Allah’s punishment on the
Day of Judgement.
LEGITIMATE MEANS OF ACQUIRING WEALTH IN ISLAM
Introduction
To eat from one’s labour is praised by the Prophet. This shows the importance of the source of
wealth in Islam. When property is being acquired, one should be able to take into
considerations the purpose of life (i.e to worship Allah). If this is well understood, one will be
careful in the process of wealth acquisition.
Property and its Ultimate Owner
Property is referred to as māl (plural amwāl). Allah is the creator of everything. In fact, His
divine attributes of creation are seen in all living and non-living things He said, “Our Lord is
He who gave each thing its form and then guided (it) Q20:50 On the issue of ownership,
Islam affirms that the ultimate owner of everything is Allah. The Quran Says: “To Him belong
what is in the heavens and what is on the earth and what is in between them and what is
under the soil.” Q20:6
In this verse, Allah tells us that He is absolute owner. This verse carries a comprehensive
definition of everything we can conceive of. It mentions all that is in heaven, on earth, in
between, or within the bowels of the earth. Therefore, man is never a real owner, but a trustee.
The Quran says:( Q57:7) “Believe in Allah and His messenger and spend out of that in
which He has made you successive inheritors (trustees) for those who have believed among
you and spent, there will be a real reward”.
Private Ownership of Property in Islam
The Qur’an attributes property to man to foster progress among them. The attribution of
property is contained in the Quran. (Q2:188)1.
The examples of those who spend their wealth in the way of Allah and other verses related to
man’s ownership are contained in the Quran: (Q2:267)2, (Q4:5)3, (Q47:36)4 etc.
In many verses of the Quran, man is urged to spend in the way of the original Giver, Allah.
Who is it that would loan Allah a goodly loan so He may multiply it for him many times over?
(Q2:245)5.
In many verses of the Quran, man is urged to spend in the way of the original Giver, Allah.
Who is it that would loan Allah a goodly loan so He may multiply it for him many times over?
(Q2:245)6. Man should see himself as a trustee who holds everything he has on behalf of
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-“And do not consume one another’s wealth unjustly or send it (in bribery) to the rulers in order that (they might aid) you to
consume a portion of the wealth of the people in sin, while you know (it is unlawful)."
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-“O you who believe! Spend of the good things which you have (legally) earned, and of that which We have produced from the earth
for you, and do not aim at that which is bad to spend from it, (though) you would not accept it save if you close your eyes and tolerate
therein. And know that Allāh is Rich (Free of all needs), and Worthy of all praise.”
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-“And give not to the foolish your property which Allāh has made a means of support for you,(1) but feed and clothe them
therewith, and speak to them words of kindness and justice.”
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-“The life of this world is but play and pastime; but if you believe (in the Oneness of Allāh — Islāmic Monotheism), and fear Allāh,
and avoid evil, He will grant you your wages, and will not ask you your wealth”
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-“Who is he that will lend Allāh a goodly loan so that He may multiply it to him many times? And it is Allāh that decreases or
increases (your provisions), and to Him you shall return.”
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-“Who is he that will lend Allāh a goodly loan so that He may multiply it to him many times? And it is Allāh that decreases or
increases (your provisions), and to Him you shall return.”
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Allah. Man should surrender his right to Him and so His wish. It is when a person believes that
the wealth he has amassed is absolutely his, that he finds it difficult to spend it. But if he is
convinced that all his properties are not ultimately his own, he would readily transfer some the
property in his custody to the owner by spending it to those people that deserve it. He will not
hoard it instead it will be spent in His cause. Allah warns man not to lose his focus so as to
gain His pleasure. This explains why on death of man, Allah, the ultimate owner legislates on
the redistribution of the wealth through inheritance. Allah Says: “Say (O Muhammad), “if
your fathers, your sons, your brothers, your wives, your relatives, wealth which you have
obtained, commerce where you fear decline and dwelling with which you are pleased are
more beloved to you than Allah and His messenger and Jihad (i.e. striving) in His cause,
then wait until Allah executes His command. And Allah does not guide the defiantly
disobedient people.” (Q9:24).
So, it is when the conviction that their worldly possessions belong to them and not to Allah,
and that they are not holding them only in trust that they find it extremely difficult to spend in
the cause of Allah. But if they are totally convinced) that they own nothing and that their
worldly possessions belong to Allah they would be able to spend in Allah’s cause.
Three ways of Acquiring Wealth in Islam
As mentioned earlier, in Islam property can only be legitimately acquired through earning
work, inheritance and gift).. It should be noted that earning work, may be
through salaries, paid jobs, self-employment, proprietorship etc. Whatever may be the case the
sources of wealth must be Sharī‘ah compliant. It means it should not be from unlawful means
such as brewery, prostitution, armed robbery and kidnapping. It is allowed for both males and
females to work. The Quran says: “men shall have the benefit of what they earn and women
shall have the benefit of what they earn.” (Q4:32). It must be mentioned that Islam does not
discourage people (males and females) from becoming very rich even to the extent of being
millionaires or multi-billionaires, but the emphasis is on the source of wealth and the manners
of spending. Therefore, no limitation is placed upon the property which an individual may
acquire provided it is not sourced illegitimately.
Acquisition of wealth through unlawful means is discouraged. Many Quranic verses such as
(Q4:29)1 and (Q2:188)2, speak against unlawful means of getting wealth. Allah says: “O you
who believed, do not consume one another’s wealth unjustly but only (in lawful) business by
mutual consent. And do not kill yourselves (or one another). Indeed, Allah is to you ever
merciful.” (Q4:29). The following Quranic verses also speak against fraudulent means of
acquiring wealth(Q2:188,) (Q4:58,) (Q5:33,38), (Q2:219), (Q5:90). In Islam, dignity of Labour
is given priority as has earlier been explained.
The wisdom of inheritance:
Inheritance is a natural system, as evidenced by the fact that most nations, ancient and modern,
have adopted it, as modern nations have recently approved it, except for Russia. Inheritance is
a necessary system to motivate people to work hard and toil in life, in other words: it is
necessary to stimulate economic activity in people, and this is what most sociologists see, and
only socialists have deviated from it.
Islamic law is among the laws that adopted the inheritance system, and God revealed a
detailed and limited law that addressed the persons of the heirs and the amounts of their shares,
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-O you who believe! Eat not up your property among yourselves unjustly except it be a trade amongst you, by mutual consent. And
do not kill yourselves (nor kill one another). Surely, Allāh is Most Merciful to you(1).
2
--“And do not consume one another’s wealth unjustly or send it (in bribery) to the rulers in order that (they might aid) you to
consume a portion of the wealth of the people in sin, while you know (it is unlawful)."
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so that if the person who is prevented from inheritance knows that his prevention comes from
heaven, his soul will be reassured and he will be satisfied with God's judgment. It is not the
same if the matter of inheritance is left to people to judge, as this will be a source of
disturbance and discord. A follower of the law of inheritance sees that it is based on rules and
principles, which can be limited to the following: 1- Love. 2- Companionship. 3- Support and
guardianship. 4- Sympathy.
Therefore, the inheritance was allocated to a specific group of relatives, who are:
1- Those who have the greatest share of his love, such as children.
2- Those who accompanied him and mixed with him in life for the longest time, such as
his wife.
3- Those whom he was proud of, and relied on to defend him if he needed such defense,
such as the agnates.
4- Those with whom he had sympathy and compassion throughout his life, and they are
not the heirs. Therefore, it was arranged the heirs, and made this arrangement based on
the following rule, which is: "The heir takes the place of the deceased in guardianship,
and preserves the family name." He gave precedence to the sons over the fathers,
because the son taking the place of his father is the natural situation upon which the
world is built. Future generations succeed present generations, just as present
generations succeeded past generations. However, giving precedence to the son over the
father is reinforced by another wisdom, which is that if the deceased were asked: Where
to put his money, he would not hesitate to give it to his son over his father.
As for taking the place of the deceased after those we mentioned, of sons and fathers, it is the
class of brothers and those in their meaning who are like the arm of the paternal uncles,
therefore, their rank in the agnatic lineage was made later than the two previous ranks, just as
the rank of paternal uncles was made later than that of the brothers therefore, reasons for
inheritance among the pre-Islamic people were three:
The first is lineage: which is specific to men who ride horses and fight enemies, and the weak,
the child and the woman, have nothing from it.
The second is adoption: a man would adopt someone else’s child and inherit from him, and he
would have other rulings of the true religion. Allah (God) has invalidated adoption with verses
from Quran (Q33:4), and the Prophet - peace be upon him - carried out that with that difficult
work, which is marrying the divorced wife of Zaid bin Haritha, whom he had adopted before
Islam (Q33:37).
The third is the oath and covenant; A man would say to another man: My blood is your blood
and my destruction is your destruction, you inherit me and I inherit you, you seek by me and I
seek by you, so if they pledged to that and one of them died before the other, the living one
would have what he stipulated from the money of the deceased. As for Islam before the
revelation of the verse of inheritance, it made inheritance first by migration and brotherhood,
so the emigrant would inherit the distant emigrant, and no one but the emigrant would inherit
him even if he was close. The Prophet - peace be upon him - would make brothers between
two men so that one would inherit the other and this, that were abrogated, and the matter was
settled among Muslims after the revelation of the provisions of inheritance that the reasons
for inheritance were three: lineage, marriage, and loyalty. Then Islam removed the injustice
that was attached to women in the pre-Islamic era, as they would not inherit except those who
carried the sword and defended the homelands. When Islam came, it raised the status of
women and elevated their value, and gave them the right to inheritance just like men. Rather, it
emphasized this right and made it as if it were an accepted rule, guided by Allah the Almighty
saying: {Allah instructs you concerning your children: for the male, what is equal to the
share of two females} (Q4:11). Allah Almighty chose this expression to invalidate what was
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the case in the days of ignorance (pre-Islamic era), which prevented women from inheriting.
However, when He (Allah) granted her this right, He made her share in the inheritance half the
share of the male who is closest to her in kinship. This is what wisdom requires and is
appropriate to the role of both men and women in life, because Allah Almighty distributed the
tasks of life between men and women, so He created men to struggle and strive and made
them.
A shepherd and protector of the family, bearing its material and moral burdens, and making
the woman the manager of the home and the one responsible for managing and caring for the
children. With this division and distribution, life is organized and its affairs are straightened
out. This division has required that the woman not be burdened with spending on herself, but
rather her spending is made the responsibility of her father. If she loses her breadwinner or is
divorced, the right to spend returns to her guardians. In all her circumstances, she is sufficient
in terms of her expenses; out of mercy for her femininity and the weakness of her structure,
and in appreciation of the honor of her position in the human community.
It is not in the interest of women, nor in the interest of families, for women to be equal to men
in inheritance, because that means that do women enter the field of work and struggle in life on
an equal footing with men. As long as her share of the inheritance is equal to the share of men,
as it is unreasonable for her share of inheritance to be like the man's and then she demands that
the man spend on her and protect her. Moreover, if the girls get married, they will have enough
money from their husbands to compensate for their deficiency, and if they do not get married,
it is most likely that they will be in the care of their brothers and will not have children to
spend on them.
The wisdom behind this, as mentioned in the case of the mother’s children, is that He (Allah)
made their males and females equal in inheritance. The origin of this is that the connection
between them and the deceased is due to the feeling of compassion arising from the maternal
connection alone. These are some of the rules of inheritance, and it is not difficult for the
human mind to seek a reason, and a reason for every rule, even though the basis for it is
contentment with what Allah (The Most Highest) has apportioned and approved for His
servants, and He is the most just of apportioners and the wisest of judges. If some of the
servants exceed this division and scheme to distribute their wealth in other ways, then this is
nothing but a rejection of what Allah has legislated and a deviation from the straight path.
Even if the owner has the freedom to dispose of his wealth, giving to whomever he wants and
depriving whomever he wants, this apportioner should know that by his action he would create
enmity and cause his heirs to be inherit enmity and hatred. The Lawgiver is very keen on
maintaining kinship ties and uniting families; thus, the nation will be united and strong.
Status of the knowledge of succession:
The subject of inheritance occupies a high position among the subjects of Islamic law, and a
lofty status that was not limited to the attention of Muslim authors and their dedication to
writing about it, but rather the caliphs themselves since the time of the Messenger of Allah may Allah bless him and grant him peace - paid it a portion of attention. It was narrated that:
Omar - May Allah be pleased with him - went to Sham in the year 18 AH to teach people the
knowledge of inheritance.1
First: Because most of its rulings are final rulings that cannot be appealed or overturned;
because they are distributed by the All-Wise, All-Knowing Who knows what is good for souls
and what is bad for them.
1 -Ibn al-Athir,2:237.
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Second: Because it deals with the affairs of life, its spirit, its pillar, and the active element in
it, which is money.
Third: The method of inheritance shows us the relationship between individuals and the
government on the one hand, and shows us the relationship between family members on the
other hand. Inheritance in Islam, for example, indicates the direction that Islam aims for and
calls for in its entirety, which is a direction that suggests fair socialism that is keen on
distributing wealth in a way that indicates the degree of solidarity in families between close
relatives and distant relatives in relation to others. Even the obligation of maintenance between
relatives is similar to inheritance in many cases, based on the principle of loss and gain.
Rather, from the laws of inheritance, we can pass judgment on the nation, from which we
know whether it is military, industrial, agricultural, or other. Perhaps what was presented will
guide us to the secret of the saying prophet – may peace be upon him: "Learn the inheritance
laws and teach them to people; for they are half of knowledge."
Impediments to Inheritance:
The impediments to Inheritance are three: slavery, murder, and difference of religion.
The first is slavery: which is a legal disability that occurs in a person, caused by disbelief. A
slave does not inherit or inherited from, and does not exclude.
A partial slave inherits or inherited from, and he excludes to the extent of his freedom.
The second is murder: which necessitates; retaliation, blood money and expiation. What does
not is not.
Third: Difference of religions. A Muslim does not inherit from a non-Muslim except through
loyalty, and a non-Muslim does not inherit from a Muslim except through loyalty. Otherwise,
if a non-Muslim converts to Islam before the division of the estate, then he inherits to
encourage him to Islam.
Most scholars have said that difference of religions is an absolute impediment to inheritance,
whether the inheritance is through kinship or loyalty, and whether the non-Muslim converts to
Islam before the division of the estate or not. Based on the generality of the hadith of Usamah,
which is agreed upon, that the Prophet, may peace be on him, said: “A Muslim does not
inherit from a non-Muslim, nor does a non-Muslim inherit from a Muslim.”
In addition, from another hadith narrated by five except Al-Tirimidhi. The prophet- peace and
blessing be upon him-said: “People of two religions do not inherit from each other.” AlTirmidhi narrated something similar on the authority of Jabir.
Rights related to the deceased's wealth:
Hanafi, Shafi'i and Maliki jurists agreed that: there are five rights related to what the deceased
leaves behind from inheritance, some of which take precedence over others. Such that if the
first or the next one takes up all that he left behind, it would not be transferred from him to
someone else:
1- Every right owed to someone else, if this right is related to a specific asset of the
wealth, and there are many examples of this, including: the assets mortgaged from his
wealth, the right of the mortgagee in it takes precedence over everything else; including
the sale that he bought, but did not take possession of it or pay its price, the right of the
seller in this sale takes precedence over everything else, and including the assets that he
rented and received rent for during his lifetime and died before the end of the rental
period, the tenant has more right to these assets until he receives what he gave as rent,
and these are given precedence over everything else, even preparing and shrouding him,
because they are related to the asset before it becomes an inheritance.
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2- Preparing him, shrouding him and what is needed for his burial in the known amount,
without stinginess, extravagance or waste. Because shrouding is the clothing of the
deceased after his death, it is considered as his clothing during his life, and it is stronger
than debt and takes precedence over all rights except for a right related to a specific part
of the estate, as explained above. Scholars have differed on the measure by which
extravagance and stinginess are known. Some of them said; the number of clothes in
which he is shrouded, so a man is shrouded in, considers it more than. If the woman is
married, then the doctrine of Abu Yusuf, which is the fatwa in the Hanafi school, is that
shrouding and preparing her are the duties of her husband, and the doctrine of
Muhammad is that it is from her money.
3- Paying off all his debts, so he gives priority to health debts and then debts of illness
proven by the admission of the patient in the terminal illness.
However, if the debt is to Allah the Almighty - may He be praised - such as zakat,
expiations, and the like, then it is dropped by death, and the heirs are not obligated to
pay it, because the right of Allah is based on forgiveness, and if he made a will during
his lifetime, it must be implemented from a third of his wealth. Rather, he gave priority
to paying off his debts over executing his wills, even though the will is mentioned
before the debt in the verse on inheritance, which is the Almighty’s saying: {After any
bequest he may have bequeathed or debt} (Q4:10-11). The hadith says: “Begin with
what Allah began with.” for two reasons:
The first: The text has been reported on giving priority to the debt over the will in a
hadith narrated on the authority of Ali ibn Abi Talib, may Allah be pleased with him, who
said: “I saw the Messenger of Allah, may Allah bless him and grant him peace, begin with
the debt before the will.” The second: The debt is an obligation that the debtor is forced to pay,
and the will is a donation, and there is no doubt that volunteering is later in rank than the
obligatory.
4- Implementing his wills that have met their legal conditions from a third of his money,
and on the condition that it is not for an heir, as narrated by Ibn Abbas - may Allah be
pleased with them- who said: The Messenger of Allah - may Allah bless him and grant
him peace - said: "The will of an heir is not permissible unless the heirs wish it."1.
But if it is for an heir; it is contingent on the approval of the heirs, and likewise if it is
for more than a third. The will is a contract that is recommended and desirable, not
obligatory or obligatory according to the majority of scholars, so it is from the
donations added to what comes after death. The will is taken from the word "wasiyat"
which means to connect it; because the testator connected the good of his world with
the good of its afterlife, and "was" and "was" have the same meaning. It was legislated
for the benefit of the servants in the hadith: "Allah the Most High gave you a third of
your wealth in charity at the end of your life as an increase in your deeds, so spend it
wherever you wish - and in another narration - wherever you like"2 .
What is prescribed for us is not an obligation or a duty upon us, but rather it is
recommended and desirable, and the will is one of the contracts that depend on the offer
and acceptance, so it is not completed except by the acceptance of the legatee explicitly
or implicitly, and the acceptance and rejection only occur after the death of the testator,
and there is no consideration for acceptance and rejection before his death, so the
explicit acceptance is that the legatee accepts it after the death of the testator. As for
acceptance implicitly, it is that the testator dies insisting on his will, then the legatee
1
2
- See Fayd al-Qadir fi Sharh al-Jami` al-Saghir 3/220.
- See Fayd al-Qadir fi Sharh al-Jami` al-Saghir, 3/220..
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dies before accepting or rejecting, so his death is acceptance of the will and the money
bequeathed is transferred as an inheritance to the heirs of the legatee. He should not
bequeath more than a third, and it is better for someone who has children and young
offspring to reduce the bequest, as it was narrated from Abu Bakr, - may God be
pleased with them: “It is more beloved to us that a fifth bequeathed than a quarter
bequeathed, and it is more beloved to us that a quarter bequeathed than a third
bequeathed.” And it was narrated in the two Sahihs that Sa`d ibn Abi Waqqas - may
God be pleased with him - said: “The Messenger of God - may God bless him and
grant him peace - came to visit me in the year of the Farewell Pilgrimage because of
an illness that had become severe in me, so I said: O Messenger of God, I have been
afflicted with the pain that you see, and I have wealth and no one to inherit from me
except a daughter, so should I give two-thirds of my wealth in charity? He said:
“No.” I said: “Then half?” He said: “No.” I said: “Then a third?” He said: “A third,
and a third is a lot. If you leave your heirs rich, it is better than leaving them poor,
begging from people.”1
5- Dividing his estate, which is what remains of the money after all that, among his heirs
according to the system and arrangement that we will explain later, God willing.
Methods of Succession:
Inheritance has three methods: 1-The estimated share (fixed share), 2-Agnatic
kinship,3-The right of the womb.
Inheritance by marriage is by way of the fixed share.
Inheritance by kinship is by way of the fixed share or agnatic kinship or both, or by the
womb share. If an heir has two inheritance directions, he inherits by both of them
together.
1
- Sahih Al-Bukhari 4/143.
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