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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0002-INHERITANCE, (AHKAAM AL MAWARIITH)

Background reading material for medicine and fiqh session held on 22nd January 2000 at the Kulliyah of Medicine, International Islamic University, Kuantan by Professor Omar Hasan Kasule Sr.

1.0 THE WILL, al wasiyyat

A. Definition

B. Conditions

C. Limitations

D. Beneficiaries

E. Cancellation

 

2.0 CONDITIONS of INHERITANCE, shuruut al irth

A. Death of the inheritee

B. Life of the inheritor

C. Relation

D. Religion

E. Cause of death

 

3.0 THE INHERITORS, al warathat

A. Descendants

B. Predecessors

C. Brothers and sisters

D. Spouse

E. Distant relatives

 

4.0 HOMICIDE and PREVENTION of INHERITANCE, mawaniu al irth

A. Lawful judicial execution

B. Intentional homicide

C. Accidental homicide with intention of harm

D. Accidental homicide with no intention of harm

E. Contributory factor

 

5.0 ESTATE DIVISION

A. Fixed shares

B. Prevention

C. Radd

D. 'Awl

E. Universal heirs


1.0 THE WILL, al wasiyyat

A. DEFINITION

The will is a testament by a living person that can be executed before or after death. Bequests can be made to Muslims and non-Muslims. The will confers on the beneficiary the right to own or use property. It can include things that do not exist at the time of the bequest such as the produce of a tree or the animal. It may also include uknown things such as willing contents of a closed box. An executor is appointed for the bequest. If the father is living he is automatically the executor.

 

B. CONDITIONS

The will was obligatory at the beginning (MB 1194, BG 818). This obligation ceased with the revelation of verses spelling out the share of each inheritor. The will is now used for property that the deceased wishes to leave to non-inheritors or charitable bodies. Conditions may be attached to the execution of the will. The usual rules of evidence are applied to test the validity of a will. The physician, often the last person to be in contact with the deceased, may be called upon to witness the will. The physician may have to advice the deceased about the conditions and limitations of the will. Some wills in terminal illness may not be valid because of doubts about the mental and legal competence of the patient. Issues that arise about wills to donate organs will be discussed in a later unit.

 

Will About Organ Donation

 

C. LIMITATIONS

The maximum limit of the will is one third of the total estate (BG 819, BG 822) unless all the inheritors agree to a higher proportion. The inheritors can not be beneficiaries of the bequest (BG 821)

 

D. BENEFICIARIES

A wide range of beneficiaries is allowed. This includes Muslims, Jews, Christians, apostates, killer of the deceased, an heir (if all heirs agree to this), and the unborn child. Wills can also be made to charitable organizations and waqf bodies. Wills can be made for obligatory expenditures like zakat and hajj. A will can be made to non-specific people such as the poor or the students.

 

E. CANCELLATION

The will can be cancelled at any moment before death. It is also considered automatically canceled if the beneficiary dies before the death of the bequestor.

 

2.0 CONDITIONS of INHERITANCE, shuruut al irth

A. DEATH OF THE INHERITEE

Inheritance can not take place until the death of the deceased is certified beyond any doubt

 

B. LIFE OF THE INHERITOR

The inheritor must survive the inheritee even if for a short time. A new-born born alive has full rights of inheritance (BG 813).

 

C. RELATION

The relationship between the inheritee and the inheritor must be established beyond doubt. There are only two types of relationship: based on blood relationship or based on marriage.

 

D. RELIGION

The inheritee and the inheritor must be of the same religion. A Muslim can not inherit from a non-Muslim and vice versa (BG 806, BG 808).

 

 

E. CASES OF DOUBTFUL INHERITANCE

The gender affects the share of inheritance. The Law has prescribed complicated procedures for dealing with cases of indeterminate gender

 

A prisoner of war or a lost person do not lose their rights of inheritance. The problem arises when it can not be established whether they were living at the time of the death of the inheritee. The Law has also prescribed measures to deal with this type of uncertainty.

 

3.0 THE INHERITORS (al warathat)

A. DESCENDANTS

Son

Daughter

Son of Son

Daughter of son

Son of daughter (check)

Daughter of daughter (check)

 

B. PREDECESSORS

Father

Mother

 

C. BROTHERS AND SISTERS

Full brother

Paternal Half brother

Maternal half brother

Paternal half sister

Maternal half sister

 

D. SPOUSE

Wife

Husband

 

E. DISTANT RELATIVES

 

4.0 HOMICIDE and PREVENTION of INHERITANCE (maniu al irth)

A. LAWFUL JUDICIAL EXECUTION

A potential inheritor who in the official disharge of duties is a factor in the death of the inheritee is prevented from inheritance

 

B. INTENTIONAL HOMICIDE

Intentional homicide prevents a person from inheritance (BG 814)

 

C. ACCIDENTAL HOMICIDE WITH INTENTION OF HARM

Accidental homicide with intention to hurt prevents from inheritance

 

D. ACCIDENTAL HOMICIDE WITH NO INTENTION OF HARM

Accidental homicide with no intention to hurt prevents from inheritance

 

E. CONTRIBUTORY FACTOR

 

 

5.0 ESTATE DIVISION

A. FIXED SHARES

One half: This share is given to 2 categories of inheritors: (a) The husband of a deceased who has no children takes one half of the estate (p 545 4:12) (b) a sole daughter or sister (p 545 4:7-12).

 

One quarter: This share is given to 2 inheritors: a husband of a deceased who has children (p 545 4:12) and the wife of a deceased who has no children (p 545 4:12)

 

One eighth: This share is given to only 1 inheritor: a wife of a deceased who has no children (p 545 4:12)

 

One third:

 

Two thirds: This share is given to 2 or more daughters or sisters (4:19)

 

One sixth: This share is given to sister, brother, or mother (4:7-12).

 

B. PREVENTION

There are two types of hajb: hajb nuqsaan and hajb hirmaan

 

C. RADD

 

D. 'AWL

 

E. UNIVERSAL HEIRS

There are three types of universal heirs: aasib bi nafsihi, assib bi ghayrihi, and aasib ma ghayrihi. Owners of shares are given their due and whatever remains is shared among the universal heirs (BG 805). Males take twice what females take (p 89 4:7-12)

 

DISCUSSION ON INHERITANCE

Assessing the mental competence of the person making a will

The physician as a witness to a will

Medical certification of the life of the inheritor even if for short while after death of the inheritee

Use of DNA and other medical tests to establish blood relationship between the inheritor and the inheritee

Medical tests and examination in cases of inheritance by hermaphrodites

Medical evidence in cases of prevention of inheritance due to the putative inheritor being a factor in the death of the inheritee

Medical explanation of the list of inheritors and their respective strengths based on closeness of relationship to the inheritee

Professor Omar Hasan Kasule Sr. February 2000