Peace be upon you
Testament By Khurram Chaudhry
1. It is enjoined upon every Muslim to make a testament as
regards his bequest before he dies. The last will ought to
cover the entire property and all persons to whom he wants
to give something without any distinction of heir or non-heir:
(2:180) "It has been enjoined upon
you that when you approach death and you are leaving behind
your personal property, make a testament according to law
for your parents and others close to you. This has been enjoined
upon Muttaqeen as a duty from Allah. (The distribution of
left-over property shall take place after the provisions of
the 'will' have been fulfilled (4:11)."
Note that this verse starts with the words "you are
commanded" and ends with the words "that it has
been made incumbent upon those who guard the Divine Law".
Moreover the 'will' shall be for the entire property. The
verse also clarifies that the 'will' can also be made for
parents and near relatives and also for non-relatives; whom
the testator considers nearer to himself.
2. The Quran has given so much importance to the making of
will that even (minute) details for it have been prescribed.
The following verses of Surah Al-Maaidah (5th Chapter of the
Quran) invite pondering:
(5:106-108) "O you who believe! When
death approaches any of you, take witnesses amongst yourselves
while making testament; two just men of your own (brethren);
or others from outside, if you are journeying through the
land and your own men are not available and the chance of
death befalls you.
Afterwards when witnesses are needed, your judges shall detain
them (in the mosque) after prayers (because mosques are your
court-rooms). If you doubt their truth, let them both swear
by Allah: we wish not to take in this any worldly gains, even
if the beneficiary be our near relative; we shall not hide
evidence before Allah; if we do, we shall become censurable.
If after the witnesses have been recorded, it is found that
they have deviated from the truth, two witnesses from among
those against whom the witness has been given should come
forward and upon an oath in the name of Allah, state that
their statement is truer than the previous witnesses and that
they shall not deviate a bit from the truth and if they do,
they shall be liable to censure.
In Divine Law witness over witness is allowed, so as to make
certain that they speak the truth. By so doing, the first
two witnesses shall fear that in case they give false evidence,
the other two witnesses
shall prove it to be wrong and thus they shall become guilty
of the perjury and this shall also bring them shame in society.
It is necessary for you to remain conscious of the Divine
Laws and do not forget that, deviating from the course set
out by Divine Laws and treading upon some other course, it
shall not lead you to the goal.
It has been strongly emphasised that the witnesses shall
not make a change in the contents of the testament:
(2:181) "If any one changes the content
of the will after hearing it, such people shall be guilty
in the eyes of law and they ought to know that Allah hears
and knows everything."
It is further stated that:
(2:182) "But if any one fears partiality
or wrongdoing on the part of the testator, and thinks that
he is inclined towards someone unjustly, he should advise
the testator to do the right thing and bring about compromise
between (the parties concerned) so as to protect those whose
rights are being encroached. There is no wrong in doing so.
To make a room for it in the Divine Law is clemency (Rahmat)
from Allah."
But it is obvious that this shall only be an attempt for
making compromise, otherwise the final word shall be that
of the testator.
3. In the case of a widow, in addition to her share in the
bequest, it is necessary that providing of maintenance for
a year be included in the will:
(2:240) "Those of you who die leaving
widows behind should bequeath that their widows be provided
a year's maintenance and not turned out of their houses. But
if the widows leave (the residence) and make some other lawful
arrangements for themselves, there is no blame on you for
what they do. Remember that the Divine Law is very powerful,
yet it is based on wisdom."
Inheritance
The injunctions for inheritance are given collectively in
two verses of Surah 'An-Nisa' (4th Chapter of the Quran).
It seems proper to begin with both the verses quoted together
and then describe their details afterwards: (4:11-12) The
law of inheritance is made clear in the light of these verses.
In it the offspring is given the first place; and for it,
Allah has ordained:
1. "As regards your children's (inheritance),
to each boy a share equal to that of two girls, i.e. one girl
= 1/3 and one boy = 2/3; [that is because a male is responsible
for the maintenance of the family, not the female].
In the verse the words used are (4:34) i.e.
male or female. It means, where Allah Himself has not fixed
up the portions and both males and females are included among
the heirs, this very principle shall be applicable, i.e. man's
share being twice that of a woman.
2. If the girls are two or more than two,
the portion of all of them together shall be 2/3; if it is
one girl, the portion shall be half. It means that if there
are no boys and the heirs are only girls, their portions shall
be divided as above.
3. For parents, one-sixth share (1/6) of
the inheritance to each, in case the deceased left children
as well. If no children are left and the parents are the only
heirs, the mother's, share shall be 1/3 and the father's share
shall be 2/3. If the deceased left brothers and sisters, the
mother's share is 1/6 (Read it in combination with item 5).
Remember that this distribution in all cases shall take place
after the fulfillment of the will and the payment of debts
against the deceased. If the will does not cover the entire
property of the deceased or the deceased has not left a will,
the distribution of the left-over property shall be according
to what has been stated above. This is because you do not
know whoever from among your parents or offspring is closer
to you in matter of being beneficial to you, therefore Allah
Himself (Who knows all) has fixed their shares. It means that
although the deceased had the knowledge as to whoever was
more deserving (the reason, leaving a testament was made incumbent);
but since he could not leave a will or his will does not cover
the entire property, Allah, instead of leaving the matter
to you, has Himself determined the shares.
4. Now we come to the relations through marriage:
i). In what your wives leave, your share is one-half in case
she leaves no children; the share of the husband is 1/4 after
the processing of the will and the payment of debt against
the deceased.
ii) In the bequest of a husband the share of the wife is
1/4, if he has no children, but if he has children, the share
of the wife is 1/8 after the processing of the will and payment
of debt against the deceased.
5. (See in continuation of item {3} above. If the deceased
has no children {known as 'kalaalah') but he has parents,
brothers and sisters too, then:
i) If there is one brother or one sister, each one of them
shall receive 1/6.
ii) If the number of brothers and sisters is more than one,
then together they shall be entitled to 1/3.
iii) The share of father and mother has been described in
item (3).
This shall also be after the processing of will and the payment
of debts.
6. If the deceased has neither children nor parents but has
only brothers and sisters, the distribution of shares shall
be according to verse (4:177) which shall be described later
on.
In the light of these injunctions, the following principles
of distribution are tabulated:
i) From the bequest of the deceased, first of all his debts
ought to be paid and the rest shall be distributed according
to his will. Details regarding the will have already been
described. There is however, one more (verse) related to it:
(4:33) "To every one of the beneficiaries
We have appointed shares in the bequest left by parents and
relatives; these are not restricted to family lineage only;
the in-laws are also included in them; give them their due
shares. For Allah is a Witness to all things, including their
details."
In this category (relations through marriage), husband and
wife come first, because their mutual relationship is through
matrimony and not by lineage; then come those with whom a
contract was made to pay something. Apparently this contract
shall be through a will.
ii) If the deceased left no will or something has been left
after the processing of the will, the distribution of this
surplus property shall be according to verses (4:11-12).
It is more practicable that the distribution of those shares
which have been fixed by the Quran, ought to take place first
and others shall follow later on.
If a surplus is still left after the distribution has taken
place according to the above laws, it shall be transferred
to the Islamic Government as is the case with those who die
without leaving heirs.
The verse in which the word "Qalaalah" occurs,
who leave neither parents, nor offsprings, is as follows:
(4:176) (In the beginning of this Surah in which the laws
of inheritance were described and in which the word 'kalaalah'
was mentioned (those who die issueless) such a deceased kalaalah
was mentioned: who had left parents, brothers and sisters
(4:12). "O Rasool! You are being asked
to give further details. Tell them that Allah ordains:
If a person dies leaving no parents or children
as heirs, the distribution of his property (wealth) shall
be as follows:
o If the deceased is a male and has only
one sister, her portion shall be half of his bequest;
o If there are two sisters (or more), their
(combined) share shall be 2/3 (also see 4/11 for share in
case of more than two sisters);
o If both the inheritors are brothers and
sisters, the entire left-over property shall be theirs. The
principle of "share of two females equal to share of
one male" shall apply (4/11);
o If the deceased is a woman, the heir of
her left-over property shall be her brother.
[This distribution shall take place after
the payment of debts and the processing of will (4/12)].
"Thus does Allah make clear to you
(His laws) lest you err, and Allah's knowledge encompasses
everything."
It is clear from the aforesaid verses that KALAALAH (issueless
deceased) can be of two kinds: (i) those who leave parents
(ii) and those who do not leave parents.
If at the time of distribution of the bequest there are such
people who have no share in the left-over property, but deserve
help, the court can allow them something for their relief:
(4:8) "If at the time of division of
the bequest, other relatives, or orphans or the poor are present
(who have no share in it) pay them also a little out of this
(property); but make it clear to them that according to law
they are not entitled to anything and what has been given
to them is by way of comforting them."
Those who distribute the left-over property, must exercise
utmost care:
(4:9) "Let those (disposing of an estate)
do it correctly according to law and they should keep in mind
that if they themselves leave behind helpless orphans, they
would never have liked that they be dealt unjustly. Thus they
should always keep before them the Divine Law and in such
affairs speak words clear and sure."
These are the limits laid down by Allah with which an Islamic
State shall frame its by-laws remaining within these hints.
"Limits" means the framework within which an Islamic
State is legally authorised to make by-laws. These limits
are immutable but the by-laws framed within these limits shall
be changeable according to the exigencies of the changing
times.
That which is ordained by Allah is immutable whereas that
which is man-made is changeable.
The inheritance of an orphaned grandson.
As regards inheritance, one important point ought to be kept
in mind: we use the word "Waalid" for father only
and the word Wald for sons and daughters, but in the Arabic
language (and according to the Holy Quran), the word "Wald"
includes father, grandfather and all others above (in the
line of ascent). Similarly the word "Waalid" includes,
sons, grandsons and great-grandchildren, all of them in the
line of descent.
Peace
Noah
|