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kobo
United Kingdom
7765 Posts |
 Posted - 08 Jul 2006 : 02:17:16
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quote:
Originally posted by Rainbow
My mum's mother died when she was young and her father remarried another wife and my mum and her sister were looked after by their uncle. Their father was not rich but aboved average.
When their father died the brothers and the other sons of the second wife took over everything.
Not a single thing was given to them. Lands and compounds automatically belongs to them. Because they have changed everything to their names. We are still going to court!!!
Finally Rainbow I would attempt to summarised and assist you with some remedies and better understanding of Inheritance and Islamic jurisprudence "Shariya Law" based on the holy Quraan and other supplementary sources. Certain principles laid down have permanently governed Muslim Law and Social Practice and should be left with the muslim jurist to deal with them. However attempt self-test approach to identify certain key words, technical or operative statements highlighted with bold characters to relate those features with your case (if available or are represented) and sound the remedies that may be available to you as follows:
Inheritance Quraan Sources:
1)"Sura" or Chapter 2:180 = Pre-inheritance (when death approaches)
There are rules of course for the disposal of interstate property But it is good thing that a dying man or woman should, of his own
free-will, think of his parents and his next of kin, not in the spirit of love and reverence for those who have cherished him. He must, however, do it "according to reasonable usage": the limitations will be seen further on.
Note, Rainbow; the interpreter (from my source) resisted the temptation to translate "next to kin" as this phrase has a technical meaning in Indian Law, referring to certain kinds of hiers, whereas here the people meant are those whose inheritance is to be divided.
A verbal will is allowed but it is expected that the testator will be just to his heirs and not depart from what is considered equitable. For this reason definite shares were laid down for heirs later (See "Sura" 4.11, etc). These define or limit the testamentary power but do not abrogate it. For example, amongst kin there are persons (e.g., an orphan grandson in the presence of surviving sons) who would not inherit under the intestate scheme, and the testator might like to provide for them. Again, there may be outsiders for whom he may wish to provide, and jurists have held that he has powers of disposition up to one third of his property. But he must not be partial to one heir at the expense of another, or attempt to defeat lawful creditors. If he tries to do this, those who are witnesses to his oral disposition may interfere in two ways. One way would be to persuade the testator to change his bequest before he dies.
The other way would be, after death, get the interested parties together and ask them to agree to a more equitable agreement. In such a case they are acting in good faith, and there is no fraud. They are doing nothing wrong. Islam approves of every lawful device for keeping brethren at peace, without litigation and quarrels. Except for this, the changing of the provisions of a will is a crime, as it is under all Law.
2)"Sura" or Chapter 2:240 = A year's maintenance for widow
3)"Sura" or Chapter 4:11;12;176 = Specific details of inheritance
The principles of inheritance law are laid down in broad outline in the Qu-ran: the precise details have been worked out on the basis of Prophet's practice and that of his companions, and by interpretaion and analogy. Muslim jurists have collected a vast amount of learning on this subject, and this body of law is enough by itself to form the subject of life-long study. Here we shall deal only with the broad principles to be gathered from the Text, as interpreted by the Jurists.
The shares of collaterals generally are calculated on a complicated system which cannot be described in a brief note. For these, and the rules about Residuaries "Asaba" reference should be made to special legal treatises.
1) The power of testamentary disposition extends over only on-third of the Property; the remaining two-thirds are distributed among heirs as laid down.
2) All distribution takes place after the legacies and debts (including funeral expenses) have first been paid.
3) Legacies cannot be left to any of the hiers included in the sceme of distribution; or it will amount to upsetting the shares and undue preference of one heir to another.
4) Generally' but not always' the male share double that of his own category.
Islamic Laws of Inheritance (Extracts)
Dr. Abid Hussain
The scope of this article is confined to traditional Sunni Islamic law.
When a Muslim dies there are four duties which need to be performed. These are:
payment of funeral expenses
payment of his/ her debts
execution his/ her will
distribution of remaining estate amongst the heirs according to Sharia
It is assumed that the preliminary issues have been resolved and we shall confine ourselves principally to discussing the fourth and last duty. The task is to firstly, determine which of the relatives of the deceased are entitled to inherit and secondly, to determine the quantum share entitlement of each of the heirs concerned.
As we shall see the Quran does not expressly state the share of the male agnate relatives as such, although it does enact that the share of the male is twice that of a female. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system. The rights of the asaba were recognised by the Prophet Muhammad (SAWS) himself. Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." (Sahih al-Bukhari)
The Shia jurists on the contrary took the view that since the old agnatic customary system had not been endorsed by the Quran it must be rejected and completely replaced by the new Quranic law.
By specifying clear cut entitlement and specific shares of female relatives, Islam not only elevated the position of women but simultaneously safeguarded their social and economic interests as long ago as 1400 years. The Quran contains only three verses [4:11, 4:12 and 4:176] which give specific details of inheritance shares. Using the information in these verses together with the traditions of the Prophet Muhammad (SAWS) as well as methods of juristic reasoning, the Muslims jurists have expounded the laws of inheritance in such meticulous detail that large volumes of work have been written on this subject.
The heirs mentioned in the Quran (mother, father, husband, widow, daughter, uterine brother, full sister, uterine sister, consanguine sister) together with the three heirs added by juristic method of analogy (paternal grandfather, maternal grandmother and agnatic granddaughter) form a group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs when entitled to inherit are given their fixed shares and the remaining estate is inherited by the residuaries (asaba).
Under Islamic law some of the Quranic heirs, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and the mother, can also inherit as residuaries under certain circumstances.
Certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. There are several rules of exclusion which determine the exclusion of some heirs by the presence of others. It not possible to discuss all these rules in an article of this nature but in brief :
a person (e.g. brother) who is related to the deceased through another (i.e. father) is excluded by the presence of the latter,
an individual nearer in degree (proximity) to the deceased excludes the one who is remoter within the same class of heirs (son excludes all grandsons),
full blood excludes half-blood through father (so a full brother will exclude a consanguine brother but not a uterine brother)
The majority view is that the full and consanguine brother is not excluded by the paternal grandfather. However, the Hanafi fiqh allows the paternal grandfather to totally exclude the agnatic siblings.
Heirs may also be prevented from inheriting by disqualification. The only two practical situations which are causes of disqualification are difference of religion and homicide.
The Prophet (SAWS) said, "A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim." (Sahih al-Bukhari)
Generally speaking, and this is also the majority view, a Muslim cannot inherit from a non-Muslim. Although the Hanafi fiqh does allow a Muslim to inherit from an apostate.
Allah's Messenger (SAWS) said, "One who kills a man cannot inherit from him." (Tirmidhi and Ibn Majah)
All the jurists agree that intentional or unjustifiable killing according to Sharia is a bar to inheritance because if such people are allowed to kill and then benefit from the estate of the victim, it will encourage incidents of homicide.
It should be noted that only relatives with a legitimate blood relationship to the deceased are entitled to inherit from the deceased under Islamic law. Thus, illegitimate children according to Islamic law and adopted children have no part in inheritance. Incidentally legal adoption as practised in the west is forbidden in Islam.
Under certain circumstances after allocation of the estate amongst all the heirs with fixed shares there is a residue left over but there are no residuaries. This residue called al-radd is returned to those sharers who are entitled to it, in proportion to their original shares. Conversely a situation may arise when the total sum of the assigned shares of the heirs with fixed shares is greater than unity. In this situation all the shares are abated proportionately by the doctrine of al-awl which involves decreasing the fractional shares to a common denominator, and increasing the denominator in order to make it equal to the sum of the numerators.
The amalgamation of the old customary agnatic law and the Quranic law has led to a number of problems which Muslim jurists have solved with great ingenuity. I shall mention one such case which occurred during the caliphate of Umar ibn Khattab (RA). A woman died leaving behind a husband, mother, two uterine brothers and two full brothers.
Umar ibn al-Khattab (RA) by systematically applying the rules gave the Quranic heirs their shares, husband (1/2), mother (1/6) and the two uterine brothers (1/3). The two full brothers acting as residuaries received nothing because there is no residue. The two full brothers, who would have been the sole heirs under the old customary agantic system, argued that even if their father was a donkey or a stone cast into the sea and they had no paternal relationship, they still had the same and equal relationship with the deceased as the uterine brothers through the same mother. Umar ibn al-Khattab (RA) reconsidered his ruling and allowed the full brothers to inherit equally with the uterine brothers in the share of 1/3.
The reader will have noticed that uterine (or cognate) relatives have not figured in the discussion thus far. This group of potential heirs contains all those relatives who are neither Quranic sharers nor male agnates and constitute the largest group within the context of inheritance. They are referred to as dhawu al-arham (or distant kindred). The majority view is that they are entitled to inherit when there are no residuaries and no sharers entitled to al-radd. Only the traditional Maliki fiqh does not allow the distant kindred to inherit, any residue is given to the bait al-mal (public treasury). The rules of inheritance amongst the distant kindred are relatively complex and hence not mentioned here.
The Islamic laws of inheritance that have been discussed here can be legitimately accommodated and practically implemented within many existing western legislation systems by way of a valid will. In fact for those Muslims living in the west a will becomes an essential necessity to prevent intestate succession law of the land being applied to their estate after they die.
The will should comply with the law of the land so that it can be executed after a person’s death without any unnecessary legal problems. Needless to say nothing in the will should be contrary to Sharia.
Sharia has placed two restrictions on the testator. Firstly, to whom he can bequeath his estate and secondly, the amount that he can bequeath. The majority view is that a bequest in excess of one-third of the net estate is invalid unless consented to by the legal heirs as is a bequest in favour of a legal heir.
I hope that this article will benefit all those Muslims wishing to conduct their lives according to the divine will of Allah (SWT).
1. Rumsey, A. Moohummudan Law of Inheritance. (1880) Preface iii
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Edited by - kobo on 08 Jul 2006 02:24:53 |
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kobo
United Kingdom
7765 Posts |
Posted - 11 Jul 2006 : 15:01:19
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| From the above postings it appears that shariya law is equitable on Inheritance; as a will and a testator is approved (where they are available), equitable shares are alloted to rightful heirs, and everybody (parents, wife, sons, daughters, brothers, sisters etc) has legitimate rights under certain circumstances. THerefore having conclude that aspect of Islamic (shariya) Law. We hope to explore the western style of of common law and equity for the dispensation of Inheritance. Any useful information can be forwarded to continue our discussions plaese. |
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kassma
334 Posts |
Posted - 12 Jul 2006 : 18:14:48
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| this topic about inheritance seems to have gone from being about african inheritance practices to being about muslim laws of inheritance. there are many african societies where the man's family takes everything once he dies, islam really has nothing to do with it, however, it has something to do with african culture and practices which must change in this case. its sad that such things can and are allowed to happen. i think its the man's responsibility before he dies to state/write that he wants everything to go to his children and wife, however, most african husbands aren't strong enough to go against their families and do the right thing. |
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Sister Omega
United Kingdom
2085 Posts |
Posted - 12 Jul 2006 : 18:28:22
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"
its the man's responsibility before he dies to state/write that he wants everything to go to his children and wife, however, most african husbands aren't strong enough to go against their families and do the right thing."
That's a good point you raised Kassma why is it that African husbands aren't strong enough to assert themselves to tell their families what they want to see happen in regards to the inheritance issue? And what do you think needs to be done for African men to assert themselves more to do the write thing for their immediate families?
Peace
Sister Omega |
Peace
Sister Omega |
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kassma
334 Posts |
Posted - 12 Jul 2006 : 20:23:50
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| as always, in africa or when dealing with african men, the women/wives are going to have to force their men to do it cause i can guarantee you that the men won't take the iniative and do it, if they did, we would not be discussing this. i think this issue is serious enough that there should be a law that a man's family shouldn't be able to seize everything after death, that's why i think religion should be taken out and being fair and just should be taken into account because everyone from a particular country does not share the same religion. it is also very shameful that people do seize their deceased male relative's belongings cause it shows no compassion or care for the mother of those children and the children, whom should be considered family. but if this issue is left to men to decide or speak up for, then nothing will happen. |
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Sister Omega
United Kingdom
2085 Posts |
Posted - 12 Jul 2006 : 20:35:51
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Are you really telling me Kassma, that African men have no backbone to tell their blood relations that their belongings will go to their wife/wives and children,parents first and then their siblings families. Community theatre and songs maybe a good medium for exploring this issue further. It is a issue which definitely needs to be addressed to alleviate poverty and curitail destitution within African Society. What do you think?
peace
Sister Omega |
Peace
Sister Omega |
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njucks
Gambia
1131 Posts |
Posted - 12 Jul 2006 : 20:42:10
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Kassa/S.Omega
its important to also note that atleast in the gambia both customary and common law are recognised.
if two adults get married under customary law (e.g through Islam)then you cannot take religion out of the divorce or inheritance because there is no ''marriage certificate'' as in the common law.
that is why the elders(usually men) decide the inheritance according to ISlamic Law because the marriage was done at the mosque. also more than one wive can be involved ans children from different mothers.
very complicated issues, especially when it comes to houses and land!! |
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kobo
United Kingdom
7765 Posts |
Posted - 12 Jul 2006 : 20:46:43
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quote:
Originally posted by kassma
as always, in africa or when dealing with african men, the women/wives are going to have to force their men to do it cause i can guarantee you that the men won't take the iniative and do it, if they did, we would not be discussing this. i think this issue is serious enough that there should be a law that a man's family shouldn't be able to seize everything after death, that's why i think religion should be taken out and being fair and just should be taken into account because everyone from a particular country does not share the same religion. it is also very shameful that people do seize their deceased male relative's belongings cause it shows no compassion or care for the mother of those children and the children, whom should be considered family. but if this issue is left to men to decide or speak up for, then nothing will happen.
Thanks Kassama for bringing up popular customary practices typical in Africa or especially Gambia. However Islam is against such practices and I will bring up the authority from the Quaran later as customary practices conflicts with certain religious doctrines. |
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jambo
3300 Posts |
Posted - 12 Jul 2006 : 22:05:39
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| tunisia has abandend polygomy, so multiple marriages are not part of the problem. |
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kassma
334 Posts |
Posted - 12 Jul 2006 : 23:18:09
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quote:
Originally posted by Sister Omega
Are you really telling me Kassma, that African men have no backbone to tell their blood relations that their belongings will go to their wife/wives and children,parents first and then their siblings families. Community theatre and songs maybe a good medium for exploring this issue further. It is a issue which definitely needs to be addressed to alleviate poverty and curitail destitution within African Society. What do you think?
peace
Sister Omega
yes i am telling you that they don't have the backbone because if they did this wouldn't be such a problem. like i have stated before, this occurs in many other african countries, its even tradition or cultural that everything goes to the male's relatives after he passes. this is problematic because men die sooner than women do, or they have a higher chance of dying. most african families are poor to begin with so when a relative takes the husband's belongings, and remember that in africa, everything you and your husband buy together belongs to him, his family basically leaves with everything. the threater is probably a good way of addressing this or having discussions over the radio. it is a huge problem because the man dies, the woman has to go and live with her relatives, burdening her relatives instead of being able to support herself and children. |
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Newfy
Western Samoa
462 Posts |
Posted - 12 Jul 2006 : 23:33:50
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Is their such a thing as a living will -- where the person writes their will and shares it with their family, kids before they pass on?
Also do you think if women in the household had substanially more economic power, that they would have more influence afterwards on the partage of the inheritance among the wife and children? Very sad they are not recognized by the husbands family.. |
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kobo
United Kingdom
7765 Posts |
Posted - 12 Jul 2006 : 23:57:25
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quote:
Originally posted by njucks
Kassa/S.Omega
its important to also note that atleast in the gambia both customary and common law are recognised.
if two adults get married under customary law (e.g through Islam)then you cannot take religion out of the divorce or inheritance because there is no ''marriage certificate'' as in the common law.
that is why the elders(usually men) decide the inheritance according to ISlamic Law because the marriage was done at the mosque. also more than one wive can be involved ans children from different mothers.
very complicated issues, especially when it comes to houses and land!!
Kassama Tarditional or customary practices is unjustifiable, not equitable and illegal. Islam is totally against it for e.g in this verse (S4 A.19) followed by the interpretation, you will see a scenario (for e.g) that could happened or is still being practised under traditional cultures as follows:
O ye who believe! Ye are forbidden to inherit women against their will
(Among many nations, including Arabs in the Days of Ignorance, a step-son or brother took possession of a dead man's widow or widows along with his goods and chattels. This shameful custom is forbidden).
Some customs are shameful, odious and un-religious indeed; Kassama/S.Omega. |
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kobo
United Kingdom
7765 Posts |
Posted - 13 Jul 2006 : 00:12:49
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quote:
Originally posted by Newfy
Is their such a thing as a living will -- where the person writes their will and shares it with their family, kids before they pass on?
Also do you think if women in the household had substanially more economic power, that they would have more influence afterwards on the partage of the inheritance among the wife and children? Very sad they are not recognized by the husbands family..
When a will exists; the property is intestate property, there are rules and limits for the disposal of intestate property, a testator and testamentary power are considered under the intestate scheme to disposed inheritance. A verbal will is allowed but it is expected that the testator (principal witness) will be just to his heirs and not depart from what is considered equitable.
Islam approves of every lawful device for keeping brethren at peace, without litigation and quarrels. The changing of the provisions of a will is a crime, as it is under all law. |
Edited by - kobo on 13 Jul 2006 00:13:29 |
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kassma
334 Posts |
Posted - 13 Jul 2006 : 18:21:44
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| the people hear that are muslim, do you this problem can be resolved by a law that has nothing to do with islam. do you think other muslims will follow it or do you think they would feel compell to follow whatever the Quaran says. because i feel that if this isn't made into a law, no one will change their ways. and since a law is required, i feel like we have to take religion out of it in order to respect everyone's different values and religions |
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kobo
United Kingdom
7765 Posts |
Posted - 13 Jul 2006 : 21:31:27
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quote:
Originally posted by kassma
the people hear that are muslim, do you this problem can be resolved by a law that has nothing to do with islam. do you think other muslims will follow it or do you think they would feel compell to follow whatever the Quaran says. because i feel that if this isn't made into a law, no one will change their ways. and since a law is required, i feel like we have to take religion out of it in order to respect everyone's different values and religions
Kassama I believe the religious doctrines of Islam are virtually exhausted. We need answers from the common law and other jurisprudence for equity and fair play workable in the law courts. Shariya law of inheritance is muslim law and omly one aspect of legal jurisprudence applicable to muslims family disputes on inheritance. We have the western values and its own legal systems which we can explore. However please note that the traditional velues are very crude ways for society! |
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