INHERITANCE – IMPORTANT INFORMATION AND TEMPLATE FORM

THE MAYYIT’S ESTATE – THE FIRST CONCERN

[By Hazrat Maulana Ahmad Sadeq Desai (Daamat Barakatuhum)]

The custom which is universally prevalent after burial of the mayyit (deceased) is involvement in futility and even frivolity. The family members assemble at the home of the deceased for some feasting, crying, perhaps even wailing, discussing the exploits of the mayyit, and some even for gheebat. In the variety of activities in which the family members engage, the first and foremost Waajib act commanded by the Shariah is disregarded with wanton neglect and even disdain. Attendance to the estate – the assets – of the mayyit is not accorded the least bit of attention although this is the first compulsory obligation after burial.

This neglect perpetrated by 99.9% of the people invariably leads to misappropriation of the mayyit’s assets, usurpation, defrauding, and denial of the correct shares which Allah Ta’ala has apportioned for the heirs. In almost all cases of such flagrant disregard of the Shariah’s command, the consequences are heartrending and vile in the extreme. After some time has lapsed without proper accountability and division of the estate in accordance with the Shariah, the heirs – brothers and sisters – mother and children – aunts and uncles, etc become life-long enemies, each one accusing the other of having usurped his/her rightful share of inheritance.

The prime culprits usually in fiascos of this type are the mayyit’s sons who operate and manipulate the mayyit’s business and assets as if they are the sole owners. Nothing is recorded. No agreement is made with the other heirs. The daughters are generally ignored, and the sons continue with the business as if they have become the sole owners. The estate is allowed to drag on indefinitely until ultimately the issue becomes confrontational. Then commences the long uphill battle of acrimony, accusation, counter-accusation, even violence and kuffaar-court actions to resolve an Islamic issue with kuffaar law. When this stage of corruption is reached, the adversaries, despite professing to be faithful Mu’mineen, see only kuffaar law as their succour. In so doing, they move directly into the glare of Allah’s Decree:

“Those who do not rule according to that (Shariah) which Allah has revealed, verily they are the kaafiroon.”

There is a glut of cases of this sort of misery. Whenever Muslims do not submit to the directives of the Shariah, the inevitable consequences are misery, animosity and even life-long disruption of very close family ties. Brothers become enemies to one another; brother becomes the enemy of the sister; mother becomes the enemy of her children; grandchildren become the enemies of their seniors who had perpetrated the corruption in the first instance. Muslims – close family members — are squandering millions of rands in legal fees fighting one another in the courts for the carrion of the world. All the noble and lofty ideals produced by blood ties are eliminated.

Observers viewing the scenario from outside are aghast and could be forgiven for doubting the legitimacy of those clawing at each other in their homes and in the courts to lay their hands on the rotting meat of this dunya. If an observer concludes that those fighting each other over inheritance issues are perhaps the illegitimate offspring of the deceased, he could be forgiven because true blood brothers and blood sisters do not or are not supposed to conduct themselves with such vehement acrimony and intense animosity as heirs do for the acquisition of money.  

What is the duty of the heirs? After the mayyit has been buried, the first duty of the senior members – usually the adult sons – is to make a detailed meticulous inventory of the mayyits assets – all his assets – even the shoes and the unwashed pair of socks he was last wearing. Every item of the estate has to be recorded. It is essential to understand that every heir’s right pervades every single item in the estate of the mayyit. There is not a single heir, male or female, who has the right to claim a specific item in the estate. Since the rights of all the heirs are related to every item, the division of the assets will have to be with understanding, give and take – with compromise – as is expected of Muslims who have some fear of Allah Ta’ala in their hearts. The heirs are not expected to behave like cats and dogs. They are expected to act responsibly with bigness of heart as is expected of Mu’mineen.

After returning from the Qabrustaan (graveyard), instead of assembling for refreshments and nonsensical conversation, the male heirs and even the female heirs, if they are not ghair mahram, should immediately commence with the work of the inventory. Not an item should be excluded. The emphasis is more on a physical stock-taking of the business assets. The stock and other assets in the shops and factories must be accurately listed. In fact, the stock-taking has to be 100% genuine, unlike the estimates which are prepared for tax purposes.

The male heirs who are in charge of the business of the mayyit should understand that it is haraam for them to continue business operations without an agreement with the other heirs. Every heir has his/her proportionate ownership in every item of the stock, equipment and vehicles, etc. which had belonged to the mayyit. The ownership of the heirs is established simultaneous with the death of their father/relative. It is therefore not permissible for any heir to utilize any asset of the estate without a proper agreement having been made.

If those in charge of the business continue to trade without any agreement with the heirs, they are guilty of usurpation of the assets of the heirs. This happens in 99.9% of cases in which the mayyit leaves behind a business. The trading continues for years and sometimes for even decades. At such a stage more than one generation of heirs become entangled in an almost insoluble mass and mess from which amicable extrication is a virtual impossibility.

One very important fact which all heirs should take note of in a case of such usurpation of assets with which some of the heirs continue the operation of the business, is that despite the usurpation, all future profit yielded by the business belongs to those who operated the business. The future profit, that is, after the demise of the mayyyit, does not form part of the estate. The rights of the heirs are related to only the assets which the mayyit had left, not in future profit acquired from the usurped assets. The usurpers will have to face the Reckoning in the Divine Court for their usurpation – for having utlized the assets without the consent of the owners.

An extremely contentitious issue due to ignorance and greed develops when the usurper heirs have to pay the other heirs for the assets they had utilized without consent. The usurpers invariably claim that the value of the assets on the day of demise has to be paid while the other heirs claim the current value. The heirs are entitled to demand that the usurpers pay their share with tangible assets. For example, if the business assets comprised of groceries, and the estate is finalized only after five years, the heirs can claim that their share of the groceries be paid in groceries. The usurper heirs may not argue that they will pay whatever the value of the groceries was five years ago at the time of demise. Either they have to pay with groceries or make a reasonable settlement which is acceptable to the heirs.

If the usurper heirs had utilized the gold coins of the mayyit, they have to pay the other heirs in the form of gold coins. They will have to buy gold coins at today’s price and pay the heirs therewith. The value of the coins five years ago has no validity. There are therefore three options to settle the usurpation:

(1) Pay in the form of tangible assets

(2) Pay the current value of the assets

(3) Arrange a compromise settlement acceptable to the aggrieved heirs.

Usually the mayyit’s vehicles are appropriated and misappropriated by the sons who utilize the vehicles to the exclusion of the daughters and other heirs. This issue should be resolved the very day of demise, immediately after burial of the mayyit. A price mutually agreed on should be fixed for the vehicles. Whoever among the heirs desires to retain the vehicles will have to pay the price minus his share. The cash should then be divided among the heirs in accordance with the law of Inheritance. It is haraam for any one heir to simply take possession of a vehicle and utilize it for himself to the exclusion of the others. The heir purchasing the vehicle/s may arrange to pay the other heirs in instalments. It should however be remembered that all dealings have to be by mutual co-operation and agreement. An heir by virtue of his seniority has no right of imposing his will and decision on the other heirs.

It should be expected and accepted that there will have to be a degree of compromise in the process of physically dividing the assets. Most assets cannot be physically divided into bits and pieces. For a successful settlement in this area, the attributes of Imaan play a prominent role. We are not expected to behave like animals and such persons who have no belief in the Aakhirah and the Reckoning in the Divine Court. When distributing the assets, always bear in mind the following advice and promise of Rasulullah (sallallahu alayhi wasallam):

“I guarantee a (special) palace in the middle of Jannat (i.e. the prime site in Jannat) for one who abandons a dispute despite him being rightful (in his claim).”

The score of the household furniture, crockery, cutlery and the mayyit’s clothing, etc. should be settled on the very day of the demise. The distribution of these items should be effected by physical division of the various items into lots of approximately equal value, or individual articles should be sold to heirs who wish to acquire such items or by compromise settlement.

It is of great importance to understand that gifts made by heirs of their shares or waiving of their rights are not valid prior to taking physical possession of their respective shares of the assets. Thus, if an heir makes a ‘gift’ of his/her share of the assets, such gift will not be valid. The heir still retains his/her right. He/she should first be given physical possession of his/her share of the assets. Thereafter, the heir may decide what to do with the assets.

Many people simply donate the mayyit’s clothes to charity. This is not permissible. If all the adult heirs unanimously decide to make a donation of the clothes or of any specific item, then too the rule of possession is essential. The garments should be physically divided into lots and handed over to the heirs. Thereafter they may donate whatever they wish and to whomever they wish. It is impermissible for an heir to canvass the others and to induce them to donate any part of their assets to charity, etc.

The shares of minor (naa-baaligh) heirs have to be compulsorily held in trust until they are of discerning age capable of handling their own finances.

This discussion is a brief outline of the action which should be taken by the heirs immediately after burial. An inventory of all the assets immediately after burial is Waajib. All other related issues – and there are many – should be solved and settled with the guidance of Ulama who are experienced in the matter of Inheritance.

Usurpation of the assets of heirs is akin to the crime of murder for which ‘everlasting’ punishment in Jahannum has been threatened.

ILMUL FARA-IDH (Knowledge of Inheritance)

Fara-idh is the plural of Fareedhah which literally means something which has been fixed or determined. Since the Qur’an Majeed has fixed the shares of the different heirs in the estate of the Murith (the deceased whose estate they inherit), this branch of knowledge is called Fara-idh. Inheritance is called Meerath.

The Qur’an and Hadith place great emphasis on the knowledge of Meerath and Fara-idh. Rasulullah (Sallallahu alayhi wassallam) exhorted much the acquisition and teaching of Ilmul Fara-idh. In this regard he said:

“I shall be taken away. Learn Fara-idh and teach it (to others). The time is near for the door of Wahi to be closed. The time for the disappearance of knowledge will dawn when two persons will dispute regarding a necessary mas’alah (deeni question) and they will find no one to decide the dispute.”

Speaking on the virtues of Fara-idh, Rasulullah (Sallallahu alayhi wasallam) said:

“O people! Learn Fara-idh. It is half of knowledge.”

In view of the importance and significance of inheritance, its knowledge is described as `half of knowledge’.

Regarding the disappearance of this knowledge, Rasullallah (Sallallahu alayhi wasallam) predicted:

“The first (branch of) knowledge which will be taken away from my Ummah will be Ilmul Fara-idh.”

Emphasising the importance of Ilmul Fara-idh, Hadhrat Umar (radhiyallahu anhu) said:

“O people! Learn Fara-idh with the same concern and effort with which you learn the Qur’ an.”

“O Muslims! Learn Fara-idh. It is an essential part of the knowledge of your Deen. “

Hadhrat Abu Musa (radhiallahu anhu) said:

“Whoever has learnt the Qur’an, but not Fara-idh is like a head without a face.”

Allah Ta’ala, by his infinite mercy brought man into existence from the state of pure non-existence and placed him on earth to live here for a short while. For his earthly sojourn, his Creator, Rabbul Alameen, bestowed a variety of material provisions to him. These provisions for sustaining his earthly life have been awarded to man temporarily. The wealth, property, garments and whatever have been assigned to his custody are not his property. He is not the owner of these divine bestowals. Their only owner is Allah Azza Wajal, the Creator, Sovereign and Owner of the Universe. Nothing in man’s possession belongs to him.

When man’s term of life comes to an end, the bounties which were on loan to him revert back to Allah Ta’ala, The Original and True Owner. Hence, man is not permitted to dispose of his estate according to his wishes and desires. His outer facade of ownership of `his’ possession ceases with death. Man, therefore has no right of operating in the wealth which was bestowed to him for his benefit in this earthly sojourn. Upon his death the rights of others – the heirs – become automatically related to the estate he left behind.

Thus, it is an act of grave transgression for a man to attempt to assert his non-existing right and authority in the estate which he will be leaving behind. In so doing, he is guilty of two great sins and acts of transgression, namely:

(1) Usurping the Huqooq (rights) of the rightful (heirs).

(2) Flagrant violation of Allah’s command pertaining to Inheritance.

The divine punishment for such flagrant transgression is severe in the Aakhirah. According to one Hadith, Rasulullah (Sallallahu alayhi wasallam) said that there are some people who spend a lifetime in acts of worship and obedience, however, on the eve of their meeting with Allah Ta’ala, i.e. when about to die, they usurp the rights of the heirs. In consequence, they are despatched directly to Jahannam. Heirs are either deleted from the testator’s will or their divinely-fixed shares are tampered with.

Rasulullah (Sallallahu alayhi wasallam) also said that whoever deprives an heir of his rightful due, will be deprived of Jannat. Thus, the Muslim who violates the Shariah’s laws of Inheritance is destined for the chastisement of the Fire before he can enter Jannat. Violation of the divine laws of Meerath is akin to Kufr, hence the Qur’an declares the punishment for such flagrant violators in the following very stern and severe tone and terms:

“Allah will cast him into the Fire; forever will he dwell therein; and for him will be a disgraceful punishment.”

Extension of one’s transgressions to even the period after death is not a transgression of small measure. The sin is vile in the extreme. There is no pleasure in the perpetration of this flagrant sin, the effect of which will manifest itself after the death of the perpetrator.

While he destroyed his life of the hereafter by his wretched sin of defrauding and depriving the divinely appointed heirs of his estate, he derives no nafsani pleasure from his evil commission.

As a result of greed, baseless hopes and deficiency of Iman, most people fail miserably in the execution of the Shariah’s laws of Meerath. Their attachment to the worldly possessions in their custody blinds their rational and spiritual faculties, constraining them to make a vain attempt to extend this worldly love even to their lives in Barzakh (the state of life after earthly death and before Qiyamah). In a futile endeavour they seek to control what never belonged to them, even after death. Indeed, this evil attitude indicates an evil death.

When the Mu’min departs from this transitory abode, he should be liberated from all worldly encumbrances However, it is observed that numerous people depart with a heavy load of sin – such sin for which there is no hope of repentance. When man had bequeathed his estate in flagrant violation of the Shariah’s code of Meerath, this transgression while having been enacted in his lifetime, comes into effect after his maut. He thus is denied the opportunity to make amends, to rectify this usurpation of rights and to repent. Unlike all other sins for which there is always the opportunity to set right the wrong and for repentance, there is no such opportunity to rectify the injustice and violation from a Haram testament made by the Mayyit (deceased). Hell-Fire being the destination of such an oppressor should, therefore, be easily understandable.

ABUSE AND VIOLATIONS

A man writing out his last will and testament abuses the rights of the heirs and violates the sacred command of Allah Ta’ala regarding inheritance in several ways:

1. By deleting an heir:

Some people attempting to supersede the wisdom and command of Allah Ta’ala consider it unnecessary to include in their will the names of daughters, especially if they happen to be married to wealthy husbands. A disobedient child is also excised from the will.

2. By reduction in the fixed shares:

Sometimes, a man feels that a certain heir is not deserving of the share granted to him/her by the Shariah. The testator, therefore, tampers with the fixed share and reduces it according to his fancy. Thus, a daughter’s share or a disobedient son’s share is reduced. The affluence of a married daughter and the disobedience of a child are not recognised by the Shariah as valid grounds for tampering with the Shar’i shares in any way whatsoever.

3. By the imposition of un-Islamic restrictions:

Those leaving behind large estates are generally the perpetrators of this violation. They stipulate that the estate’s winding up be prolonged for years. Heirs are denied immediate possession of their shares. Baligh (adult) heirs are treated as minors because they have not reached the kuffaar age of adulthood, viz. 21 years. Men lacking in Deeni knowledge, bereft of taqwa and deficient in Iman are appointed as executors and administrators who impose on the heirs the norms and restrictions of a kaafir law and life-style.

4. By discriminating in the assets of the estate:

Some people discriminate in the assets of their estates. Part of the estate is bequeathed to an heir while the remainder is subjected to the Shariah’s law of inheritance, e.g. the house is bequeathed to the wife and the rest of the estate is distributed according to the law of inheritance.

5. By the introduction of non-heirs into the distribution:

Some people implying to have more mercy than Allah Ta’ala (Nauthubillah!) consider it essential to bequeath the share of a deceased son to his children (i.e. the grandchildren of the testator). Some again feel the need to regard an adopted child as an automatic heir on par with their own children or in the absence of their own children, as their own child.

6. By bequeathing more than a third to an outsider, i. e. one who is not an automatic heir:

A wasiyyat (bequest) in excess of one third the value of the estate to an outsider is neither permissible nor valid.

7. By denial of the rights of creditors:

No provision is made for the paying of creditors who have no legal right of claiming according to the law of the land. The debt having been incurred in a fictitious arrangement such as a limited company or close corporation is overlooked inspite of the right of the creditors being related to the estate of the deceased.

The aforementioned examples are all grave violations of Islam’s laws of inheritance and constitute flagrant acts of transgression which invoke the wrath and severest punishment of Allah Ta’ala.

It does not behove the servant of Allah Ta’ala to submit the issue of inheritance to his understanding. The All-Wise Creator knows what is best for all. He says in the Qur’an Majeed:

 “Your fathers and your sons – you do not know who among them is closer to you in regard to benefit (for you). (These Shares are) Shares fixed by Allah. Verily, He is fully aware and wise.”

[The information below is based on the law in South Africa. There may slight changes required for other countries running under non-Muslim law. Edit as required.]

WHAT YOU HAVE TO DO TO RENDER THE WILL VALID AND LEGAL

1) The testator (i.e. the one who makes a will) and two witnesses must sign each page of the Will.

2) The witnesses must not be under 14 years of age. They must be 14 or over.

3) The witnesses may not be beneficiaries or spouses of beneficiaries. For the purpose of signing Wills, ‘beneficiaries’ include the executors, administrators and guardians.

4) All signatories must be present throughout the signing process. No signatory may leave the room until all signatories have signed each page.

5) The date of signature should be inserted on the last page by the testator.

6) Any deletion, addition or alteration must be identified by the signatures (full signatures) of the testator and witnesses as described in No. 4, above.

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IF YOUR MARRIAGE IS REGISTERED IN COMMUNITY OF PROPERTY

If by some misfortune you have registered your marriage in community of property, the Islamic Will will not be valid in terms of non-Muslim law. However, if for some reason you have cancelled or cancel your community of property contract, you can renew the registration of your marriage, if you so desire. When doing so, first enter into an Ante Nuptial Contract. Such a contract will enable you to make an Islamic Will which will be valid even in terms of the law of the country.

Since it is compulsory according to the Shariah to distribute the deceased’s estate in accordance with the Law of the Shariah, Muslims should make out an Islamic Will even if their marriages have already been registered in community of property. Although in this case the Islamic Will will not be valid in terms of kuffar law, nevertheless the testator should advise and instruct his Islamic heirs to fear Allah Ta’ala and to act in accordance with the Islamic laws of inheritance in the distribution of the estate. After the non-Muslim law has taken its course, the Islamic heirs must arrange a proper re-distribution of the deceased’s estate to conform with the Command of Allah Ta’ala.

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WASIYYAT

According to the Shariah, Wasiyyat is permissible for a non-heir. Wasiyyat in favour of an inheritor is not permissible. Clause No.5 (iii) of the Islamic Will makes mention of Wasiyyat. If the testator makes no wasiyyat, section (iii) of clause No.5 should be deleted by striking a line across it. All signatories should identify the deletion with their full signatures. If the testator wishes to make wasiyyat, the nature and description of the wasiyyat should be set out on a separate sheet of paper. On top of the sheet of the Wasiyyat paper, write: SCHEDULE A – WASIYYAT.

When making out the Wasiyyat, bear in mind the following:

a) A wasiyyat cannot be made for any Islamic heir as such Islamic heirs inherit automatically in the estate of the deceased.

b) A wasiyyat is valid in only one third of the balance of the estate after payment of funeral expenses and debts.

c) The Wasiyyat paper, viz., Schedule A, must also be signed by the testator and the witnesses

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If you require further clarification or information, do not hesitate to write to: MUJLISUL ULAMA OF SOUTH AFRICA, P.O.BOX 3393, Port Elizabeth, 6056 South Africa mujlisul.ulama@gmail.com

LAST WILL AND TESTAMENT

I, the undersigned ………………………………………………………………………………………………………………………  of

 ………………………………………………………………………….. hereby declare that this is my Last Will and Testament.

1. I revoke, cancel and annul all previous Wills, Codicils and other testamentary writings or statements made or executed by me at any time before.

2. I hereby nominate, constitute and appoint as the Executors of this my Will and Administrators of my Estate, the following persons:

(i)

(ii)

(iii)

In the event of any one or more of my said Executors or Administrators predeceasing me, or dying during his term of Office or declining to act, then the remaining or surviving Executors shall be authorised to act alone. Furthermore in the event of all such Executors or Administrators predeceasing me or dying during his term of office or declining to act, then I declare that anyone of the judicial bodies mentioned in Clause 6 shall be authorized to appoint one or more Executors or Administrators.

3. I hereby grant to the Executors of my Estate all such powers as are allowed by Law, especially the power of assumption.

4. I hereby direct that it shall not be necessary for my said Executors and Administrators, or any one of them in the event of the predecease of the others, to lodge security with the Master of the Supreme Court for the due performance of their duties.

5. I hereby direct that the Executors and Administrators of my Estate proceed with the distribution of my Estate in the following order of priority as commanded by Islamic Law of the Sunni School of Thought.

(i) Payment of my funeral expenses.

(ii) Payment of all my debts.

(iii) Payment of the Wasiyyat (Bequest) which is set out in Schedule A annexed hereto.

(iv) Distribution of the residue of my Estate to my Islamic heirs in accordance with Islamic Law of the Sunni School of Thought.

6. I hereby direct that a Certificate issued by the Jamiatul Ulama of Gauteng (admin@thejamiat.co.za) or the Jamiatul Ulama of the Eastern Cape or the Mujlisul Ulama of South Africa (mujlisul.ulama@gmail.com), these being competent Islamic Judicial bodies, or by any qualified Aalim in Islamic Law shall be binding and conclusive as to the aforesaid Islamic Law and the distribution of my Estate. A qualified Aalim in Islamic Law for this purpose will be any man recognized as a qualified Aalim by any one of the Judicial bodies aforementioned.

7. I direct that any share under this my Will hereto devolving upon a female be paid to and become her sole, absolute and exclusive property, and be excluded from the community of property that may now or hereafter exist between her and any husband she has married or may marry and shall be free from the jus mariti and right of administration ordinarily to him accruing whether by virtue of the law of community of property or otherwise. The receipt alone of any female inheritor in my Estate, without the assistance of her husband, shall be a good and sufficient discharge to my Executors and/or Administrators therefor.

8. I hereby direct that any inheritance accruing to a minor child in terms hereof shall not be paid into the Guardians Fund but shall be held in Trust by my said Administrators until the said minor attains the age of majority in which event my said Administrators shall pay over to the said minor his/her share of the inheritance. The ‘age of majority’ mentioned herein above shall be as determined by Islamic Law. My said Administrators shall be empowered to invest assets held in Trust in such investments as my Administrators may in their discretion determine provided that the investments are in accordance with Islamic Law. And my Administrators are authorized in their discretion to apply the income and in case of need a portion of the capital of the Trust assets for the maintenance, education and general welfare of the beneficiary of the Trust provided that any such application of income is in accordance with Islamic Law.

9. I direct that my Estate shall be wound up as expeditiously as possible until the final approval of the liquidation and distribution account.

10. I hereby direct that the Wasiyyat (Bequest) described in Schedule A, hereto, be examined by any one of the Islamic Judicial bodies mentioned in No. 6 above, or by any competent Aalim described in No. 6 above, and a certificate as to the validity of the Wasiyyat (Bequest) in Islamic Law be obtained from the Islamic Judicial body concerned. I direct that if the Wasiyyat (Bequest) stated in Schedule A hereto, be in conflict with Islamic Law, the Islamic Judicial Body concerned in examining this Wasiyyat will have the right to annul the Wasiyyat, the whole of it, if the whole be in conflict with Islamic Law or annul that portion of the Wasiyyat, which conflicts with Islamic Law.

SIGNED by me, the Testator/Testatrix, in the presence of the two undersigned Witnesses.

……………………………………………….

TESTATO/ TESTATRIX SIGNED by the Testator/Testatrix in the presence of us both, and in the presence of each other have affixed our signatures hereto as witnesses.

AS WITNESSES:

TESTATOR 1. …………………………………………..

TESTATOR 2. …………………………………………..

ISLAMIC DATE …………………………………………..

ENGLISH DATE …………………………………………..