AUTHOR’S DETAIL:

Sakagni Majhi

(B.A. L.L.B Hons.)

Hidayatullah National Law University

ISLAMIC INHERITANCE: THE ONE-THIRD RULE

INTRODUCTION:

In a world where wills symbolise personal discretion, the Islamic law of inheritance takes a
unique narrative, prioritising divine justice and social equality over personal discretion. The
very centre of this system is the “one-third rule”, limiting the testamentary bequest, i.e.,
wasiyyah, to just one-third portion of a person’s estate. The remaining two-thirds shares are
reserved for the Quranic heir through a fixed share, after all the debts and obligations are
fulfilled. This structure of allocation is known as ‘ilm al-farāʾiḍ’, which aims to uphold
individual moral obligations and to protect the vulnerable members of society, particularly
women and children. As such, the Islamic Law of inheritance is not just a legal instrument but
a communal system of wealth distribution.

ISLAMIC INHERITANCE: THE CONCEPT:

The Islamic law of inheritance is one of the most important components of Shariah and is
derived from the Quran, the Hadith, and the Fiqh, i.e., Islamic jurisprudence. Unlike other
legal systems for inheritance, the Islamic inheritance system is heavily controlled by the
testator’s preference or emotion, symbolising objectivity and fairness. The very core of
Islamic inheritance lies in the concept of fixed share (farāʾiḍ), explained thoroughly in the
Surah An-Nisa, which provides for the prescribed fixed share to the close family members,
and in the absence of those, the distant relative. These shares are non-negotiable, so as to
prevent any sort of favouritism or accumulation of wealth. By such a system, the Islamic law
ensures economic justice, family solidarity, and spiritual accountability.

THE ROLE OF WASIYYAH:

While it is true that the inheritance system under Islamic law is governed by a fixed share,
there still exists the concept of testamentary succession through the concept of will or
wasiyyah. However, this liberty is also highly restricted through the “one-third rule,”
whereby an individual is only allowed to give away one-third of their estate as wasiyyah, and
also only to individuals who are covered by the Quran as rightful heirs. The purpose of
wasiyyah is to allow the testator to gift a certain portion of his estate on the basis of any
personal and moral preference or any charitable obligation. This may also include leaving a
certain portion for friends, community members, servants, or for the cause of Sadaqah, Zakat,
or Hajj.

The major restriction to the concept of will or wasiyyah is that it can be done for the benefit
of any direct heirs, i.e., any individual who is already receiving a share by virtue of being a
Quranic heir. This restriction underscores how the Islamic law of inheritance is committed
towards preserving divine justice over unjust enrichment.

LEGAL PREREQUISITES AND ETHICAL LIMITS OF WASIYYAH:

The validity of wasiyyah or will under the Islamic law of inheritance depends on fulfilling
specific legal or ethical conditions. The very primary condition for the testator to possess
mental competence and make the will voluntarily, without any coercion or undue influence.
Next, the contents of the wills must align with the Islamic principle of inheritance and must
not conflict with any of the Quranic injunctions. This includes the “one-third rule” and the
restriction of making will for the favour of any Quranic heir.

These principles are absolute when we talk about the concept of wasiyyah or will under
Islamic law, and any conflict with any of the principles makes the will invalid or
unenforceable. The absoluteness reflects the Islamic philosophy of inheritance, wherein
inheritance is not a matter of estate but rather a reflection of moral and divine responsibility.

ALLOCATION OF THE ESTATE:

Under the Islamic law of inheritance, the distribution of the estate is governed through the
concept of fixed shares as prescribed by the Quran. However, prior to the distribution of
shares to the heirs, the settlement of all the debts is to be done. Firstly, the settlement of
funeral expenses, followed by the repayment of financial debts such as loans or mortgages,
and then the clearance of religious duties, such as the Zakat, Kaffarat, or Hajj.

After the fulfilment of all these duties and obligations, the estate can finally be distributed
among the rightful heirs. Firstly, through following the wasiyyah, provided it is a valid
wasiyyah and does not conflict with the principles of the Quran, and after that, the remaining
can be shared among the Quranic shares through the concept of fixed shares. These fixed
shares in the Quran are based on gender, relation proximity, and familial responsibility. For
instance, a wife receives one-fourth of her husband’s estate if there are no children and one-
eighth if there are.

In the absence of immediate heirs, the principle of Asabah comes into play, i.e., the residuary
inheritance. In this, the distant male relatives are allowed to inherit the estate through fixed
shares as prescribed in the Quran. This system aims to ensure that wealth is not just seen as
personal entitlement but rather as a moral duty. By such a system, the Islamic law of
inheritance ensures that wealth is distributed fairly, keeping in mind the vulnerable members,
as well as preventing any accumulation of wealth.

CONCLUSION:

The Islamic law of inheritance, through the concept of the “one-third rule,” takes a unique
approach to the concept of will, showcasing a unique socio-legal approach. It restricts
personal discretion so as to ensure fairness in estate allocation and protect the societal
obligation of the testator. As such, wasiyyah, rather than being a mere legal document, has
become an instrument of divine justice.

Thus, we can say that the Islamic law of inheritance today stands as a strong legal structure of
fairness and economic equity, wherein individual freedom is respected but not at the cost of
collective justice.