Inheritance Law (1):
Inheritance is the involuntary devolution of property to a persons legal hairs.
Under Islamic law, a persons right to disinherit (aaq) his/her legal heirs, inter
vivos or through testamentary disposition, is not recognized.
General Principles of Inheritance:
If deceased and legal heirs belong to different sects or religion, then
inheritance laws of the deceased will be applied, not of the heirs.
Right to inheritance becomes vested at the death of the propositus (the
person from whom line of descent is traced) and is not lost at the death of
the heir before the distribution of the property.
Bar to inheritance:
Following incidents deprive a legal heir from getting a share in inheritance:
Murder by a legal heir of a person from whom to inherit, deprive him/her
and his/her descendants of deceased property.
Illegitimate child inherits from mother and vice versa under Hanafi law.
Such child cannot inherit from either parent under Shia law.
Non-Muslims cannot inherit from Muslims and vice versa. Property of an
apostate is distributed to his legal heirs during his lifetime.
Two main schools of Islamic Inheritance Law: Sunni and Shia.
1. Sunni Inheritance Law.
Categories of Legal heirs
1. Sharers (Quranic heirs);
2. Residuaries; and
3. Distant kindred
Order of Priorities in Inheritance
1. Sharers (Quranic heirs) 2. Residuaries (Agnatic heirs) 3.
Radd/Return to Sharers 4. Distant Kindred (Uterine heirs) 5.
Radd/Return to Spouse 6. Universal Legatee (a person who is not a
legal heir and in whose favour property is left under a will) 7. Bait ul
Maal
Categories Explanation:
1. Sharers (Quranic Heirs):
Their shares specified in Quran: 4 males and 9 females
1. Males:
1. Father 1/6,
2. Grandfather 1/6 (in the absence of a father),
3. Husband 1/4 (in the absence of children and 1/8 otherwise), and
4. Uterine brother (in the absence of a father 1/6, and 1/3 if more
than one).
2. Females:
1. Mother 1/6 (in the presence of children),
2. Paternal grandmother 1/6 (in the absence of a mother),
3. Maternal grandmother 1/6 (in the absence of a mother),
4. Wife 1/8 (in the presence of children) or 1/4 (in the absence of children),
5. Daughter 1/2 (in the absence of a son and alone) or 2/3 (two or more than two),
6. Sons daughter 1/2 (in the absence of a daughter and alone) or 2/3 (two or more
than two),
7. Full sister 1/2 (in the absence of a father and children, and alone) or 2/3 (two or
more than
Two),
8. Consanguine sister 1/2 (in the absence of a full sister and alone) or 2/3 (two or
more than
Two), and
9. Uterine sister 1/6 (in the absence of a father and alone) or 1/3 (two or more than
two)
2. Residuaries (Asbat): Some pre-Islamic customs regarding
inheritance were kept intact by Islam. These are of three kinds:
1 Residuaries in their own right
This category includes the following male relatives:
1. Male descendants how low so ever (eg son and sons son),
2. Male ascendants how high so ever (eg father and true
grandfather),
3. Deceaseds brother how low so ever (eg full and consanguine
brother and their son(s)), and
4. Brother of male ascendants how low so ever (eg full uncle and
consanguine uncle and their
son)
2. Residuaries in anothers right
These are female Sharers who are converted into Residuaries in the
presence of their male counterparts provided the latter possess the
same level and same proximity of relationship with the deceased:
1. Daughter(s) along with son(s),
2. Sons daughter along with sons son,
3. Full sister along with full brother, and
4. Consanguine sister along with consanguine brother
3. Residuaries together with another
1. Daughter(s) converts sister(s) (full as well as consanguine) into
this category;
2. Daughters remain as sharers even after conversion of sisters as
Residuaries. Once daughters have their prescribed share, the rest
will be inherited by sisters; and
3. After conversion, sisters start behaving like their male
counterparts (eg full sister excludes consanguine brother and full
brothers son).
3. Distant kindred
They are divided into two types:
1 Maternal relatives (eg maternal grandfather, maternal uncles and aunts and
their children); and
2 Paternal relatives other than Sharers and Residuaries (eg daughters children,
sisters children, paternal uncles wife)
There are three ways of distribution among distant kindred:
1. Ahl al-Rahm (now obsolete)
2. Ahl al-Tanzil (followed by the Hanbali, Shafii, and Maliki schools)
3. Ahl al-Qarabah (followed by the Hanafi school and applied in Pakistan)
According to the last mentioned (Ahl al-Qarabah) way of distribution, the
legal heirs are divided into following categories:
a. Descendants of a deceased (daughters children);
b. Ascendants of a deceased (false grandfather, false grandmother);
c. Relatives of a deceaseds parent (sisters children, brothers daughter, uterine
brothers son); and
d. Relatives of a deceaseds grandparents (paternal uncles wife, maternal uncles
and aunts, and their children).
The legal heirs placed in category no. 1 will exclude the legal heirs of
the rest of categories.
The legal heirs in category no. 2 will not allow the remaining categories
(3 & 4) to inherit anything.
Likewise, the legal heirs of category no. 3 will exclude the legal heirs of
category no. 4. Once we have the legal heirs of one category entitled
to have their share, they will be given share on the principle that a
male will have double the share of a female.
Principle of Exclusion
Under the principle of exclusion, one legal heir is excluded by another from
inheritance on the basis of nearness in relationship with a deceased. Exclusion could
be partial or complete.
Under this principle, nearer relative excludes the remoter relative. Thus a father
excludes the grandfather. Son excludes sons son. Mother excludes
paternal/maternal grandmother. After the
Sharers are given their prescribed share, the property is distributed among the
Residuaries in such
A way that descendants exclude ascendants (son excludes father) and ascendants
exclude
Collaterals (father exclude brother, and brother exclude uncle).
Six legal heirs cannot be completely excluded. They will inherit something
from the estate though their shares are susceptible to variation:
a. Father,
b. Mother,
c. Son,
d. Daughter,
e. Husband, and
f. Wife.
Principle of Radd (Return)
This principle is applied when we are required to distribute estate among
Sharers only in the
absence of Residuaries. Sharers may not consume the entire estate in the first
round of distribution.
Hence, they are once again given some share in the estate as per their original
prescribed share.
Spouses are not entitled to have any property under the principle of Radd even in
the presence of
distant kindred.
Principle of Aul (Increase)
When the calculated shares of Sharers exceed the supposed shares, the latter are
also increased to
correspond the figure of the calculated shares. After the application of Aul, though
number of
shares remain the same but the quantity of shares decrease and sometimes
substantially. Thus six
may convert into seven, eight, nine, and ten may convert into thirteen, fifteen and
seventeen.
Twenty-four may convert into twenty-seven.
