PER/PELJ - Pioneer in peer-reviewed, open access online law publications
AuthorMH Sungay
Affiliation University of Western Cape, South Africa
Email mhsungay@uwc.ac.za
Date Submitted 4 December 2023
Date Revised 25 June 2024
Date Accepted 25 June 2024
Date Published 16 October 2024
Editor Mr M Laubscher
Journal Editor Prof W Erlank
How to cite this contribution
Sungay MH "To Bequeath or not to Bequeath? A South African Law Analysis of the "Problematic Areas" Found in the Islamic Law of Intestate Succession" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17394
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17394
Abstract
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The fairness of the Islamic Law of compulsory succession |
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Keywords
The Islamic law of compulsory succession; fairness; problematic areas; equitable distribution; lawful remedies.
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1 Introduction
There is a common belief that many human rights and the Islamic law of succession (finding its basis in the Holy Qur'ān and the Prophetic teachings)
1
* Mohamed Hoosain Sungay. LLB, LLM. Lecturer, Faculty of Law, University of the Western Cape, South Africa. Email: mhsungay@uwc.ac.za. ORCID: https://orcid.org/0009-0006-2576-6581. 1 Mzee 2016 Journal of Law, Policy and Globalization 55. 2 Abduroaf and Moosa "Islamic Law Mode of Estate Distribution" 458. Also see Sungay 2023 LDD 452 for examples of where this belief is stated. 3 Estate remaining after all liabilities have been paid. Person X at the date of his death had no liabilities on his name. 4 The phrases "compulsory succession" and "intestate succession" are interlinked at many points in this article. See Part 2 of this article for an elaboration of why the interlinking of these phrases is appropriate.
This article is a condensed version of the author's LLM mini-thesis,
5
5 Sungay Constitutional Legitimacy. 6 Examples of these texts include Gabru 2005 Obiter; Abduroaf 2019 De Jure; Sungay 2022 Manchester Journal of Transnational Islamic Law and Practice; Abduroaf 2020 Obiter and Moosa Comparative Study.
The discussion that follows refers to the male and female genders and uses the accompanying pronouns "he" and "she" (or "their" for collective reference). This use is provided for on the basis that the Islamic law of succession specifies rules for each of these genders.
7
7 See Ali Holy Qur'an 4:11, 4:12 and 4:176.
2 An overview of the Islamic law of succession incorporating both testate and intestate succession
The method for allocating a deceased person's assets is prescribed by the Islamic law of succession.
8
8 Sungay 2023 LDD 452. 9 Sungay 2022 Manchester Journal of Transnational Islamic Law and Practice 55.
2.1 Liability claims against the estate
Ensuring that all obligations are paid is the first step in dispersing the estate of a Muslim person.
10
10 An in-depth explanation of these expenses is beyond the scope of the central focus of this article. See Abduroaf Deceased Estates 38-39. 11 Abduroaf Deceased Estates 38-39. 12 Estate available prior to any deductions.
2.2 The testate estate (Wasiya)
The testate estate
13
13 Commonly referred to as the Wasiyah in Arabic terms. 14 See Sunnah.com 2022
https://sunnah.com/nasai:3643
, where the Holy Prophet Muhammad (pbuh) is quoted to have said: "[I]ndeed, Allah has given every owner of right his due right. Therefore, no bequest can be bequeathed to an inheriting Intestate Beneficiary." 15 See Abduroaf Deceased Estates 39. 16 Sungay 2022 Manchester Journal of Transnational Islamic Law and Practice 55.
2.3 The intestate estate
The remainder of the estate, after all liabilities and testate bequests have been paid, is referred to as the intestate estate. The Holy Qur'ān contains a formula dictating who the beneficiaries of this portion of an estate are. For this reason, the author alludes to this distribution of an Islamic estate as the compulsory estate.
These intestate beneficiaries are primarily set out in Chapter 4 (Surah Nisa) verses 11, 12 and 176 of the Holy Qur'ān.
17
17 Sungay 2023 LDD 453. 18 These beneficiaries are defined as an intestate beneficiary who inherits a prescribed fractional share. These beneficiaries by relation are expressly mentioned in Chapter 4 (Surah Nisa) verses 11, 12 and 176 of the Holy Qur'ān. See Abduroaf Deceased Estates 17 for further reading on this subcategory. 19 These beneficiaries are defined as intestate beneficiaries who inherit the residue of the intestate inheritance after the sharer beneficiaries have inherited their respective shares. See Abduroaf Deceased Estates 17 for further reading on this subcategory. 20 The reason for which daughter B and son Z's not being included in this category will be expanded on in Part 2.4 of this article.
2.4 The distribution of person X's estate according to the Islamic law of compulsory succession
Person X, as provided for in the introduction of this article, bequeathed 7/64 of his net estate to his daughter B (born out of wedlock) and 7/64 to his adopted son Z. We shall assume for the sake of an accurate comparison
between the two normative systems investigated in this article, that after all liabilities have been settled, the net estate equates to R1 000 000.
It is provided that daughter B was born 4 months and 25 days after the conclusion of the marriage between person X and her mother A.
21
21 The relevance of the birth date after the conclusion of the marriage for inheritance purposes will be discussed in 2.4.3 of this article.
2.4.1 Widow A's share
A widow is entitled to inherit either a quarter or an eighth of the intestate estate. The specific share due is dependent on the presence of children.
22
22 Ali Holy Qur'an 4:12. 23 Kafumbe 2010 Human Rights Review 208.
2.4.2 The 2:1 share applying to daughter C and son Y
The Holy Qur'ān links a daughter's and son's inheritance shares in such a way that if the deceased leaves behind both sons and daughters, a son will receive double the share of the daughter.
24
24 See Ali Holy Qur'an 4:11, where it states: "Allah commands you as regard to your Children (Descendant Intestate Beneficiaries); to the male, a share equal to that of two females…". 25 See 2.4.3 and 2.4.4 of this article for a further discussion on the basis for these exclusions.
2.4.3 The disqualification of daughter B (conceived out of wedlock) from the intestate succession equation
It is crucial to understand from the onset that, with regard to the effects of the Islamic law of succession, an out-of-wedlock conception and an out-of-wedlock birth differ significantly from each other. The Islamic law of succession looks at the moment of conception and not the moment of
birth.
26
26 Abduroaf 2021 Obiter 131. 27 Mzee 2016 Journal of Law, Policy and Globalization 57. 28 Sungay Constitutional Legitimacy 18. 29 Abduroaf 2021 Obiter 131. 30 Fatwa Committee "MJC Position"; document on file with the author of this article. 31 Fatwa Committee "MJC Position"; document on file with the author of this article. 32 Abduroaf 2021 Obiter 131.
2.4.4 The omission of son Z from the compulsory succession equation
The Islamic law of succession provides three methods for an individual to establish an intestate inheritance relationship to the deceased. These relate to ties to the testator by marriage, emancipation
33
33 This in essence represents the act of freeing a slave from one's custody and ownership. 34 Abduroaf Deceased Estates 42
Son Z is considered to be in the first group under South African law, meaning that he is related to the deceased through blood ties.
35
35 This will be further expanded on in part 3.4 of this article.
(direct children born of an Islamic marriage),
36
36 Essop The Intersection between the Islamic Law of Inheritance 83-88 for further reading on this concept. 37 Abduroaf Deceased Estates 44.
3 An overview of the South African law of succession incorporating both testate and intestate succession
With a few exceptions, the distribution of an estate among South African citizens is comparable to that of an Islamic estate. The following subsections will deliberate on the claims present (in order of priority).
38
38 These descriptions will be done in brief to ensure the focus area of this article is maintained and the word count is abided to. See Abduroaf Impact of South African Law 66-94 for an in-depth reading on the aforesaid.
3.1 Liability claims against the estate
The two main categories of liability claims are administrative expenses
39
39 These include funeral costs, maintenance, and other administration costs. For further reading on an in-depth breakdown of these costs individually, see Sungay Constitutional Legitimacy 23. 40 Debts can be further broken down into secured debts v unsecured debts. See Majaski 2022
https://www.investopedia.com/ask/answers/110614/what-difference-between-secured-and-unsecured-debts.asp
for further reading on what these debts and their related consequences entail.
3.2 Testate succession claims
South African law grants an individual an almost unfettered freedom of testation.
41
41 Jamneck et al Law of Succession 143. 42 De Waal, Schoeman and Wiechers Law of Succession 3, where it states that common law restrictions include provisions of a will that are unlawful, against good morals, too vague or impossible to perform.
ensure that it complies with the South African Constitution, which forbids unfair discrimination.
43
43 See s 9 of the Constitution of the Republic of South Africa, 1996.
3.3 Intestate succession claims
Intestate succession claims represent the final claims that are to be settled from an estate. These claims are prescribed by legislation, specifically the Intestate Succession Act,
44
44 See ss 1(1)(a)–(f) of the Intestate Succession Act 81 of 1987. 45 Abduroaf Impact of South African Law 79.
3.4 The distribution of person X's estate according to the Intestate Succession Act 81 of 1987
As mentioned in part 2.3 of this article, we shall assume, for the sake of an accurate comparison between the two normative systems investigated in this article, that the net estate after all liabilities have been settled equates to R1 000 000. The Intestate Succession Act, as stated in 3.3 above, will apply to the distribution of person X's estate. Section 1(1)(a)-(f) specifies a number of factual situations that regulate how an intestate estate is divided in each situation. The section applicable to person X's situation is section 1(1)(c).
46
46 See s 1(c) of the Intestate Succession Act 81 of 1987, where it states: "is survived by a spouse as well as a descendant – (i) such spouse shall inherit a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and (ii) such descendant shall inherit the residue (if any) of the intestate estate;". 47 DOJ&CD 2015 https://www.justice.gov.za/master/m_docs/2015-05_chm-directive [cr2015-104].pdf. 48 Any surviving child of the deceased who can be an intestate heir as well as any deceased child of the deceased who leaves a descendant or descendants who can be an intestate heir or intestate heirs. In the practical scenario given in this article, all the children of person X (daughters B and C along with sons Y and adopted son Z) would constitute stirpes resulting in person X having four stirpes. 49 De Waal, Schoeman and Wiechers Law of Succession 14.
Before 1988 South African law disqualified a child born out of wedlock from the intestate inheritance equation of their father.
50
50 Abduroaf 2021 Obiter 128.
the revision of section 1(2) of the Intestate Succession Act, this viewpoint has now changed.
51
51 See s 1(2) of the Intestate Succession Act 81 of 1987, where it states: "Illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation." 52 See 2.4.4 of this article for an explanation on how the Islamic law of compulsory succession differs from this position.
When assessing the situation of adopted son Z, South African law further does not differentiate between biological children and adopted children. A reading-together of section 1(4)(e) of the Intestate Succession Act
53
53 Section 1(4)(e) of the Intestate Succession Act 81 of 1987: "An adopted child shall be deemed – (i) To be a descendant of his adoptive parent or parents." 54 Section 242(3) of the Children's Act 38 of 2005: "An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child." 55 See 2.4.4 of this article for an explanation of how the Islamic law of compulsory succession differs from this position.
In applying these principles to the case of person X, the first point of call would be to determine the value of the bequest made by person X. Person X bequeathed a share of 7/64 to both adopted son Z and daughter B. These shares calculate to R109 375 each (or R218 750 in total).
The intestate estate now equates to R781 250. In calculating the child's share, we utilise the number of stirpes present in the scenario i.e., his four children B, C, Y, Z, and wife A, thus equating to five. This implies that the child's share can be determined to be worth R156 250 in total (R781 250 divided by the 5 stirpes). Because this child's share is less than the sum specified by the Minister of Justice and Correctional Services as per section 1(c)(i) of the Intestate Succession Act (R250 000), wife A will be entitled to receive the stipulated amount of R250 000. Additionally, the remainder of the estate amounting to R531 250 (R1 000 000 – the net estate after liabilities) – R218 750 (the testate bequest) and R250 000 (wife A's portion) will be distributed evenly among the surviving descendants of person X. This results in each of the four children inheriting R132 812,50 (R531 250 ÷ 4).
4 Comparative table illustrating the distribution of person X's estate in both normative systems
The author of this article has tabulated the findings of the research to simplify the explanations in the above two subsections
Share distribution as per the Islamic Law of Succession |
|||
|
Testate Estate Share/Value |
Intestate Estate Share/Value |
Total Share/Value |
Wife A |
X |
R97 656.30 |
R97 656.30 |
Daughter B (born out of wedlock) |
7/64 = R109 375 |
X |
7/64 = R109 375 |
Daughter C |
X |
R227 864.58 |
R227 864.58 |
Son Y |
X |
R455 728.17 |
R455 728.17 |
Adopted son Z |
7/64 = R109 375 |
X |
7/64 = R109 375 |
|
R1 000 000 |
Share distribution as per the South African Law of Succession |
|||
|
Testate Estate Share/Value |
Intestate Estate Value |
Total Value |
Wife A |
X |
R250 000 |
R250 000 |
Daughter B (born out of wedlock) |
7/64 = R109 375 |
R132 812,50 |
R242 187,50 |
Daughter C |
X |
R132 812,50 |
R132 812,50 |
Son Y |
X |
R132 812,50 |
R132 812,50 |
Adopted son Z |
7/64 = R109 375 |
R132 812,50 |
R242 187,50 |
|
R1 000 000 |
5 Remedies Available in the Islamic Law of Succession for Muslims Wanting to Create a More Equitable Distribution in Terms of the "Problematic Areas"
The commonly contested area of the 2:1 division of inheritance in favour of the male will be the first area of investigation in this section. It is important to note from the outset that women do not always inherit half the share of men.
56
56 Sungay 2023 LDD 455. 57 Abduroaf 2020 De Jure 116. 58 See Ali Holy Qur'an 4:11, where it states: "[f]or parents, a sixth share of inheritance to each if the deceased left children". 59 See Khan Translation of the Meanings of Sahih Al Bukhari 477, where it states: "[t]he Prophet (pbuh) said, 'Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased.'"
Another example where a female inherits more of an intestate inheritance than a male can be seen where X dies, leaving behind a mother, a father, a widow and a child as the only intestate beneficiaries. The first computation assumes that the child is male, whereas the second assumes that the child is female. In the first calculation, the mother and father would both inherit a 1/6th share (4/24),
60
60 See Ali Holy Qur'an 4:11, where it states: "[f]or parents, a sixth share of inheritance to each if the deceased left children". 61 See Ali Holy Qur'an 4:12, where it states: "[i]n that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies that they may have bequeathed or debts''. 62 See Khan Translation of the Meanings of Sahih Al Bukhari 477, where it states: "[t]he Prophet (pbuh) said, 'Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." 63 See Ali Holy Qur'an 4:12 where it states: "if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half". 64 A situation whereby the numerator of an equation equates to more than the denominator. See Abduroaf Deceased Estates 101-104 for further reading on this concept.
find application and result in the new denominator being 26.
65
65 Abduroaf 2020 De Jure 117. 66 See Abduroaf 2021 Obiter for further examples exemplifying these instances.
Should a woman not be entitled to inherit the same or a greater portion of an inheritance than her male counterpart as per the Islamic distribution formula, there exist other ways to lawfully circumvent this. The testate bequest route will prove to be quite beneficial in resolving this issue. To illustrate this with a practical example, the scenario of person X will be altered to include only his wife A, his daughter C and his son Y. The distribution of this estate without a testate bequest being made in favour of daughter C would result in her inheriting less than her male counterpart.
67
67 Daughter C inheriting 7/24 and son Y inheriting 14/24. See Ali Holy Qur'an 4:11, where it states: "Allah commands you as regard to your Children (Descendant Intestate Beneficiaries); to the male, a share equal to that of two females". 68 See Ali Holy Qur'an 4:12, where it states: "And to them belongs a fourth of what you leave behind, if you die childless; and if you have any child then to them belongs one-eighth of what you have left behind". 69 See Ali Holy Qur'an 4:11, where it states: "Allah commands you as regard to your Children (Descendant Intestate Beneficiaries); to the male, a share equal to that of two females". 70 Abduroaf Deceased Estates 39.
A solution similar to the above can be implemented in regard to the omission of adopted children and the disqualification of children conceived outside of wedlock from intestate inheritance. As expanded on in Part 2.4.3 of this article, the 6 months rule presents one of the allowances in the Islamic law of compulsory succession to lawfully inherit as an intestate beneficiary.
71
71 See 2.4.3 of this article for further reading on this.
Should the descendant not fall in this category, which would enable him to inherit as an intestate beneficiary, other remedies do exist. The remedy that will be recommended in this section follows the same approach as the aforementioned remedy utilising the testate bequest and endowment of gifts to accommodate such exclusion. Person X foresaw the possibility of daughter B and adopted son Z not being considered intestate beneficiaries, so he rightfully utilised the testate bequest avenue by awarding them the testate estate share. This demonstrates that the exclusion of these individuals can be lawfully circumvented. The Islamic laws of inheritance can thus be worked to allow excluded children, whether through adoption or conceived out of wedlock, a right of inheritance. It is therefore advised that Muslims in South Africa and worldwide utilise the available resources to place adopted children and children conceived out of wedlock on the same footing as those conceived in marriage.
72
72 Abduroaf 2021 Obiter 135.
6 The rationale for these areas of the law
6.1 The rationale for the 2:1 general rule in favour of the male
Chapter 4 verse 34 of the Holy Qur'ān contains an acclaimed justification for the general rule affording the male double the intestate inheritance of his female counterpart.
73
73 See Ali Holy Qur'an 4:34, where it states: "Men are the protectors and caretakers of women, as men have been provisioned by Allah over women and tasked with supporting them from their means". 74 Abduroaf 2020 De Jure 119. 75 An individual who has been entrusted with the obligation God has levied on him to see to the needs of and represent another. This individual is regarded as her physical and financial protector from birth to death, and including death. See Moolla Imperative to Implement Muslim Personal Law 15-17 for further reading on this concept. 76 Farooq 2019 Granite Journal 21. 77 Farooq 2019 Granite Journal 21. 78 See Ali Holy Qur'an 2:233, where it states: "And upon the father is their (i.e. the mother's) provision and their clothing according to what is acceptable. No person is charged with more than his capacity."
must be fulfilled in accordance with Sharī`ah law.
79
79 Made up of four primary sources: the Holy Qur'an, the Prophetic Traditions (the Sunnah), the consensus of juristic opinions (Ijma) and reasoning by analogy (Qiyas). See Mzee 2016 Journal of Law, Policy and Globalization 55 for further reading on this concept. 80 Bani and Pate 2015 International Affairs and Global Strategy 104. 81 Ati Family Structure in Islam 269. 82 Bani and Pate 2015 International Affairs and Global Strategy 104. 83 Ferdousi 2019 Jurnal Syariah 553. 84 Ferdousi 2019 Jurnal Syariah 553. 85 Ferdousi 2019 Jurnal Syariah 547. 86 Jansen Extended Family Relationships 185. 87 See Ali Holy Qur'an 2:229, wherein it states: "And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep (within) the limits of Allah." 88 The term "waiting period" or iddat refers to the period of waiting for the woman before remarrying after her divorce or the death of her husband. However, the waiting period or iddat differs from case to case. In the case of a divorced woman who menstruates, the waiting period is three menstrual cycles. The waiting period for a woman who has passed the age of menstruation is three lunar months, and in the case of a woman whose husband is deceased the period is four months and ten days respectively. See Mohammad and Lehmann 2011 Journal of Law and Practice for further reading on this aspect. 89 Booley 2014 LDD 45. 90 Abduroaf Deceased Estates 38.
Essentially, then, even while the final conclusion indicates that a woman's overall inheritance share is arithmetically different, this does not imply that they are ultimately unequal.
91
91 Ati Family Structure in Islam 268.
is not true. This may suggest that the male can, therefore, more likely be said to be "liable" than a "beneficiary".
92
92 Ati Family Structure in Islam 269.
6.2 The rationale for the exclusion of a child conceived out of wedlock from the compulsory succession equation
There are various reasons why single-parent families arise, such as parental death, divorce or desertion.
93
93 Prabhakar and Kotwal 2009 Journal of Social Sciences 197. 94 Prabhakar and Kotwal 2009 Journal of Social Sciences 197. 95 Prabhakar and Kotwal 2009 Journal of Social Sciences 197. 96 Garfinkel and McLanahan 1987 Wilson Quarterly 43. 97 Dube 2021 https://health-e.org.za/2021/11/16/covid-19-pandemic-single-mothers-bear-the-biggest-brunt/. 98 Prabhakar and Kotwal 2009 Journal of Social Sciences 199. 99 Anania 2022 https://www.investopedia.com/articles/personal-finance/030716/ managing-money-couple.asp. 100 See Ali Holy Qur'an 4:34, wherein it states: "Men are the caretakers of women, as men have been provisioned by Allah over women and tasked with supporting them financially." 101 Bani and Pate 2015 International Affairs and Global Strategy 104.
The Islamic ban against having sex before marriage is made abundantly clear in the Holy Qur'an.
102
102 See Ali Holy Qur'an 17:32, where it states: "Do not go near adultery, surely it is an indecency, and an evil way [of fulfilling the sexual urge]." 103 See Green 1989 Ohio NU L Rev 545, where fornication is defined as "consenting intercourse between unmarried adults". 104 See Green 1989 Ohio NU L Rev 545, where adultery is defined as "where an adult is married to another whilst having intercourse with a person who is not your spouse".
term Zina in Islam.
105
105 Rizvi 2022 https://www.al-islam.org/marriage-and-morals-islam-sayyid-muhammad-rizvi/chapter-three-islamic-sexual-morality-2-its. 106 See Ali Holy Qur'an 23:5-6, where it states: "The believers are ... those who protect their sexual organs except from their spouses... Therefore, whosoever seeks more beyond that [in sexual gratification], then they are the transgressors."
Another disadvantage of engaging in sexual activities outside the confines of a marriage can include the transmission of sexually transmitted diseases. It is a known truth that those who engage in several sexual partners at will are at a higher risk of acquiring sexually transmitted diseases.
107
107 Finer, Darroch and Singh 1999 Family Planning Perspectives 228. 108 Prabhakar and Kotwal 2009 Journal of Social Sciences 198. 109 Sungay Constitutional Legitimacy 70.
6.3 The rationale for the exclusion of an adopted child from the compulsory succession equation
Adopted children living in Muslim households are entitled to receive certain privileges and duties from their adoptive families, just as in any other South African household.
110
110 Anwar and Kasdi 2019 Al-Ahkam 148. 111 Anwar and Kasdi 2019 Al-Ahkam 148. 112 The Holy Prophet Muhammad (pbuh) also adopted an individual by the name of Zayd bin Haritha, a freeman from the South of Syria, who was kidnapped by Arab tribes and sold off in the slave market in Mecca around AD 600. See Yassari 2015 Am J Comp L for further reading on this part of history. 113 An individual that you are unable to marry. This individual can be your lawfully recognised security. Examples include a brother being a Mahram to a sister and a
son being a Mahram to a mother. See Hadad 2019 Economica for further reading on what a Mahram entails.
prevents an adopted child from being a Mahram to the adoptive parents.
114
114 Anwar and Kasdi 2019 Al-Ahkam 147. 115 There is very little information and research done by academics on the uncovering of this rationale as found in the Islamic law of compulsory succession. The author of this article notes this as a limitation in our current day and age and sees this topic as a potential future topic of interest wherein more research can be conducted.
7 Conclusion and recommendations
Since the revelation of the Holy Qur'ān and its accompanying injunctions, many individuals' rights have been uplifted. In the end, these advancements helped lead to the complete abandonment of numerous customs that were practised in ancient Arabia and other parts of the world.
116
116 These examples included the granting of Muslim women the right to inheritance in addition to the granting of other individuals' rights through blood and marriage ties as opposed to the little to no regulation that existed in many cultures and religions. See Esposito Women in Muslim Family Law 15 for further reading on this.
The author of this article thus advises all Muslims to familiarise themselves with the principles of Islamic inheritance law. This entails being aware of the general workings of the Islamic law of succession as well as the rationales behind its exclusions. In order to achieve a more equitable distribution, it is advantageous − as demonstrated by the scenario of person X − to further educate oneself on the legal exceptions to these exclusionary rules. This will consequently prevent misconceptions growing about the religion of Islam, and further draw individuals to the reality and beauty of the religion in itself.
This article has demonstrated that, despite the existence of exclusionary rules such as the reduction of the female's share, the disqualification of a child born outside of marriage from inheriting as a beneficiary of an intestate estate or the exclusion of an adopted child from an intestate inheritance, they are not absolute. This article has further proceeded to show how a Muslim testator can conduct estate planning to ensure all his offspring are not disqualified from inheriting from his estate. These solutions include
granting testate bequests in favour of the excluded beneficiaries and investigating whether the disqualification or exclusion fully applies to the scenario. These avenues, as shown, not only allow the descendant the right to inherit but have the potential to enable them to inherit on a better footing than children born in normal circumstances. Verily, God knows what we know not.
117
117 Ali Holy Qur'an 16:74.
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List of Abbreviations
Am J Comp L |
American Journal of Comparative Law |
---|---|
DOJ&CD |
Department of Justice and Constitutional Development |
LDD |
Law, Democracy and Development |
MJC |
Muslim Judicial Council of South Africa |
Ohio NU L Rev |
Ohio Northern University Law Review |