MUAMALAT (RELATIONSHIPS) - IRE FORM 3 Notes

• Mirath (Inheritance)
  • Meaning of Mirath.
  • Significance of the Law of Mirath
  • Essentials of Inheritance
  • Conditions for Mirath
  • Administration of the Estate of a Deceased Muslim
• Wasiya (Will)
  • Conditions for wasiyya
  • Significance of wasiya
  • Heirs and their Shares

Mirath (Inheritance)

Read [Q 4:11-12]

a) Meaning of Mirath.

• Mirath is from the root Arabic verb, ‘Waratha’ which means ‘to take or hold a possession or inherit’.
• Technically, it is a science which shows the eligible heirs (those to inherit) and their shares as as assigned in the Qur’an.
• In several circumstances, you might have witnessed situations where family members engage in fights, disputes and wrangles over the deceased tarka (estate).
• The wrangles and fights may be due to lack of proper guidance on the distribution of wealth after one dies.
• Islam has outlined the method of sharing out the deceased estate to the remaining members of the family.
• This is prescribed in the Qur’an.
• Allah (SWT) says,
  “It is prescribed, when death approaches any of you, if he leaves any goods that he make a bequest to parents and next of kin according to reasonable usage; this is due from the God fearing.” [Q 2:180]
• This tarka (estate) is distributed using the law of Mirath (inheritance).

b) Significance of the Law of Mirath

• Mirath is among the legal injunctions in the Qura’n that Allah (SWT) Has explained in details.
• This is to show how the law of inheritance is important to the society.
• The law of inheritance is significant because of the following:
  • It liberates the Muslim woman from suppression by allowing her to inherit from her husband as well as her relatives.
  • It shows that resources owned by a Muslim are a trust from Allah and should be re entrusted to other Muslims in a decent manner at the end of one’s life.
  • It promotes fairness and equity in distribution of resources after the death of a Muslim.
  • It eradicates wrangles that may occur after the death of a Muslim.
  • The law safeguards the property from greedy relatives and murderers who may deprive the rightful heir their shares.
  • It creates peace and unity among Muslims when they are sure of how their estate shall be inherited peacefully.
  • It strengthens the economic abilty of those heirs left behind.
  • It shows respect to right to the ownership property since only the rightful heirs are entitled to inheritance.
  • It guides the arbitrators on how they can solve any problems that may occur in the course of inheriting the estate.

c) Essentials of Inheritance

• Inheritance cannot be conducted until there are three elements.
• Their absence makes inheritance null and void.
• These are as follows:
  • There must be a deceased person who is supposed to be inherited. The deceased must either be dead by fact or by law.
  • There must be heirs who are directly related to the deceased. Where there are no heirs, then the property can not be inherited.
  • There must be the estate. This refers to the property that belongs to the deceased and is lawful for inheritance.

d) Conditions for Mirath

• Islam lays down the specific conditions to be met before the heirs inherit the estate of the deceased.
• These conditions have to be met on the elements i.e. death, availability of heirs and the estate to be inherited.

i) Death of a person

• It should be proven that the owner of the estate to be inherited is dead.
• The property cannot be inherited while he is still alive.
• One shall be presumed dead in the event of the following:
  • Physical evidence of the death. For example death due to sickness or accident or any other natural cause and people prove beyond doubt that someone has died and the body is buried.
  • When the doctor proves that a person has died.
  • When people are informed by reliable sources like the authority that someone died at a distant place. It means that they did not see the body. An example is a person who left property, but went to another country, continent, or distant place where the relatives lose contact of such a person. If the relatives are later informed by reliable people that the person died and was buried, then the estate of such a person can be inherited.
  • Death can also be presumed on a person. When a ship sinks into deep sea, a plane falls into the ocean or people are buried deeply in a landslide, such people can be presumed to be dead after some days beyond which a normal person is not expected to be alive.

ii) Survival of the heirs

• The heirs to the deceased should be alive by the time of his death.
• These heirs should meet the following conditions.
  • They must be closely related to the deceased as stipulated in the Islamic Sharia.
  • The deceased must be a Muslim and the heirs must also be Muslims. An example is where there are two siblings but one is a Muslim while the other is not, then it becomes haram according to Islam to inherit each other.
  • A spouse can only inherit if they were legally married.
  • A child will only inherit from his parents if the two parents were married according to the Islamic Sharia on Nikah.
  • A person who kills either of the parents or any other family member from whom they are entitled to inherit will be not allowed to inherit any estate.

iii) Existence of the estate

• The estate includes all the property and the financial gains and debts of the deceased.
• The estate should be legally owned by the deceased.
• In a case where the deceased has left no estate because of his poverty or exhaustion of his estate through settlement of debts or was used to cover funeral expenses, then there shall be no inheritance

Administration of the Estate of a Deceased Muslim

• Before distributing the estate of the deceased among heirs the following steps are to be followed:

a) Funeral Expenses:

• Islam teaches that if the deceased has any money, then the expenses for preparing for his burial should be paid from this money.
• These expenses must be reasonably and strictly conform to the Islamic teachings.
• They include; washing, shrouding of the body, transportation and the burial.

b) The settlement of debts.

• After the burial expenses are settled, it is now important that all the debts owed by the deceased are paid off.
• This includes debts that are not secured or specifically attached to the estate i.e. loans, money owed by people or any other unsettled debts.

c) Wasiya

• The third important thing to be done after settling funeral expenses and debts of the departed is honouring the wasiya (will) and legacies.
• However, both the will and the gifts shall not exceed one third of the estate of the deceased unless this is consented to by the heirs.
• The remaining property that is shared out by the heirs is called Tarika (the net property).
• This is distributed according to the specifications of the Qur’an as we shall learn later in this chapter.

Wasiya (Will)

• The term “wasiyya” comes from an Arabic word “Auswa”, which literally means to enjoin, order, direct or command.

a) Conditions for wasiyya

• In order for a will to be valid, there are certain conditions governing its execution.
• These conditions apply to the will, mu’swi, mu swalahu and al-Wa’swi (executor).
• Let us look at each of these conditions.

i) Wasiyyah (The will)

• It should not be more than a third of the total property.
• It should either have been pronounced orally or in writing.
• It must be written or pronounced by the owner of the property.
• It should come into operation after the death of the testator.
• It should be witnessed by two male reliable people.
• It should not exclude or curtail the rightful heirs from inheritance.
• It should be executed after all the debts and funeral expenses are settled.
• The content of the will must have halal intentions.
• There must be the estate or property that has been willed out at the time of writing the will.
• It should not show disparity or favour some heirs.
• The intention of the testator must be clear.
• It should state the exact property to be given to the person.

ii) The Mu’swi (the person writing the will)

• He or she must be of sound mind.
• He or she must be an adult (one who has reached puberty).
• He or she should write it under his own free will i.e should not be under compulsion.
• He or she must have the legal capacity to dispose of whatever he bequeaths in his will.
• He or she has the right to revoke his previous will by a subsequent one.
• He or she must own the property which has been willed out.
• He should not give out more than one third of the total property unless the heirs agree or there are no legal heirs at all or the spouse is the only surviving legal heir.

iii) The Mu-swalahu (the person in whose favour the will is written)

• The mu’salahu must be alive at the time when the will is executed.
• Those included in the will should not be rightful heirs.
• He or she can accept or reject the bequest only after the death of the testator.

iv) Al-Wa’swi (the executor)

• He should be trustworthy, truthful and just.
• He should carry out the wishes of the testator according to the Islamic Sharia.
• The executor can either be male or female.
• He should consider the interest of the children of the deceased and that of the estate.
• He or she can either be a Muslim or a non Muslim. If he is a non Muslim, he must follow the Islamic Sharia.
• The authority of the executor should be specified in the will.
• If the executors are more than one, the testator must state if each executor can act independently of the other(s).

b) Significance of wasiya

• It gives the deceased an opportunity to help the poor, the needy and other vulnerable people in the society.
• It eradicates favouritism among heirs.
•  It inculcates discipline among the heirs while handling the property of the deceased.
• It prevents quarrels, wrangles and fights among family members.
• It accords the rights of business partners, workers and third parties.
• It encourages individual members in the society to be dutiful, responsible and exercise love and care since whoever does contrary to this may be exempted from the will.
• Those bequeathed get a chance to better their lives from the property left for them.
• A will creates a strong bond of relationship between the mu’swi (deceased) and the mu’swillahu. It can therefore be usedin the appointment of a guardian for the children.
• It cements love and friendship among the family members.
• Controls against fraud or misappropriation of the estate.

Heirs and their Shares

The following table shows how the heirs get their shares:

• The following are examples of two cases that guide as to understand the above table on the distribution of inheritance among heirs:
• Example of Case 1 and Case 4
• When Khalid died, he left an estate that was valued at Ksh. 90,000 (Ninety thousand). He was survived by his parents, his two sons, Ayub and Suleiman, and his two daughters, Fatma and Zahra. Calculate the shares each is entitled to inherit.
  From this example we can deduce the following information:
  1. The deceased is a son (Khalid)
  2. The heirs are both parents of Khalid.
  3. The condition is the children are alive. (Two daughters, Fatma and Zahra and two sons, Ayub and Suleiman.)
• SOLUTION:
  The parents are entitled to 1/6 each (i.e. father will get 1/6 and the mother will get 1/6) While the children are entitled the remaining share at a ratio of 2:1 (male to female).
  These shares are calculated as follows:
• Hamadi has died. He has left a tarka worth 120,000/= and is succeeded by a wife, his father and children; Maryan and Mohammad.
  Using the distribution table of inheritance, discuss in groups of five how the Tarka of the deceased shall be shared.