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Background reading material for Year 3 Semester 2 Med PPSD session on Monday 23rd March 2009 by Professor Omar Hasan Kasule Sr.
THE WILL, al wasiyyat
The will is a testament by a living person that can be executed before or after death. An executor is appointed for the bequest. If the father is living he is automatically the executor. The will was obligatory at the beginning. This obligation ceased with the revelation of verses spelling out the share of each inheritor. The will is now used for property that the deceased wishes to leave to non-inheritors or charitable bodies. Conditions may be attached to the execution of the will. The usual rules of evidence are applied to test the validity of a will. The physician, often the last person to be in contact with the deceased, may be called upon to witness the will. The physician may have to advice the deceased about the conditions and limitations of the will. Some wills in terminal illness may not be valid because of doubts about the mental and legal competence of the patient. The maximum limit of the will is one third of the total estate unless all the inheritors agree to a higher proportion. The inheritors cannot be beneficiaries of the bequest. A wide range of beneficiaries is allowed: Muslims, Yahuud, Nasaara, apostates, killer of the deceased, a heir (if all heirs agree to this), the unborn child, charitable organizations, and waqf bodies. The will can be cancelled at any moment before death. It is also considered automatically canceled if the beneficiary dies before the death of the bequestor.
CONDITIONS of INHERITANCE, shuruut al irth
Inheritance can not take place until the death of the deceased is certified beyond any doubt. The inheritor must survive the inheritee even if for a short time. A new-born born alive has full rights of inheritance. The relationship between the inheritee and the inheritor must be established beyond doubt. There are only two types of relationship: based on blood relationship or based on marriage. Illegitimacy prevents inheritance between a father and a son. ?It is also a bar to inheritance between uterine brothers. The inheritee and the inheritor must be of the same religion. A Muslim can not inherit from a non-Muslim and vice versa. The gender affects the share of inheritance. The Law has prescribed complicated procedures for dealing with cases of indeterminate gender. A prisoner of war or a lost person does not lose their rights of inheritance. The problem arises when it can not be established whether they were living at the time of the death of the inheritee. The Law has also prescribed measures to deal with this type of uncertainty.
THE INHERITORS, al warathat
Inheritors are descendants (son, daughter, son of son, daughter of son etc), predecessors (father and mother), brothers and sisters (full brother, paternal half brother, maternal half brother, paternal half sister, and maternal half sister), spouses (wife and husband).
DENIAL OF INHERITANCE, mani ‘u al irth
A potential inheritor who in the official discharge of duties is a factor in the death of the inheritee is prevented from inheritance. Intentional homicide prevents a person from inheritance. Accidental homicide with intention to hurt prevents from inheritance. Accidental homicide with no intention to hurt prevents from inheritance. Any person who is a contributory factor to death can not inherit. For example a prison officer who carries out a lawful judicial execution can not inherit. The strict rulings above are a deterrent that removes any incentive to kill a relative in order to inherit his or her property. In cases of unintentional homicide, an innocent inheritor is denied the right of inheritance under the general principle of the law that public interest supersedes individual interest.
ESTATE DIVISION
One half is given to 2 categories of inheritors: (a) The husband of a deceased who has no children takes one half of the estate (b) a sole daughter or sister. One quarter is given to 2 inheritors: a husband of a deceased who has children and the wife of a deceased who has no children. One eighth is given to only 1 inheritor: a wife of a deceased who has no children. One third is given to the mother. Two thirds is given to 2 or more daughters or sisters. One sixth is given to sister, brother, or mother. There are three types of universal heirs: ‘aasib bi nafsihi, assib bi ghayrihi, and ‘aasib ma ghayrihi. Owners of shares are given their due and whatever remains is shared among the universal heirs with males taking twice what females take. There are two types of hajb: hajb nuqsaan and hajb hirmaan. In hajb nuqsaan an inheritor’s share is lessened by presence of another inheritor who is a preventor for example if a deceased wife has no children her husband inherits half of her estate; if she has children the husband inherits only one quarter of the estate. In hajb hirman the presence of one inheritor denies another inheritor any right to inheritance.