Compiled by:- Majlisul Ulema, South Africa

THE WASI (Executor)

The executor or administrator whom the mayyit had appointed to attend to his estate is called the Wasi.

A person becomes a wasi by his acceptance or by acting in a way implying acceptance. Once he has accepted, the post becomes incumbent on him.

As long as the appointer of the wasi, namely, the Musi is alive, the Wasi is entitled to resign.

If two wasis (Executors) were appointed, any one of them cannot act unilaterally. Besides the funeral arrangements and the necessary expenses for the mayyit's dependents, all other acts and decisions regarding the mayyit's estate must be affected jointly by the two appointed executors.

It is not permissible to appoint a kafir or a fasiq to be one's wasi.

FACTORS WHICH DEPRIVE HEIRS OF INHERITANCE

There are four factors which deprive a person from inheriting. These are:

1. Killing the Murith

Difference of religion

Slavery

Difference of country of domicile.

KILLING THE MURITH

When a person kills his Murith (the one in whose estate one inherits), the heir is deprived of inheriting in his estate. Whether he had killed by design or by mistake, he is deprived of his inheritance.

An insane person and a minor will not be deprived of their inheritance if they had killed their Murith.

If the heir killed the Murith in self defense, e.g. the Murith attacked and the heir defended himself, then he will not be deprived of his inheritance.

If the heir is the executioner in an Islamic state and is ordered to execute his Murith who has been justly sentenced to death by a properly constituted Islamic court, then this executioner will not be deprived of his inheritance for having killed his Murith. Islamic state refers to a state which is governed according to the Shariah. Since there are no longer any such Islamic States, the rule explained here will not apply to state executioners. In the present times if a state executioner executes his Murith, he will be deprived of inheritance in the estate of his. Murith.

If a man kills his wife whom he caught in the act of committing zina (adultery), he will not be deprived from inheriting in her estate provided that the crime of the woman is evidenced by witnesses.

Although it is not permissible for a man to kill his wife whom he apprehends in the act of zina, nevertheless, the extreme provocation and infidelity of the wife mitigate in his favour, hence the Shariah does not deprive him of his inheritance.

DIFFERENCE OF RELIGION

There are no ties of inheritance between Muslims and non-Muslims.

If a Muslim has no Muslim survivors and he has not made a Wasiyyat for the disposal of his estate, all his assets will go to the Baitul Mai (Islamic State Treasury). Where there is no such Baitul Mai, the Muslim community should distribute his wealth to Islamic Charity.

That portion of a murtad's estate which he had acquired while he was a Muslim, will be inherited by his heirs and the portion which he acquired during his state of irtidad will be handed to the Baitul Mai.

A person who renounces Islam after having been a Muslim is termed murtad. His condition of Kufr after having reneged from Islam is called irtidad.

If a female becomes a renegade(murtaddahj, her entire estate will be inherited by her Muslim heirs whether she had acquired the assets/wealth during her state of Islam or state of irtidad.

The estates of the murtad and murtaddah will be distributed as mentioned above when any of the following occurs:

a. He/she links up with the Kuffar.

b. He/she dies or is put to death.

SLAVERY

Since a slave cannot own anything, he can neither be a murith nor a warith (heir).

DIFFERENCE OF COUNTRIES

This factor applies to only non-Muslims. We shall, therefore, not present any discussion on this issue. As far as Muslims are concerned, domicile in different countries does not deprive them of inheritance. Even if the Murith lives and dies in the east and the heirs are in the west, they will inherit in his/her estate.

SIMULTANEOUS DEATHS

When people (in this context close relatives) die in a common tragedy, e.g. plane-crash, ship-wreck, fire, etc; and there is no way of establishing who had died first, it will be decreed that the deaths were simultaneous. The one will not inherit in the estate of the other in view of the moments of their respective deaths being unknown. Their estates will be inherited by those heirs who are alive.

Example:

Zaid (Father) and Abdullah (Son) were both killed in an accident. It could not be ascertained who had died first, hence it will be said that both had died at the same time. The question of inheritance between the father and son thus does not arise.

On the other hand if it was established that the father, Zaid had died even a minute before his son, Abdullah, then the latter inherits in his father's estate. Since he too has died, his share of inheritance will be transferred to his (Abdullah's) heirs.

NUBUWWAT

Nubuwwat also deprives heirs of inheritance. Neither could a Nabi inherit nor could his heirs inherit in his estate.

(This is mentioned only by way of interest. Since Nubuwwat has ended, this factor of deprivation no longer exists in practice).

FACTORS WHICH DO NOT DEPRIVE HEIRS OF THEIR INHERITANCE MARRIAGE OF A WIDOW

In some places a widow is deprived of her inheritance in her husband's estate if she marries again. This is a callous misdeed which is" an exhibition of flagrant displeasure for Allah's decree. A widow is free to marry and the family has absolutely no right of preventing her from marriage or of depriving her of her inheritance in her husband's estate.

DISOBEDIENCE

Disobedience of children does not disqualify them from their inheritance. If one son was disobedient to his father his entire life while another son was obedient and serving his parents, both will inherit equally in their father's estate. The disobedient son cannot be deprived of his inheritance on account of his disobedience,

If there is a valid reason for the desire to deprive an heir, it will be proper to distribute the assets of one's estate during one's lifetime, leaving nothing for distribution after one's death. However, when distributing the assets during one's lifetime, such distribution will be by way of gift, not by way of inheritance, hence it will be necessary to make equal gifts to both sons and daughters. It is not permissible to discriminate between sons and daughters when making gifts.

When distributing one's assets during one's lifetime, the intention should not be to deprive any heirs for no valid reason. A valid reason would be the gross disobedience of a child who has taken to evil ways, dissociating himself/herself from his/her parents.

A person who deprives any heir for no valid Shar'i reason, will find himself deprived of Jannat according to the Hadith of Rasulullah (Sallallahu Alaihi Wasallam).

It should be well understood that an act of depriving any heir, even a grossly disobedient son or a flagrant transgressor, cannot be affected after one's death. Thus, a will containing any clauses of deprivation is not valid in the Shariah.

INFANCY

Infancy does not deprive the child of its inheritance. The infant will inherit in exactly the same way as adults. Even the unborn child in its mother’s womb will inherit. This will be explained later, Insha Allah.

HUJUB (DEPRIVATION)

Heirs are sometimes deprived of inheritance, not because of any defect or impediment in themselves, but on account of the presence of others who may be heirs inheriting or non-inheriting heirs. This deprivation as the result of the presence of others is termed Hujub.

There are two types of Hujub - Hujub Nuqsan and Hujub Hirman.

Hujub Nuqsan

In this type, the heirs are partially deprived. On account of the presence of certain relatives, the shares of heirs decrease. The following are the heirs who suffer Hujub Nuqsan.

Mother:

The mother's share is reduced from one third to one sixth if the mayyit is survived by also sons, daughters, or grandchildren. Grandchildren in this context refer to son's children.

The mother's share is likewise reduced to one sixth if there happens to be more than one brother or sister of the mayyit, even if in certain circumstances the brothers and sisters do not inherit.

The mother's share is also reduced if the mayyit is survived by his father and wife or by her father and husband. In this case there are no children. Instead of obtaining one third of the estate, she will receive one third of the balance remaining after subtracting the husband's/wife's share. This will be further explained, Insha'Allah.

Husband:

In the presence of the wife's children or grandchildren (i.e. son's children), the husband's share decreases from one half to one quarter.

Wife:

In the presence of the husband's children or grandchildren (i.e. son's children), the wife's share decreases from one quarter to one eighth.

Grand-daughter (Son's Daughter):

If the mayyit has one daughter and one grand-daughter, the latter's share decreases from one half to one sixth because of the presence of the daughter.

Al-lati Sister: In the presence of a true sister, an Al-lati sister's share decreases from one half to one sixth.

TYPES OF RELATIONSHIP BETWEEN BROTHERS AND SISTERS

There are three types of brothers and sisters. These are known as Haqeeqi, Al-lati and Akhyafi. Haqeeqi are true or full brothers and sisters, i.e. children of the same mother and father. Al-lati are children of one father and different mothers. Akhyafi are children of one mother and different fathers. Such brothers and sisters are termed Akhyafi.

AL-LATI SISTER:

She is deprived if the mayyit leaves two Haqeeqi sisters or one Haqeeqi brother on condition she is not an Asbah (this will be explained in the section dealing with Al-lati sisters, Insha'AIlah).

PATERNAL GRANDFATHER:

He is deprived in the presence of the mayyit's father.

BROTHER'S SON:

They are deprived in the presence of the mayyit's father or brother or son or grandson (son's son).

PATERNAL UNCLE:

He is deprived in the presence of the mayyit's father or grandfather or great grandfather or son or grandson or brother or brother's son.