LEVEL I Inheritance Logic:

1.
SHARE OF HUSBAND
IF NO ENTITLED DESCENDANTS EXIST (ie; Children/Grandchildren)
THEN
HUSBAND = 1/2
IF ENTITLED DESCENDANTS EXIST (ie; Children/Grandchildren)
THEN
HUSBAND = 1/4
Note: ENTITLED DESCENDANTS = Sons, Daughters, Sons Son, & Sons
Daughter. Daughters children are NOT treated as entitled descendants.
2.
SHARE OF WIFE
IF NO ENTITLED DESCENDANTS EXIST (ie; Children/Grandchildren)
THEN
WIFE = 1/4
IF ENTITLED DESCENDANTS EXIST (ie; Children/Grandchildren)
THEN
WIFE = 1/8
Note: ENTITLED DESCENDANTS = Sons, Daughters, Sons Son, & Sons
Daughter. Daughters children are NOT treated as entitled descendants.
3.
SHARE OF DAUGHTER(s)
IF ONLY ONE DAUGHTER (and NO Sons)
THEN
DAUGHTER = 1/2
IF TWO OR MORE DAUGHTERS ONLY (and NO Sons)
THEN
DAUGHTERS = 2/3
(to be shared equally between all of them)
IF both SONs & DAUGHTERS EXIST,
THEN
SON:DAUGHTER = 2:1
4.
SHARE OF FATHER
IF ENTITLED DESCENDANTS EXIST
(Sons, Daughters, Sons Sons, Sons Daughters)
THEN
FATHER = 1/6
IF NO MALE DESCENDANTS EXIST (Sons, Sons Sons)
THEN
FATHER = 1/6 plus Residue
(residue = remainder after all legal shares are distributed)
IF NO ENTITLED DESCENDANTS EXIST
THEN
FATHER = Residue
5.
SHARE OF MOTHER
IF ENTITLED DESCENDANTS or BROTHERS/SISTERS EXIST
THEN
MOTHER = 1/6
IF NO ENTITLED DESCENDANTS EXIST
THEN
IF NO BROTHERS/SISTERS, NO FATHER, NO SPOUSE EXIST
THEN

MOTHER = 1/3
IF BROTHERS/SISTERS, FATHER, or SPOUSE EXIST
THEN
MOTHER = 1/3 of Residue
6.
UTERINE BROTHER/SISTER ( from same Mother, different father)
IF ONE UTERINE BROTHER/SISTER EXIST
THEN
IF NO ENTITLED DESCENDANTS and NO MALE ASCENDANTS
(Father/Fathers Father etc)
THEN
UTERINE BROTHER = 1/6 or UTERINE SISTER = 1/6
IF TWO OR MORE UTERINE BROTHERS/SISTERS EXIST
THEN
IF NO ENTITLED DESCENDANTS .AND.NO MALE ASCENDANTS
(Father/Fathers Father etc.)
THEN
ALL UTERINE BROTHERS & SISTERS = 1/3
Note: If there are UTERINE Brothers/Sisters IN ADDITION to FULL
Brothers/Sisters (same father/mother), then they share in the residue.
7.
SHARE OF SONS DAUGHTER
IF ONE SONS DAUGHTER EXIST
THEN
IF NO DAUGHTERS EXIST
THEN
IF NO SONS SON EXIST
THEN
SONS DAUGHTER = 1/2
IF SONS SON EXIST
THEN
SONS DAUGHTER = HALF SHARE OF SONS SON
(ie Sons SON share: Sons DAUGHTER share = 2:1)
IF TWO OR MORE SONS DAUGHTERS EXIST
THEN
IF NO DAUGHTERS EXIST
THEN
IF NO SONS SONs EXIST
THEN
SONS DAUGHTERS = 2/3 (equally between them)
IF SONs SON EXISTS
THEN
SONS DAUGHTER = HALF SHARE OF SONS SON
(ie Sons SON share: Sons DAUGHTER share = 2:1)
8.
SHARE OF FULL BROTHER/SISTER
(Full Brother/Sisters are brothers/sisters from the same FATHER & MOTHER)
Brothers & Sisters inherit ONLY when there are NO Descendants (Son/Sons,
Sons son
etc.) and NO Ascendants (Father/Grandfather etc.)
The arabic word AL-KHALALA is used in the Quran, Chapter 4 Al-Nisa,
Verses 12 & 176,
which is translated by almost all the translators of
the Quran to mean Ascendants &
Descendants thus giving rise to the
interpretation that they include Parents and Children. However, many
scholars have preferred to classify the word as meaning Father or Son
thus
excluding the female components of both Ascendants and
Descendants (mother & daughters).

IF NO FULL BROTHER and NO FEMALE ENTITLED DESCENDANT EXIST

(daughter, Sons daughter etc.)
THEN
IF deceased was MALE,
THEN
FULL SISTER = 1/2 (if only ONE)
IF NO FULL SISTER and NO FEMALE ENTITLED DESCENDANT EXIST
THEN
IF deceased was FEMALE,
THEN
FULL BROTHER = 1 (if only ONE)
IF TWO OR MORE BROTHERS & SISTERS
THEN
FULL SISTERs = 2/3 (shared equally between them)
FULL BROTHERs & SISTERs (combination) = 2:1
IF NO FULL BROTHER EXIST but FEMALE ENTITLED DESCENDANT EXIST
(daughter, Sons daughter etc.)
THEN
FULL SISTER = 1/6 (if only one)
IF NO FULL SISTER EXIST but FEMALE ENTITLED DESCENDANT EXIST
THEN
FULL BROTHER = 1/6 (if only one)
IF FEMALE ENTITLED DESCENDANT EXIST
THEN
FULL SISTERS & BROTHERS = 1/3 (share equally)
9.
CONSANGUINE SISTER (Sister from same Father but different
Mother)
Consanguine Sisters inherit ONLY when there are NO SONs or Sons SON(s)
AND NO FATHER AND NO FULL BROTHER.
IF ONLY ONE FULL SISTER AND NO CONSANGUINE BROTHER
THEN
CONSANGUINE SISTER (if only one) = 1/2
CONSANGUINE SISTER(s) (if two or more) = 2/3
IF ONE FULL SISTER AND CONSANGUINE BROTHER(s)
THEN
(CONSANGUINE) BROTHER:SISTER = 2:1
10.
TRUE GRANDMOTHER
True Grandmother is defined as the one whose line of connection with the
deceased is NOT interrupted by a MALE between two FEMALES. They are
entitled ONLY if the FATHER or MOTHER do not exist.
Eg;
Mothers MOTHER, Fathers MOTHER
Fathers Fathers MOTHER, Mothers Mothers MOTHER
TRUE GRANDMOTHER = 1/6
11.
TRUE GRANDFATHER
True Grandfather is the one whose line of connection with the deceased is
NOT interrupted by a FEMALE between two MALES. They are entitled ONLY
if the Father or Mother do not exist.
Eg;
Fathers FATHER
Fathers Fathers FATHER
Mothers FATHER
Mothers Fathers FATHER
TRUE GRANDFATHER = 1/6 IF MALE DESCENDANTS EXIST (Son, etc)
TRUE GRANDFATHER = 1/6 + Residue IF FEMALE descendants exist

TRUE GRANDFATHER = Residue IF NO Male/Female descendants exist

12.
UNCLES & AUNTS (Fathers/Mothers Brothers & Sisters)
Uncles and Aunts are ONLY entitled in the absence of GRANDPARENTS. This
means that they will receive shares ONLY if there are NO Parents AND
Grandparents because Grandparents do not inherit when the Parents are
living. They will also NOT inherit if the children (or childrens children) of
the deceased are living. Proportions here are also in the ratio of 2:1 for
Male:Female.
13.
NEPHEWS & NIECES (Children of Brothers/Sisters)
Nephews and Nieces are ONLY entitled in the absence of Brothers and
Sisters. This means that they take the shares of the Brothers/Sisters of the
deceased in their absence. Hence a Nepew/Niece will receive what his/her
parent (Brother/Siuster of the deceased) would have received if he/she was
alive. They will also NOT inherit if the children (or childrens children) of the
deceased are living. Proportions here are also 2:1 for Male:Female

1. WILL, WRITING BEFORE DEATH

Question:
I would like to know whether Muslim can write will to divide the properties
and cash before he pass away.
Answer:
Yes, it is strongly recommended to write a living will. It is not permissible
however to punish any of your legal heirs from their rightful share of the
will. Prophet Mohammad (pbuh) very clearly said: "No will may be made in
favor of an heir."
It is stressed that when writing a will one should consult an Islamic
scholar/legal expert to ensure that the will complies with Islamic law as well
as
the
law
of
the
country
of
residence.

When a Muslim dies there are four duties which need to be performed. These
are:
1.

Payment of funeral expenses

2.

Payment of his/her debts

3.

Execution his/her will

4.

Distribution of the remaining estate amongst the heirs according to

Sharia

The Islamic will is called al-wasiyya. A will is a transaction which comes into
operation after the testator's death. The will is executed after payment of
funeral expenses and any outstanding debts. The one who makes a will
(wasiyya) is called a testator (al-musi). The one on whose behalf a will is
made is generally referred to as a legatee (al-musa lahu). Technically
speaking the term "testatee" is perhaps a more accurate translation of almusa lahu.
The

importance

of

the

Islamic

will

The importance of the Islamic will (wasiyya) is clear from the following
two hadith:
"It is the duty of a Muslim who has anything to bequest not to let two nights
pass without writing a will about it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but if he acts unjustly when
he leaves his last testament, the wickedness of his deed will be sealed upon
him, and he will enter the Fire. If, (on the other hand), a man acts wickedly
for seventy years but is just in his last will and testament, the goodness of
his deed will be sealed upon him, and he will enter the Garden." (Ahmad and
Ibn
Majah)
The will gives the testator an opportunity to help someone (e.g. a relative
need such as an orphaned grandchild or a Christian widow) who is not
entitled to inherit from him. The will can be used to clarify the nature of joint
accounts, those living in commensality, appointment of guardian for one's
children and so on. In countries where the intestate succession law is
different from Islamic law it becomes absolutely necessary to write a will.
The

Will

(Al-wasiyya)

The Islamic will includes both bequests and legacies, instructions and
admonishments,
and
assignments
of
rights.
No specific wording is necessary for making a will. In Islamic law the will
(wasiyya) can be oral or written, and the intention of the testator must be
clear that the wasiyya is to be executed after his death. Any expression
which signifies the intention of the testator is sufficient for the purpose of
constituting a bequest.
However, after death, if there is wasiyyah, it cannot exceed the one-third. So,
the one-third should be given to whomever it is written for, and the other two
thirds should be distributed among the share holders according to each ones
share in the Quran.

There should be two witnesses to the declaration of the wasiyya. A

written wasiyya where there are no witnesses to an oral declaration is valid if
it written in the known handwriting/signature of the testator according to
Maliki
and
Hanbali fiqh.
The wasiyya is executed after payment of debts and funeral expenses. The
majority view is that debts to Allah (SWT) such as zakah, obligatory expiation
etc. should be paid whether mentioned in the will or not. However, there is
difference of opinion on this matter amongst the Muslim jurists.
The

Testator

(Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a
will. An adult for this purpose is someone who has reached puberty. Evidence
of puberty is menstruation in girls and night pollution (wet dreams) in boys.
In the absence of evidence, puberty is presumed at the completion of the
age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a
discerning
(tamyiz)
child
as
valid.
Under English Law you must be at least 18 years of age to make a valid will
(similarly in most of the United States of America) unless you are a military
personnel in which case you may make a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever he
bequests in his will. When making a will the testator must be of sane mind,
he must not be under any compulsion and he must understand the nature
and effect of his testamentary act. The testator must of course own whatever
he
bequests.
The testator has the right to revoke his will by a subsequent will, actually or
by
implication.
In traditional Sunni Islamic law the power of the testator is limited in two
ways:
1.

Firstly, he cannot bequest more than 1/3 of his net estate unless the
other heirs consent to the bequest or there are no legal heirs at all or
the only legal heir is the spouse who gets his/her legal share and the
residue
can
be
bequeathed.
Narrated Sa'd ibn Abi Waqqas (RA): "I was stricken by an ailment that led
me to the verge of death. The Prophet came to pay me a visit. I said, "O
Allah's Apostle! I have much property and no heir except my single
daughter. Shall I give two-thirds of my property in charity?" He said,
"No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said,
"You may do so, though one-third is also too much, for it is better for you
to leave your offspring wealthy than to leave them poor, asking others
for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu
Dawud and Ibn Majah.)

2.

Secondly, the testator cannot make a bequest in favour of a legal heir

under traditional Sunni Muslim law. However, some Islamic countries do
allow a bequest in favour of a legal heir providing the bequest does not
exceed
the
bequeathable
one-third.
Legal heir in this context is one who is a legal heir at the time of death of

the

testator.

Narrated Abu Hurayrah (RA): Allah's Prophet (SAWS) said, "Allah has
appointed for everyone who has a right what is due to him, and no
bequest must be made to an heir. (Abu Dawud). Similar hadith narrated
by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.
The

Legatee

(Al-musa

lahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence

at the time of death of the testator except in the case of a general and
continuing
legatee
such
as
the
poor,
orphans
etc.
The legatee must be capable of owning the bequest. Any bequest made in
favour of any legal heir already entitled to a share is invalid under traditional
Sunni Muslim law unless consented to by other legal heirs. An
acknowledgement of debt in favour of a legal heir is valid.
Acceptance or rejection of a bequest by the legatee is only relevant after the
death of the testator and not before. Generally speaking once a legatee has
accepted or rejected a bequest he cannot change his mind subsequently.
If the legatee dies without accepting or rejecting the bequest, the bequest
becomes part of the legatee's estate according to the Hanafi fiqh because
non-rejection is regarded as acceptance. According to the other three main
Sunni madhahib, the right to accept or reject the bequest passes onto the
heirs
of
the
legatee.
There is difference of opinion as to the time at which ownership of a bequest
is transferred from the testator (or his heirs) to the legatee. According to the
Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the
testator, according to the Maliki and Hanbali fiqh the transfer of ownership is
at
the
time
of
accepting
the
bequest.
All the Sunni madhahib agree that if the legatee dies before the testator, the
bequest is invalid since a bequest can only be accepted after the death of
the
testator.
If there is uncertainty as to whether or not the legatee survived the testator,
such as a missing legatee, the bequest is invalid because the legatee must
be alive at the time of death of the testator for the will to be valid.
If the testator and legatee die together, such as in an air crash, and it is not
certain who died first, the bequest is invalid according to the Hanafi, Maliki
and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon
the legatee's heirs who may accept or reject it.
Executor

of

the

will

(Al-wasi

Al-mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by
the testator. The executor has to carry out the wishes of the testator
according to Islamic law, to watch the interests of the children and of the
estate. The authority of the executor should be specified. Hanafi and
Maliki fiqh state that the executor should be trustworthy and truthful; the
Shafii fiqh state that the executor must be just. The Hanafi fiqh considers the
appointment of a non-Muslim executor to be valid. The testator may appoint

more than one executor, male or female. The testator should state if each
executor
can
act
independently
of
the
other
executor(s).
If one starts acting as an executor, one will be regarded as having accepted
the appointment, both in Islamic and in English law.
2. INHERITANCE OF MALES & FEMALES
Question:
Under Islamic law, how is inheritance distributed and why is a womans
share of the inherited wealth only half that of a man?
Answer:
1. Inheritance in the Qur'an
The Glorious Quran contains specific and detailed guidance regarding the
division of the inherited wealth, among the rightful beneficiaries. The
Quranic verses that contain guidance regarding inheritance are:
* Surah Baqarah, chapter 2 verse 180
* Surah Baqarah, chapter 2 verse 240
* Surah Nisa, chapter 4 verse 7-9
* Surah Nisa, chapter 4 verse 19
* Surah Nisa, chapter 4 verse 33 and
* Surah Maidah, chapter 5 verse 106-108
2. Specific share of inheritance for the relatives
There are three verses in the Quran that broadly describe the share of
close relatives i.e. Surah Nisah chapter 4 verses 11, 12 and 176. The
translation of these verses are as follows:
Allah (thus) directs you as regards your childrens inheritance): to the
male, a portion equal to that of two females, if only daughters, two or more,
their share is two-thirds of the inheritance; If only one, her share is a half.
For parents, a sixth share of the inheritance to each, if the deceased left
children; If no children, and the parents are the (only) heirs, the mother has
a third; if the deceased left brothers (or sisters) the mother has a sixth.
(The distribution in all cases is) after the payment of legacies and debts. Ye
know not whether your parents or your children are nearest to you in
benefit. These are settled portions ordained by Allah; and Allah is AllKnowing, All-Wise. [An-Nisa 4:11]
In what your wives leave, your share is half. If they leave no child; but if
they leave a child, ye get a fourth; after payment of legacies and debts. In
what ye leave, their share is a fourth, if ye leave no child; but if ye leave a
child, they get an eight; after payment of legacies and debts. If the man or
woman whose inheritance is in question, has left neither ascendants nor
descendants, but has left a brother or a sister, each one of the two gets a

sixth; but if more than two, they share in a third; after payment of legacies
and debts; so that no loss is caused (to anyone). Thus it is ordained by
Allah; and Allah is All-Knowing Most Forbearing [An-Nisa 4:12]
They ask thee for a legal decision. Say: Allah directs (them) about those
who leave no descendants or ascendants as heirs. If it is a man that dies,
leaving a sister but no child, she shall have half the inheritance. If (such a
deceased was) a woman who left no child, Her brother takes her
inheritance. If there are two sisters, they shall have two thirds of the
inheritance (between them). If there are brothers and sisters, (they share),
the male having twice the share of the female. Thus doth Allah (swt) makes
clear to you (His knowledge of all things). [An-Nisa 4:176]
3. Female some times inherits same or more than male counter part
In most of the cases, a woman inherits half of what her male counterpart
inherits. However, this is not always the case. In case the deceased has left
no ascendant or descendent but has left the uterine brother and sister,
each of the two inherit one sixth.
If the deceased has left children, both the parents that is mother and father
get an equal share and inherit one sixth each. In certain cases, a woman
can also inherit a share that is double that of the male. If the deceased is a
woman who has left no children, brothers or sisters, and is survived only by
her husband, mother and father, the husband inherits half the property
while the mother inherits one third and the father the remaining one sixth.
In this particular case, the mother inherits a share that is double that of the
father.
4. Female usually inherits half the share of that of the male counter part
It is true that as a general rule, in most cases, the female inherits a share
that is half that of the male. For instance in the following cases:
1. Daughter inherits half of what the son inherits,
2. Wife inherits 1/8th and husband 1/4th if the deceased has no children.
3. Wife inherits 1/4th and husband 1/2 if the deceased has children.
4. If the deceased has no ascendant or descendent, the sister inherits a
share that is half that of the brother.
5. Male inherits double than the female because he financially supports the
family
In Islam a woman has no financial obligation and the economical
responsibility lies on the shoulders of the man. Before a woman is married it
is the duty of the father or brother to look after the lodging, boarding,
clothing and other financial requirements of the woman. After she is
married it is the duty of the husband or the son. Islam holds the man
financially responsible for fulfilling the needs of his family. In order to do be
able to fulfill the responsibility the men get double the share of the
inheritance. For example, if a man dies leaving about Rs. One Hundred and
Fifty Thousand, for the children (i.e one son and one daughter) the son
inherits One Hundred Thousand rupees and the daughter only Fifty

Thousand rupees. Out of the one hundred thousand which the son inherits,
as his duty towards his family, he may have to spend on them almost the
entire amount or say about eighty thousand and thus he has a small
percentage of inheritance, say about twenty thousand, left for himself.
On the other hand, the daughter, who inherits fifty thousand is not bound to
spend a single penny on anybody. She can keep the entire amount for
herself. Would you prefer inheriting one hundred thousand rupees and
spending eighty thousand from it, or inheriting fifty thousand rupees and
having the entire amount to yourself?
3. BEQUESTS AND INHERITANCE
Question :
Is there no such thing as a 'Will' in Islam? In Islam, can a person 'Will' his
assets or property as per his wishes, after his death, to people other than
those prescribed in the methods of the Shariah? Is this 'Will' legally valid in
India?
Answer :
A will is a legal document through which a person declares his/her wishes
and instructions on how his/her property and possessions should be
disposed of, distributed or given away after his/her death.
Allah (swt) says in the Glorious Quran:
Prescribed for you when death approaches (any) of you if he leaves wealth
(is that he should make) a bequest for the parents and near relatives
according to what is acceptable a duty upon the righteous. [Al-Baqarah
2:180]
Based on this verse from the Quran, it was earlier obligatory upon the
Muslims to make a will before death. But after the revelation of the verses
on inheritance (i.e. Surah Nisa 4:11-12), wherein Allah swt legislated fixed
shares of inheritance for deserving heirs, it is now not compulsory in Islam
for a person to write a will in his lifetime, because his estate is divided as
prescribed in Shariah among his living heirs.
So after the revelation of Surah Nisa 4:11-12, in an Islamic country where
Islamic Shariah is followed, it is not required to make a will.
In a non-Muslim country like India that has a separate Muslim Personal Law,
to make a will is optional. If a Muslim fears that the non-Muslim country
where Muslim Personal Law is followed has chances of deviating from the
Shari'ah in this respect, it is preferable to make a will as per Quranic
guidelines otherwise it is not required. Such a will is legally valid in India.
However, in a non-Muslim country like U.S.A. that does not have a separate
Muslim Personal Law, according to me it is compulsory for a Muslim to make
a will as per the guidelines laid by Allah (swt) in Surah Nisa 4:11-12, so that
it forces the law to execute Islamic Shari'ah as per your will.

It is the right of every citizen of a non-Muslim country, to will his property as

per his desire, because in the absence of will each country has its own
method of distributing the wealth.
It may be obligatory as well on a person to make a will, with regard to the
dues of others where there is no proof, lest they be lost or neglected,
because the Prophet (pbuh) said: It is not permissible for any Muslim who
has something to will to stay for two nights without having his last will and
testament written and kept ready with him." [Bukhari, al-Wasaayaa 2533].
One should also will if he fears some kind of corruption or dispute among
the heirs, especially in a non-Muslim country.
However, one does not have the right to make a will for the legal heirs as
per his own inclinations (or wishes), because Allah (swt) has defined the
share of each heir, and He has explained who inherits and who does not
inherit. So it is not permitted for any person to transgress the limits set by
Allah (swt).
And whoever disobeys Allah and His Messenger and transgresses His limits
He will put him into the fire to abide eternally therein, and he will have a
humiliating punishment [An-Nisa 4:14]
Allah (swt) has permitted us to make a will to whomsoever we wish other
than the legal inheritors for a maximum of one-third of our wealth. This will
help to donate for any mosque, welfare work, poor relatives etc.
The Prophet (pbuh) said: Allah was being generous to you when He allowed
you to give one-third of your wealth (in charity) when you die, to increase
your good deeds. [Ibn Maajah, Kitaab al-Wasaayaa, Hadith No. 2709]
Therefore one can will upto one-third of his wealth to be used for charitable
purposes or else one can also give it to the people apart from the legal
heirs, because the Prophet (pbuh) said: There is no will for the
heirs. [Tirmidhi, Kitaab al-Wasaayaa, Hadith No.2120] . And Allah knows
the best.
4. INHERITANCE CONCEPT IN ISLAM
Question :
Please explain Islamic view on inheritance?
Answer :
This article gives an overview of the Islamic laws of inheritance with the aim
of increasing the awareness of the Muslim community living in the west
regarding this important aspect of Islamic law. The scope of this article is
confined to traditional Sunni Islamic law.
When a Muslim dies there are four duties which need to be performed.
These are:
1.

Funeral Expenses: That the expenses for the necessary

requirements from the time of death until completion of the burial
be drawn as a first charge from the estate.

2.

Debts
&
Obligations:
Thereafter,
from
the
remaining Tarakah (estate) all debts including unpaid Mah-r (dowry)
shall be paid. Both, or either one, of these debts shall be second
charge to be drawn from the estate (Tarakah).

3.

Execution of Will: Thereafter, any Wasiyah (testament or bequest)

in favor of non-heirs shall be fulfilled from one-third (1/3) of
the Tarakah (remaining estate). This due and liability shall be third
charge drawn from the remaining estate.
{Islaamic Shariah only allows a Wasiyah in one third of
the Tarakah (remaining estate). The Shariah disallows any portion
of Wasiyah, which is in excess of 1/3 (one third) of
the Tarakah. This Wasiyah shall be a first charge to be paid before
the rightful inheritors receive their share from the Tarakah.}

4.

Distribution: Lastly, the Tarakah (final residue) of the estate shall be

distributed among the rightful heirs of the deceased Muslim
according to the law of inheritance specified by the Glorious Quran,
Sunnah, and Ijmaa.

It is assumed that the preliminary issues have been resolved and we shall
confine ourselves principally to discussing the fourth and last duty. The task
is to firstly, determine which of the relatives of the deceased are entitled to
inherit and secondly, to determine the quantum share entitlement of each
of the heirs concerned.
Needless to say Muslims must follow all the commandments of Allah (SWT)
as Allah the Almighty says, "It is not for a believer, man or woman, when
Allah and His Messenger have decreed a matter that they should have any
opinion in their decision. And whoever disobeys Allah and His Messenger,
has indeed strayed into a plain error." [Al-Ahzab 33:36]
The particular importance of the Islamic laws of inheritance is obvious from
the verses immediately following those verses giving specific details on
inheritance shares, "These are limits (set by) Allah (or ordainments as
regards laws of inheritance), and whosoever obeys Allah and His Messenger
will be admitted to Gardens under which rivers flow (in Paradise), to abide
therein, and that will be the great success.(13) "And whosoever disobeys
Allah and His Messenger, and transgresses His limits, He will cast him into
the Fire, to abide therein; and he shall have a disgraceful torment." [AnNisa 4:13-14]
The laws of inheritance take on an even greater prominence in Islam
because of the restriction placed by Sharia on the testamentary power of
the testator as we shall see later in this article.
The divine justness and equitability of the Islamic laws of inheritance have
been correctly appreciated by many non-Muslim scholars such as Professor
Almaric Rumsey (1825-1899) of King's College, London, the author of many
works on the subject of the Muslim law of inheritance and a barrister-at-law,
who stated that the Muslim law of inheritance, "comprises beyond question
the most refined and elaborate system of rules for the devolution of
property that is known to the civilized world.1"

Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS)
said, "Give the Faraid (the shares of the inheritance that are prescribed in
the Quran) to those who are entitled to receive it. Then whatever remains,
should be given to the closest male relative of the deceased." (Sahih alBukhari)
By specifying clear-cut entitlement and specific shares of female relatives,
Islam not only elevated the position of women but simultaneously
safeguarded their social and economic interests as long ago as 1400 years.
The Quran contains only three verses [4:11, 4:12 and 4:176] which give
specific details of inheritance shares. Using the information in these verses
together with the traditions of the Prophet Muhammad (SAWS) as well as
methods of juristic reasoning, the Muslims jurists have expounded the laws
of inheritance in such meticulous detail that large volumes of work have
been written on this subject.
"Allah commands you regarding your children. For the male a share
equivalent to that of two females " [An-Nisa 4:11]
This first principle which the Quran lays down refers to males and females
of equal degree and class. This means that a son inherits a share equivalent
to that of two daughters, a full (germane) brother inherits twice as much as
a full sister, a sons son inherits twice as much as a sons daughter and so
on. This principle is however, not universally applicable as we shall see later
in verse 4:12, the descendants of the mother notably the uterine brother
and uterine sister inherit equally as do their descendants.
"...If (there are) women (daughters) more than two, then for them two
thirds of the inheritance; and if there is only one then it is half...." [An-Nisa
4:12]
Women in this context refers to daughters. The Quran gives the daughter a
specific share. In legal terminology the daughter is referred to as a Quranic
heir or sharer (ashab al-faraid). The Quran mentions nine such obligatory
sharers as we shall see later. Muslims jurists have added a further three by
the juristic method of qiyas (analogy). So in Islamic jurisprudence there are
a total of twelve relations who inherit as sharers.
If there are any sons the share of the daughter(s) is no longer fixed because
the share of the daughter is determined by the principle that a son inherits
twice as much as a daughter. In the absence of any daughters this rule is
applicable to agnatic granddaughters (son's daughters). The agnatic
granddaughter has been made a Quranic heir (sharer) by Muslim jurists by
analogy.
If there is only a single daughter or agantic granddaughter her share is a
fixed one-half, if there are two or more daughters or agnatic
granddaughters then their share is two-thirds. Two or more daughters will
totally exclude any granddaughters. If there is one daughter and agnatic
granddaughters, the daughter inherits one-half share and the agnatic
granddaughters inherit the remaining one-sixth, making a total of twothirds. If there are agnatic grandsons amongst the heirs then the principle
that the male inherits a portion equivalent to that of two females applies.

"....And for his parents for each of them there is one-sixth of the inheritance
if he has a child, but if he does not have a child and the parents are the
heirs then for the mother one-third...." [An-Nisa 4:11]
The Arabic word "walad" has been variously translated as child, son,
children and offspring by translators. However, there is universal agreement
amongst the Sunni Muslim jurists that "walad" here refers to any child or
agnatic grandchild (grandchild through son).
If there is a child or agnatic grandchild amongst the heirs then each of the
parents inherits one-sixth. In the absence of a child or agnatic grandchild
the mother inherits one-third, the share of the father is not mentioned
under these circumstances. The father in fact inherits as a residuary (a
residuary heir gets whatever remains of the inheritance after the Quranic
sharers have been allocated their shares, residuary heirs are generally male
agnates) under these circumstances.
To these two Quranic heirs, the mother and the father, the maternal
grandmother and paternal grandfather have been added by analogy. The
maternal grandmother substitutes the mother in the latter's absence.
"....but if he has brothers (or sisters) then for the mother one-sixth...." [AnNisa 4:11]
The consensus of opinion is that the word "akhwatun" used in the Quranic
text means two or more brothers or sisters of any kind. So that any
combination of full, consanguine or uterine brothers and sisters, if two or
more will mean that the mother inherits a one-sixth share.
"....And for you there is one-half of what your wives leave behind if there is
no child, but if they leave a child then for you there is one-fourth of what
they leave behind...." [An-Nisa 4:12]
Again according to Islamic law the word "walad" here is interpreted as child
or agnatic grandchild. The husband, another Quranic heir, inherits one-half
in the absence of a child or agnatic grandchild and one-quarter in the
presence of a child or agnatic grandchild.
"And for them one-fourth of what you leave behind if you did not have a
child, but if you have a child then for them one-eighth of what you leave
behind; " [An-Nisa 4:12]
This statement gives us the ruling on the share of the wife (widow). The
share of the wife is one-quarter in the absence of a child or agnatic
grandchild and one-eighth in the presence of a child or agnatic grandchild.
Two or more wives share equally in this prescribed share.
Before continuing with the translation of verse 4:12 let us consider a
situation where a woman dies leaving behind a husband and both parents
as the only heirs.
The husband inherits one-half of the estate, there is no argument on this
point. However, if we give the mother a one-third share then the father is
left with only one-sixth. Should the male (father) not get twice the share of
the female (mother) of equal degree and class?

This problem arose during the caliphate of Umar ibn Khattab (RA). After
consultation with the learned companions the majority opinion was that the
father should get twice the share of the mother, that is to say, the principle
that the male inherits the share of two females is upheld. The father
therefore, inherits one-third and the mother one-sixth
In light of this ruling the sentence of verse 4:11 on this matter which reads,
"...but if he does not have a child and the parents are the heirs then for the
mother one-third." is interpreted to mean, "...but if he does not have a child
and the parents are the (only) heirs then for the mother one-third."
"....And if a kalala man or woman (one who has neither ascendants nor
descendants) is inherited from, and he (or she) has a (uterine) brother or
(uterine) sister then for each of them (there is) one-sixth. But if they
(uterine brothers and sisters) are more than that then they are sharers in
one-third (equally)...." [An-Nisa 4:12]
The interpretation of the second half of verse 4:12 has been a source of
controversy, one reason being the meaning of the word "kalala". This word
"kalala" occurs only in two places in the Quran [4:12 and 4:176] and on
both occasions regarding inheritance. "Kalala" may mean "one who leaves
neither parent nor child" or "all those except the parent and child". It is
generally taken to mean the former.
It is universally agreed that the siblings referred to in this verse are uterine
siblings (those with the same mother but different fathers).
The uterine siblings only inherit in the absence of any descendants or
ascendants. If there is only one uterine sibling he or she inherits a one-sixth
share. If there are two or more uterine siblings they together inherit a onethird share equally.
The heirs mentioned in the Quran (mother, father, husband, widow,
daughter, uterine brother, full sister, uterine sister, consanguine sister)
together with the three heirs added by juristic method of analogy (paternal
grandfather, maternal grandmother and agnatic granddaughter) form a
group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs
when entitled to inherit are given their fixed shares and the remaining
estate is inherited by the residuaries (asaba).
Under Islamic law some of the Quranic heirs, namely the father, paternal
grandfather, daughter, agnatic granddaughter, full sister, consanguine
sister and the mother, can also inherit as residuaries under certain
circumstances.
Certain heirs referred to as primary heirs are always entitled to a share of
the inheritance, they are never totally excluded. These primary heirs consist
of the spouse relict, both parents, the son and the daughter. All remaining
heirs can be totally excluded by the presence of other heirs. There are
several rules of exclusion which determine the exclusion of some heirs by
the presence of others. It not possible to discuss all these rules in an article
of this nature but in brief :
1. A person (e.g. Brother) who is related to the deceased through another
(i.e. Father) is excluded by the presence of the latter,

2.

An individual nearer in degree (proximity) to the deceased excludes the

one who is remoter within the same class of heirs (son excludes all
grandsons),

3. Full blood excludes half-blood through father (so a full brother will
exclude a consanguine brother but not a uterine brother)
The majority view is that the full and consanguine brother is not
excluded by the paternal grandfather. However, the Hanafi fiqh allows
the paternal grandfather to totally exclude the agnatic siblings.
Heirs may also be prevented from inheriting by disqualification. The
only two practical situations that are causes of disqualification are
difference of religion and homicide.
The Prophet (SAWS) said, "A Muslim cannot be the heir of a disbeliever,
nor can a disbeliever be the heir of a Muslim." (Sahih al-Bukhari)
Generally speaking, and this is also the majority view, a Muslim cannot
inherit from a non-Muslim. Although the Hanafi fiqh does allow a
Muslim to inherit from an apostate.
Allah's Messenger (SAWS) said, "One who kills a man cannot inherit
from him." (Tirmidhi and Ibn Majah)
All the jurists agree that intentional or unjustifiable killing according to
Sharia is a bar to inheritance because if such people are allowed to kill
and then benefit from the estate of the victim, it will encourage
incidents of homicide.
It should be noted that only relatives with a legitimate blood
relationship to the deceased are entitled to inherit from the deceased
under Islamic law. Thus, illegitimate children according to Islamic law
and adopted children have no part in inheritance. Incidentally legal
adoption as practiced in the west is forbidden in Islam.
Under certain circumstances after allocation of the estate amongst all
the heirs with fixed shares there is a residue left over but there are no
residuaries. This residue called al-radd is returned to those sharers who
are entitled to it, in proportion to their original shares. Conversely a
situation may arise when the total sum of the assigned shares of the
heirs with fixed shares is greater than unity. In this situation all the
shares are abated proportionately by the doctrine of al-awl which
involves decreasing the fractional shares to a common denominator,
and increasing the denominator in order to make it equal to the sum of
the numerators.
The amalgamation of the old customary agnatic law and the Quranic
law has led to a number of problems which Muslim jurists have solved
with great ingenuity. I shall mention one such case which occurred
during the caliphate of Umar ibn Khattab (RA). A woman died leaving
behind a husband, mother, two uterine brothers and two full brothers.
Umar ibn al-Khattab (RA) by systematically applying the rules gave the
Quranic heirs their shares, husband (1/2), mother (1/6) and the two
uterine brothers (1/3). The two full brothers acting as residuaries

received nothing because there is no residue. The two full brothers,

who would have been the sole heirs under the old customary agantic
system, argued that even if their father was a donkey or a stone cast
into the sea and they had no paternal relationship, they still had the
same and equal relationship with the deceased as the uterine brothers
through the same mother. Umar ibn al-Khattab (RA) reconsidered his
ruling and allowed the full brothers to inherit equally with the uterine
brothers in the share of 1/3.
The reader will have noticed that uterine (or cognate) relatives have
not figured in the discussion thus far. This group of potential heirs
contains all those relatives who are neither Quranic sharers nor male
agnates and constitute the largest group within the context of
inheritance. They are referred to as dhawu al-arham (or distant
kindred). The majority view is that they are entitled to inherit when
there are no residuaries and no sharers entitled to al-radd. Only the
traditional Maliki fiqh does not allow the distant kindred to inherit, any
residue is given to the bait al-mal (public treasury). The rules of
inheritance amongst the distant kindred are relatively complex and
hence not mentioned here.
The Islamic laws of inheritance that have been discussed here can be
legitimately accommodated and practically implemented within many
existing western legislation systems by way of a valid will. In fact for
those Muslims living in the west a will becomes an essential necessity
to prevent intestate succession law of the land being applied to their
estate after they die.
The will should comply with the law of the land so that it can be
executed after a persons death without any unnecessary legal
problems. Needless to say nothing in the will should be contrary to
Sharia.
Sharia has placed two restrictions on the testator. Firstly, to whom he
can bequeath his estate and secondly, the amount that he can
bequeath. The majority view is that a bequest in excess of one-third of
the net estate is invalid unless consented to by the legal heirs as is a
bequest in favour of a legal heir.

5. INHERITANCE: A COMPLICATED QUESTION OF INHERITANCE

Question :
When my father-in-law died, he left behind two wives, one of them nonMuslim with one son and one daughter. He also had two sons and three
daughters by his second Muslim wife. His second wife bought a house and
registered it in her name after his death. She subsequently died. My fatherin-law had also two properties, the first registered in his two wives' names
and the second in their two elder sons' names. The first wife's son demands
a 50 percent share of all three properties. A lawyer has told me that the first
wife's children do not have any shares in these properties. I will be grateful
for your advice on how these properties be shared out.

Answer :
You seem to imply that all three properties belong to your father-in-law in
spite of their registration in various names. You have to establish that either
through the agreement of all heirs, or by some other proof. If you cannot,
then the house which is registered in the two eldest sons' names will remain
theirs and each of them will be able to take his share. If they have given
pledge to their late father that they would be looking after their brothers
and sisters, then they must do that. Obviously, there is no court which will
be able to enforce that without their cooperation. If they claim that the
house belongs to them, they have a legal evidence. The Prophet has
warned against this in a very serious manner.
He says; "I am only a human being and you put your disputes to me. Some
of you may have a stronger argument than that of his brother. If I give him
something which belongs by right to his brother, I am only giving him a
brand of fire which he may take or leave."
Here the two eldest sons have that strong argument. If their father had
placed them in this position so that they will ensure that their brothers and
sisters will have their fair shares and they refuse to do that, they are
unfaithful to their trust. I understand that both wives are now dead. This
complicates matter immensely, particularly with regard to the first property
which is registered in their two names. Perhaps the best thing that could
happen here is an agreement by all children of your father-in-law by his two
late wives, that the property belonged in reality to him, and therefore, it
should be divided among his heirs. If they do not agree and a court will
decide on the inheritance of that property, the following will happen. One
half of the property which is in the name of the Muslim wife will be inherited
by her five children on the basis of one share for each daughter and two
shares for each son. This assumes that your later mother-in-law did not
have any other heirs, such as her parents. The other half of the property
which was registered by the non-Muslim wife of your father-in-law could not
be inherited by her children, because her children are Muslims, following
their father's religion. Therefore, it is to be inherited by her non-Muslim
relatives.
The third property is even more problematic. There are two possibilities
here: If the price of that property was equal to or less than the share of your
late mother-in-law in her husband's inheritance: A wife whose husband has
children, inherits only one eighth of her husband's property. If he has more
than one wife, then the wives' share altogether will be one eighth. But
because the other wife was a non-Muslim, she does not inherit anything
from her husband. The Prophet says that the followers of two different
religions do not inherit from one another. As I have already mentioned, her
children do not inherit from her because they are Muslims and she was not.
Nor does she inherit from her husband or from her children if she survived
them. Therefore, your late mother-in-law's share was one eighth of the full
property of her husband. If that was sufficient to buy the house, then we
consider it as her own property and it goes to her own children. The other
children of your late father-in-law do not take any part of this house. This
sharing here is a one seventh share of each of the two sons. This assumes
that she had no other heirs. Her parents would have inherited from her as
well if they had survived her.

The other possibility is that the price of the property was larger than your
late mother-in-law's share: In this case, the best thing is to turn that
property to your father-in-law's estate which should be shared by his heirs.
The claim of the first wife's son for a 50 percent share of everything is
inadmissible. You will have to explain to him that the sharing of inheritance
has been pre-determined by Allah. In this case, whatever is finally agreed to
be part of your father-in-law's estate should be shared out in the following
manner: One eighth to his second wife. She receives her share because she
survived her husband. The remainder goes to all children by both
marriages. Altogether, he had three sons and four daughters surviving him.
The rest of his property, i.e. after payment of one eighth to his Muslim wife,
should be divided to ten shares, giving one share to each of the daughters
and two shares to each of the three sons. Again this assumes that neither of
your father-in-law's parents had survived him. If either did, then they
receive one sixth share each before dividing the remainder among his
children. There is further division to be made, - that of the share of your late
mother-in-law. She is inherited only by her own children, not by the children
of the first wife. If neither of her parents is alive, her property is divided into
seven shares, giving one to each daughter and two shares to each son.

Our Dialogue ( Source : Arab News - Jeddah )

6. INHERITANCE: WHEN THERE IS NO SON

Question :
A man died leaving behind his wife, five daughters, and one brother who
has two sons. How will his property be divided among them?
Answer :
The first thing to be paid out of the estate of the deceased is the settlement
of any debts he might have left unpaid. Secondly, his will should be
executed. A Muslim may leave up to one third of his property to people
other than his heirs by will. He may apportion certain parts of his property
to any relatives who are not assigned shares of his inheritance according to
the Islamic system. He may also wish to give away something for charity.
When this man's debts are paid and his will is executed, the remainder is
divided among his heirs as follows: one eighth to his wife and two thirds to
be divided equally among his five daughters. The remainder goes to his
brother. In this particular case it comes to just over one fifth. His two
nephews receive nothing.

Our Dialogue ( Source : Arab News - Jeddah )

7. WILL: A WILL THAT SHOULD NOT BE IMPLEMENTED

Question :
Before his death, my husband wrote a will which makes me the whole
beneficiary of the house he owned, whether I wish to occupy or let it,
provided that I do not get married. If I am married again, the house should
be sold, in which case I get 50 percent of the price and my husband's son
and two daughters would share the other half equally. My late husband's
children understand and accept his will. I am now considering selling the
house, but a relative of mine has created some doubts in my mind about
the legitimacy of my husband's will. I would be grateful for your advice. May
I ask full guidance on how I should write my own will? I have no children of
my own, but I have one sister and two brothers, only one of whom is a full
brother. May I add that in my country the Islamic family law is not
recognized?
Answer :
One of the most important aspects of Islamic law is the way it deals with
inheritance which is an area where it is easy to deny the rights of the
weaker elements in the family and in society at large. For example, there
are certain communities, some of whom profess to be Muslims, but
nevertheless deny women all rights of inheritance. In other areas where the
marriage of a daughter is an extremely expensive affair for her father, it is
considered that if a father had married off his daughters, then he had done
all his duty by them and whatever estate he leaves behind should be
shared by his sons. I realize that none of this applies to the Muslim
community in your country.
However, because you are a small minority, many people tend to accept,
knowingly or unknowingly, the prevailing traditions or laws thinking that
Islam has no objection to them. Your husband has made out his will thinking
that it serves the best interests of his surviving relatives. It may be so, but
he did not refer to the Islamic law of inheritance which is very detailed.
What I would like you to know is that the Islamic law of inheritance has
been laid down by Allah Himself who has stated its provisions in detail,
apportioning shares of the estate to close relatives in all cases. Scholars
have studied this system in depth and its provisions have been made clear
for all situations. Hence, there can be no excuse for a Muslim man or
woman to deal unjustly with any one of his or her heirs or to deny any of
them his or her apportioned share, or indeed to give any of his heirs more
than the share Allah has given him or her. What we have to remember is
that no one may disinherit any heir, nor indeed can a person give any heir
more than his or her apportioned share.
The Prophet says very clearly: "No will may be made in favor of an heir." You
are one of your husband's heirs, according to the provisions of the Islamic
law Allah Himself has enacted. Because your late husband had children,
although they are by an earlier marriage, you are entitled to receive one
eighth of everything that he had left behind, whether in real estate, cash,
shares, furniture, etc.

The remainder should be divided between his other relatives. You have not
told me whether he left behind any other relatives, such as a parent, a
grandparent, or other children. Assuming that he had none, then you are his
only heir who has a specified share. When any debt he left outstanding had
been paid out and when the provisions of his will to any person who is not
an heir have been carried out, you receive one eighth of his estate. The
other seven-eighths go to his children whom you have mentioned as one
son and two daughters. The son receives half of all that and the two
daughters share the other half equally. This is the division which you should
make sure to implement in order to comply with Allah's orders. You should
speak to your late husband's children and explain the situation and carry
out the division.
You may end up receiving much less than what your late husband wanted
you to receive, but his wishes cannot overrule divine orders. The thing to do
with his will is to disregard it altogether so that he may not have to account
for it on the day of judgment. Perhaps I should emphasize that what should
be disregarded in his will is the provisions relating to you and his children. If
the will includes other provisions, these should be carried out if they are in
line with Islamic law.
If a Muslim does not leave any will, then all his estate should be divided
among his heirs in accordance with the Islamic law. The will, from the
Islamic point of view, is to cater for those relatives who are not among
heirs, or to give away what a person wants to give to charity. Therefore, you
need not make a will in favor of your brothers and sister because they will
receive their shares automatically if they are among your heirs. You have
not told me whether any of your parents is alive. I can tell you that if your
father is alive, then your sisters and two brothers will receive nothing.
Assuming that you have no surviving parents or grandparents, and knowing
that you have no children, then your brothers and sister are your only heirs.
Your property should be divided into five portions, with your sister receiving
one portion [20%] and two portions [40%] going to each of your brothers. If
you need to make a will in their favor in order to ensure that they receive
their proper share, then these are the lines on which you should make your
will. Otherwise, you are entitled to dispose of one-third of your property as
you deem fit, in order to look after some poor relatives who are not heirs,
such as an aunt, a poor cousin, etc.
By the way, if you decide to marry again, then the situation will change,
because your new husband will be one of your heirs, and if you remain
childless, then he would be entitled to receive one half of what you leave
behind. If you have a child, then your husband's share will be reduced to
one quarter. Moreover, if you have a child, then your brothers and sister will
cease to be among your heirs.

Our Dialogue ( Source : Arab News - Jeddah )

8. WOMEN MAKING WILL
Question :
Does Islam allows, the women is married or unmarried, to make a will?

Answer :
Any adult woman, irrespective whether she is married or unmarried, has the
right to own or dispose any of her property, without consultation. If she
wants, she can take consultation or not. She has the right to make a will,
Islam does not prohibit her that.
9. WAQF INHERITANCE
Question:
A woman died leaving behind 4 daughters, 2 sisters, and a brother who has 6
sons and 6 daughters. She left a house but she endowed it for Allah before
she died. Do the heirs have the right to consider it heritage and start dividing
it?
Answer: Praise be to Allah.
If the deceased gave her house as a charitable waqf when she was in good
health, then her heirs have no right to it, because it has become a waqf and
it cannot be sold, given away or inherited. Al-Bukhaari (2737) and Muslim
(1633) narrated from Ibn Umar (may Allah be pleased with him) that Umar
was given a share of land in Khaybar, and he came to the Prophet (S) to
consult him about it.He said: O Messenger of Allah, I have been given a share
of land at Khaybar and I have never been given any wealth that is more
precious to me than it. What do you command me to do with it? He said: If
you wish, you can freeze it and give it in charity. So Umar gave it in
charity and stipulated that it was not to be sold, given as a gift or inherited,
and he gave it in charity to the poor, relatives and slaves, for the sake of
Allah and for wayfarers and guests; there was no sin on the one appointed to
look after it if he ate from it on a reasonable basis, and fed a friend without
storing anything for the future.
But if she gave this house as a waqf during the illness from which she died,
then it comes under the heading of a bequest, and a bequest can only apply
to one-third of the estate; any more than one-third can only be given as a
waqf if the heirs allow it.
If the house is no more than one-third of her estate, then the whole house is
a waqf. If it is more than one-third, then the bequest should be executed with
regard to the equivalent of one-third of the estate, and with regard to the
rest, that is dependent upon the consent of the heir. If they do not give
consent, then they may share it out as an inheritance.
Ibn Qudaamah (may Allah have mercy on him) said in al-Mughni (5/365): A
waqf that is given during ones final illness is treated as a bequest with
regard to one-third of the estate, because it is a donation. Therefore, if it is
given during the final illness, then it is to be executed with regard to onethird of the estate, such as freeing slaves and giving gifts. If it is less than
one-third then it may be done without the consent of the heirs and it is
binding; if it is more than one-third, the equivalent of one-third should be
made a waqf, and the additional amount may be made a waqf if the heirs
give consent. We do not know of any difference of opinion concerning that
among those who say that a waqf is binding, because the rights of the heirs

have to do with the wealth that was present during the deceaseds illness,
and it is forbidden to give away more than one-third. End quote.
Primary heirs
There are 12 primary heirs in total - four males and eight females.
The male heirs are:
father
grandfather (father's father and mother's father)
uterine brother (half brother on mother's side), and
husband.
The female heirs are:
wife
daughter
granddaughter
full sister
consanguine sister (half sister on father's side)
uterine sister (half sister on mother's side)
mother, and
grandmother (father's mother and mother's mother).
Sharia rules define exactly how much of the remaining estate each primary
heir receives, depending primarily on the total number of heirs. They will not,
however, receive the entire estate between them, as a portion will be
reserved to the residuary beneficiaries.
3.3.2 Residuary heirs
At first glance, the list of primary heirs may seem incomplete, particularly as
it does not include sons or full brothers. That is because sons and full
brothers are residuary beneficiaries, who receive their entitlement after the
primary heirs. There are different types of residuary beneficiaries, but the
most common are those related by birth to the deceased, being male
relatives whose link to the deceased is not solely via a female. As well as
fathers and sons, this will include full brothers of the deceased.
If there are no residuary heirs, then the entire estate is divided between the
primary heirs pro rata to their original entitlements. If there are no primary
heirs and no residuary heirs, the estate goes to more distant relations: blood
relatives of the deceased who are neither primary heirs nor residuary heirs.