NOTES ON MUSLIM PERSONAL LAW OF SUCCESSION

By: MOHD MUSIB BUAT

I. INTRODUCTION:
Pre- Islamic Arabia was characterized by unqualified patriarchal
nepotism. There was no distinction between ancestral and self-acquired
property. Inheritance devolved on male heirs and property ownership
concentrated into unified families. Females did not have the right to inherit.
This was based on the strong Arab tradition that those who wielded the
sword have the exclusive right to inherit.
A. Reforms introduced by Islam:
The advent of Islam brought about the following reforms:
1. Females were made co-heirs of men;
2. Property is divided among heirs on democratic basis and on the
basis also of
responsibility; and,
3. Transmission of inheritance devolve upon the basis of those who
have the strongest
claim and benefit.
Under the Jewish law, women are not in a better position than
men, and claim of descendants, to inheritance were on per stripes and not
on the basis of the strength of blood relation with the descendant.
B. Law of Succession:
Islamic law recognizes succession as one of the mode of transmission
of property. Ownership by succession is called Milkiyyah bi khalifah. The law
of succession is either:
1. Optional or Iktiyariyyah, in the form of bequest or wasiyah;
2. Compulsory or Ajbariyyah, by means of the rules prescribed by
Shariah ( Islamic
Law).
Succession is known in Arabic as Al-Mawarith (Inheritance). Its study
has come to be known as a science (Ilm) and forms part of the practical
knowledge of man. In law, it is known as Faraid.
II. SCIENCE OF INHERITANCE:

Imul-Mirath is the generic term for the science of inheritance. As a

legal science, it is known as Imul- Faraid. The latter is specifically defined as
the science of fixing shares and obligations in inheritance. Faraid is
derivative from Fardh (ordained, fixed, and determined). It means
appointment, precision, explanation and is established by precise and
conclusive evidence. This branch of law is termed as Faraid because the
share (sihan) of the legal heirs in the property of the decedent have been
expressly ordained or appointed by the Holy Quran, and are based on the
established or precise and conclusively evidence. The former (Mirath) is a
generic term while the latter is a precise statement of the law (faraid).
Faraid (Science of Inheritance deals with the fixing of shares, qualification of
heirs, rights and obligations and the proportion of shares with respect to the
estate of decedent.
A. Importance of Ilmul Faraid
According to the Holy Prophet (s.w.s.)
Learn the laws of inheritance, and teach them to the people; for they are
one-half of useful knowledge.
The Prophet has also enjoined the study of the science of inheritance
during the lifetime by emphasizing that this science will appear if not studied
and anarchy (Fitna) will ensue if no one will be a judge (law) among his
people (knowledgeable of the science). The study of Imul-Faraid is
considered by scholars as Fardhu-Khifhay; meaning obligatory to some
members of the community (Ummah).
B. Sources of the Science of Inheritance
The basic of the science of inheritance are:
a. Holy Quran
b. Hadith
c. Ijma-al-ummah (consensus of the community, usages)
The basic principles of inheritance under the Holy Quran are found in
Chapter IV (surat-ul-Nisa), specifically verses 7, 8, 9, 11, 12 and 176. Verses
7, 8, and 9 deal with the general principles; verses 11 specifies the shares of
the children and parents of the decedent, and collaterals; while verse 176
refers to shares of full consanguine brothers or sisters in the absence of
ascendants and descendants. Verse 12 then has been interpreted to refer to
the shares of uterine brother(s) or sister(s).
On the basis of broad principles laid down in the Holy Quran, the
precise details have been worked out by Muslim jurists (Fugaha) from the

Prophets (s.w.s). Traditions (Hadith) that if his companions and by

interpretation and analogy (Ijma And Qiyas).
Some of the major works on the subject are those of Ibn
Qasin Al Hawfi (Mukhtasar, Maliki) Al-Ja-di, Ibn-al- Muhmmar
Other compilations and works on Muslim jurist are those
Sajawandi, and Abul Maali (Imam Al Horamayn) and by
( Minhajet Talibin, Shafie).

Thabit, Abulat Tarabulisi.

of Sirajuddin
Imam nwawi

PART 1. SCIENCE OF INHERITANCE

Chapter 1. Rights attached to the Estate of the Decedent
(Al Hukuk al Mutaalika bi Tarikah)
A. Definition of the Estate of Decedent (Tarif el Tarikah)
The estate of a decedent is called Farikah. This consist of the gross
estate of the decedent. It includes all properties, whether movable or
immovable, claims and charges, liens, claims arising from compensation, i.e.,
blood money (diyat), wages of remuneration from employment or services
rendered, shares or benefits from chargeable endowment (waqf), water
rights, rights of way, easements, etc.
The above definition is agreed among sunni jurists. Islamic law,
however, distinguish between rights which are purely personal and real
rights (rights in rem and rights in personal). Personal rights (hak Bakta) of a
decedent which are not transmittable to his heir are rights to employment ,
obligations and rights arising from custody and guardianship of niners
(waaqul wilaya ali nafs) and personal privilege. However, rights arising from
a conditional sale or contract (Hukuk Fedima) to buy decedent is
transmittable to his heirs and forms part of his estate. Personal rights are
called Hukuk Saksiya.
B. Charges or Liens to the Estate
There are five(5) arising from liens or charges to the estate of decedent,
namely:
1. Specific rights( Al Hukuk al Ainiyah) These rights are specifically
attached to the property of decedent,. These include zakat ( legal alms or
tithe) and mortgages or pledges on specific properties used as guarantees or
collateral for a loan or debt (as understood in Islamic law).

According to Imam Shafil, the rights of God (Allah) has preference over
other obligations. The zakat, as prescribed, must be charged on specific
properties like agricultural produce, working animals or cattles and other
properties subject to zakat.
2. Rights of Decedent Over his Estate- ( Hukuk elmaith-minal-farikah)
This is the only right which a person will have after his death over his estate,
i.e., funeral expenses. It consists of fees to be paid or incurred in the
washing, shrouding and interment of his remains, which must be performed
in a manner suitable to his conditions. These expenses, as agreed among the
Muslim jurists, must be reasonable. These also include expenses to be
incurred for his support before the settlement of his estate.
3. All kinds of Debts ( Audyonal Mutlaqah)- What remains after
deduction of the funeral expenses and special right are subject to payment
of all kinds of debts of the decedent which have incurred before his death.
Threr are two (2) classes for such debts: (a) debts incurred in good health
(Aduyon Mursala): and (b) debt incurred in illness. Imam Malik and Imam
Sahfii did not make distinction between these two debts. However, in case
of debts incurred in serious illness, as in marad-al-maut 9death illness, the
former debts incurred in good health will be given preference over this if the
decedent will be suspected of hiding away his property from his heirs, i.e., if
the debt incurred in debt illness appears excessive or is over and above the
legally disposable portion which decedent could lawfully give in bequest
(wasiya).
Long term debts (which have not matured) become due at the time of
death of decedent, Muslim jurists are agreed that debts are based on
confidence exist as long as the debtor is alive. Unpaid or deferred dower
(mahar included under this category). The dower of the band, becomes
chargeable to his estate.
4. Rights of Legatees( Al Hak el Waratha) The remainder of the estate
of the decedent becomes the disposable portion of his estate in favor of his
heirs after deduction of the foregoing charges. These right of the heirs over
the disposable estate of the decedent are governed by the rules of
inheritance with respect to requisites, conditions, qualifications and rules on
exclusion.
The next estate of the decedent after satisfaction of the four (4)
charges is called al-mirath (net disposable estate). Other authorities
generally classify these charges over the estate of decedent in the following
order of preference:

1.
2.
3.
4.

Funeral expenses
All kinds of debts and charges
All legacies
Shares of legal heirs

All kinds of debts, whether arising from specific rights or charges and
obligations. If the decedent dies without leaving any property, such debt
becomes bad debts and heirs are only liable to the extent of the estate left
by the decedent.( agreed by Imam Mulik and Imam Shafii).
Expenses incurred in the administration and settlement of the estate of
the decedent and expenses for the probate of a will may be classified (by
way of analogy) under all kinds of debts chargeable to the estate of
decedent.
Debts incurred by decedent in good health can be proven by the
testimony of witnesses present when the debt was contracted or by proof of
acknowledgement of such debt by decedent. Debts incurred in illness can
only be proven by an oral or written acknowledgement of decedent made at
the time of his serious illness.
Chapter II. Essential Elements and Requisites
A. Essential Elements of Inheritance (Arkhamul- Mirath)
Rukn is the singular of Arkhan (essential element). Muslim jurists make
distinction between essential elements and surut (conditions, sing. sart).
The former forms part of the rights of inheritance (al-waratha) wehile the
latter are pre- conditions or pre-requisites for the exercise of such rights.
These essential elements are:
1. Death of a decedent (al murath)
2. Presence of heirs (al warith)
3. Estate left by decedent (al mauruth)
B. Essential Requisites of Inheritance (Surut)
These essential requisites are conditions precedent before the
settlement of the estate under the law of inheritance. Specifically, they are:
1. Proof of the death of a decedent (Maut al Murath)
2. Survival of the heirs of the decedent ( al ilm bi jihati al irth)
3. Ascertainment of the basis of inheritance (al ilm bi jihati al irth)

The proof of the death of the decedent may be proven either by the
fact of actual death, rules governing presumption of death, and by judicial
decree declaring the presumption of death of a person (whether as an heir or
as a decedent leaving behind an estate).
Islamic law does not recognize the right of representation as
understood in Civil Law;hence, an heir who predeceased the decedent does
not have avested right over the estate of the decedent as would amount to
transmit such right to his surviving heirs (heirs of the former).
Chapter III. Basis of Inheritance (Ashab)
The inheritance (Ashab-ul-mirath) was founded on four causes namely:
1.
2.
3.
4.

Kinship or blood relation(nasa or karabah)

Marriage (nikah or zaudziah)
Clientage or special cause (wila)
Al Islam (Bait-ul mal)

A. Kinship Relation
Kinship relation or blood relation is also founded on three (3) sub
causes):
1. Parent-Child relation ( Bonua)
2. Parentage (Obua)
3. Brother-Sister Relation ( Okua)
B. Marriage Relation
Marriage relation must be based on valid ( lawful or legal) marriage
and not invalid or void marriage (butil). There is agreement among Muslim
jurists that there are mutual rights of succession arising from void or invalid
marriage. It is submitted that if irregular (Fasid) marriages are validated in
accordance with Islamic law, mutual rights of succession will arise there
from, although there are some varying views.
C. Wila or Special Cause
Relationship by special cause (wila) is of two types:
1. Wila by emancipation (wila-ul-itik) and

2. Wila by mutual friendship (wila-ul- Mawalat)

In the absence of legal heirs, the emancipator (or emancipatrees) has
the right to inherit from his/her emancipated slave, although the latter has
no right to succeed from his/her former master.
The reason for this is that an inferior (freed slave) does not have any
successional right over the property of his superior for being former property
of the latter, while the superior (master) has such right for freeing the latter
out of his benevolence. The emancipator in sunni law is also known as
Asabah by Wila (Residuary by special cause) and is classified by some
authorities as forming the forth class of kinship relation (nasab/karabah). In
the absence of the manumittor, his male heir, not the females or residuary
heirs succeed to the estate of the freedman.
Succession by Wila-ul-Mawalat is deferred until all other heirs are
exhausted, unlike the emancipator (wila-ul-itk) co-existing with distant
kindred (dhabwil-arham). The Shafii school call this form of succession as
fraudulent on the part of the Baital-mal (public treasury of the Muslims) is
considered invalid or illegal. This succession right is also known as clientage
relation. It implies responsibility on the part of the patron for the delicts of
his Mawla (client).
D. Heir by Acknowledgement
Another form of succession by special cause is known as heir by
acknowledgement. This is established when both the acknowledger who are
persons of unknown descent has admitted as blood tie or relation other than
paternity. If persons of unknown parentage call themselves brothers and one
of them dies without leaving legal heirs, the survivor could inherit from the
other. The deceased was supposed to have acknowledged a person of
unknown decent and his kin not through himself but through another. The
right of the acknowledged kinsman is subject to bequest to the extent of the
bequetable third, but he has no right of that of an actual kinsman, say his
father.
If the one being acknowledged would be his son or daughter, this falls
under the rules on percentage or paternity.
E. Universal Legatees and Al-Islam
In default of the foregoing, the universal legates and the bai-tul-mal
succeed over the property of the decedent. A universal legatee is a person in

whose favour a decedent has made a general advice his whole property in
the absence of any legal heir. Under the law, a person can only make will
not beyond a third of his estate. The universal legatee is therefore entitled to
the extent of one-third (1/3) of the estate of the decedent. This is supported
by the Shafii view. In his default, the entire estate is put into the Bai-tul-mal
as unclaimed properties of all Muslims.
Under the strict Shafii view, the bai-tul-mal is properly organizes and
administered in accordance with Islamic law. Under the Hanafi School, a
person may take a will of his entire estate in the absence of legal heirs
because the limitation under the law is intended to protect the legal heirs. In
their default such limitation is not necessary.

CHAPTER IV: Impediments or Disqualifications to Inheritance

(Mawani-ul-irth)
There are three impediments or grounds for disqualifications of
inheritance:
1. Slavery (Riq)
2. Murder/Homicide (Qatl)
3. Difference of Religion (Ikhtilafud-din)

The reason for the first (slavery) is obvious. The fact that the slave is
the property of his master, the latter has no legal rights to inherit. The
discussion of this disqualification is academic since slavery has been
outlawed or abolished in all legal systems. In Islam, the abolition of slavery
worked through a peaceful and systematic not by radical or violent means.
With respect to the Second, there is some varying opinion among the
Sunni Schools of Law. One view maintains that all killing, whether intentional
or unintentional or by accident, are grounds for disqualification.
Under the conservative Shafii school, all killings whether committed in
self-defence or by an order or punishment work as impediment on the person
committing it with respect to the deceased. Ibn Hanbal maintained that
commission of murder or homicide which would work as disqualification
should be one with either punishable by fine or by capital punishment, as in
case of punishment by retaliation (Qisas) or by blood money (diyat). The

opinion of the Hanbal School appears to be a better view. Iman Malik adds
that in order for murder or homicide to work as an impediment. It must be
premediated or intent to kill is present irrespective of whether the same is
carried out directly or indirectly, i.e., as in case where a person served as a
perjured witness so as to cause the death of another.
Cases where the intent to kill is considered absent or insufficient are:
a. Act committed by an infant or insane person which causes the
death of the other.
b. A person kills another in a justifiable war, or inflicting punishment
under orders of competent authority.
c. A person dug well into which other falls, or placed a stone on a road;
and
d. A person orders the circumcision of his son and a result thereof; the
son dies.
According to Abu Hanifa, a parent who chastises his child and as a
result thereof, the child dies, the father is liable for forfeiture of his right for
he is responsible to payment of fine (diyat). But if a teacher punishes his
pupil with the permission of pupils father, he does not incur any liability
according to the majority view.
Difference of religion is a ground for disqualification because under
Islamic Law, Muslims cannot inherit from non-muslims (kafr) and neither the
latter could inherit from the former or vice-versa. In law therefore, Muslims
are cuff-off from succeeding the non-muslims and vice-versa.
By analogy (Qiyas), Apostates (Murtad) are likewise disqualified from
inheriting from his Muslim relation. The act of apostasy cuts him-off from his
Muslim relations. This view is agreed by all Sunni Schools. In Islamic law, the
property left by apostate will be turned over to the Baitul-mal for
safekeeping.
If the apostate embraces back Islam, he will get back his property; and
if he is an heir, he will be entitled to inherit from his Muslim relations even if
his conversion took place after the death of the decent but before the
division of the estate. This is minority view supposed by jurists Adjuri and Ibn
Hambal. This view appears to be a better view since it will encourage nonmuslims in joining the folds of Islam. The difference of Dar (Country) or
nationality does not disqualify a person from inheriting.

The foregoing grounds dont work out as disqualifying their own heir to
succeed in their behalf under the rule of exclusion (Hujub), if they are
likewise qualified in their own right as heirs. The disqualification under the
three (3) foregoing grounds, work as cases of total exclusion to the right to
inherit.
Chapter V. Rules of Exclusion (Hujub)
There are two (2) forms of Exclusion, namely:
1. Total Exclusion (Hujub German)
2. Partial Exclusion (Hujub Nukshan)
The doctrine of exclusion under which some residuaries are preferred over
others is known as al-Jabari rule. They ryle considers:
a. First to the order,
b. Next to the degree, and
c. To the strength of blood ties.

MISSING PART---- pp 8-12

1. (a)state the three modes of acquiring ownership under Islamic law and
define each briefly
(b)what are the two modes of succession in Islamic law? And define each
briefly.
(a) The three modes of acquiring ownership under Islamic law are:
1.) Possession (ihraj)

2.) Transfer (naql)

3.) succession (khalf)
Possession means acquisition, control or taking of a thing without a known
owner through hunting, fishing, treasure hunting or occupation of an
abandoned thing (res nullius).
Transfer means acquisition of a thing, its fruits or interests or the principal
thereof through sale, barter or exchange, gift (hibah), and waqf
(endowment).
Succession is a mode of acquisition of a thing through inheritance (mirath)
or wills/bequest (wasiyah). Ownership by succession is called Milkayyah bi
khilafa succession is either;
1) Optional or Iktyariyyah , in the form of a will or bequest (wasiya); or
2) Compulsory or Ajbariyyah, by means of the rules of inheritance under
Islamic law.
(Art.100 of P.D.1038 states the different modes of Succession).
2. Define or explain briefly the following terms:
a.) Al-Mirath-is the generic term for the science of inheritance. The
inheritance of a person includes all properties of any kind, movable or
immovable, whether ancestral or acquired either by onerous or gratuitous
title, as well as all transmissible rights and obligations at the time of his
death and those that across there to before partition.
b.) Al-Wasiyah-is a declaration whereby a person is permitted with the
formalities prescribed by by law,to control the disposition after his death or
not more than one-third of his estate, if thre are heirs or distant kindred.
c.) Wasiya bil waqf (Testamentary waqf)- when the endowment for Islamic
purposes is to take effect after the death of the donor, it is called the
testamentary waqf (waqf-bil-wasiya) and partakes of the nature of a
testamentary disposition, in this case as in the case of the will,the founder
(waqif) can only make one-third of his property waqf if he has heirs, but if he
has none, he can make a waqf of his entire property.

d.) Ilmol-Faraid- it is specifically defined as the science of fixing shares &

obligations in inheritance. Faraid is derivative from Farah (ordained, fixed,
determined). It means appointment, precision, explanation, and is
established by precise and conclusive evidence. This branch of law is termed
as Faraid because the share of legal heirs in the property of the decedent
have been expressly ordained or appointed by the Holy Quran, and are
based on the established or precise and conclusively evidence.
e.) dhawil-arham- blood relatives who are neither sharers nor residuaries .
The general rule is that in the absence of sharers and residuaries, the distant
kindred succeed as third class of heirs.
3.State the five charges or liens to the estate of the dececent (al murath)
in the order of their preference and explain each briefly.
The five charges or liens to the estate are as follows:
a.) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or pledges
on specific properties used as guarantee or collateral for a loan or debt.
b.) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/ expenses which
consists of the fees paid or incurred in the washing, shrauding and
internment of his remains. This also include the expenses of his dependents
pending settlement of estate.
c.) All kinds of debts (aduyon al mutlaqah). These are debts incurred prior to
the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness malik and shafii do not make any
distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-al-maut)(death
illness). Debts incurred in good health take preference. Long term debts
became due at the time of death of the decedent.

Dower (mahar) of a wife falls under this category.

d.) Rights of legatees (al-haqul-el-musshalahu). These are legacies and

bequest chargeable to the extent of one-third or the gross estate.
e.) Rights of heirs (al-haqul-waratha). This pertains to the rights of the heirs
over the remainder or the estate after deducting the foregoing charges
before distribution.
4.) give your comments with respect to the order of the preference of
claims under Article 135 of the Muslim Code in relation to the Islamic law.
Under Article 135 of Muslim Code the estate of a decedent shall be applied
to claims & charges in the following order:
a.) unpaid taxes;
b.) reasonable funeral expenses
c.) The expenses for probate, administration and other judicial expenses;
d.) The debts of the decedent;
e.) The legacies to the extent or the disposable one-third
f.) The distribution of shares among heirs; and
g.) Unpaid dower
-under Islamic Law the estate of a decedent shall be applied to claims and
charges in the following order;
a.) Reasonable funeral expenses
b.) The debts of the decedents; in compliance with the prophetic tradition;
The soul of true believer is clung to his debts until it is paid on his behalf
According to Abu Hanifa, his debt, like the unpaid charity which he failed to
give during his lifetime should not be deducted from his estate except if he
made a will (wasiya) to pay it out of his hereditary estate.
According to jambur,that on the contrary it has to be paid even without his
will.
According to AL-shafii, it has to be paid ahead of the debts owed to various
individuals.
According to Maliki, It should be paid after the debts owed to various
individuals are paid.
According to Ibn-hambal, it should be paid simultaneously with the debts
owed to various individuals.

c.) The legacies to the extent or the disposable one-third.

d.) the distribution of shares among heirs.
The code of MPL mentions unpaid taxes expenses for probate ,administration
,and other judicial expenses; and unpaid dower is the order of preference
claims.
The code was drafted for use in a country like the Philippines which is not
entirely muslims, hence the omissions here.
5.) Give the distinction between wasiya and waqf and their similarities if
any,.
a. The distinction between wasiyah (will/bequest) and waqf (charitable
endowment) are:
1. A wasiyah is a voluntary disposition or transfer of a property or his
profits by a person known as MUSI (LEGATOR) in favor of a legatee (MUSA
LAHU) to extent of a one-third of his estate and to take effect after the death
of the testator/legator (MUSI). The person to inforce and execute the wasiya
is called the Wasi (Executor)
2. A waqf is the transfer of the principal of valuable property to the
ownership of ALLAH. Generally for religious. Pious or charitable purposes for
the benefit or certain individuals or groups of person. It takes effect either
during the lifetime or the dedicator (waqif) of after his death.
If the waqf is created with the condition that it shall take effect after
the death of waqif, it is called waqf-bil-wasiya (testamentary waqf) and
partakes the nature of a testamentary disposition or wasiya and is subject to
the same conditions of the disposable one third limitation and ratification by
the heirs it in excess thereof. (See Art.106, Muslim code).
3. A wasiya and waqf-bil-wasiya are similar, except that in wasiya the
purpose is for any secular or legal purposes while in waqf, charitable
purposes is always presumed.
Both require an executor or administrator, known as Wasi in Wasiya and
Mutawalli (manager) in waqf.
Both are also revocable during the lifetime of the testator (MUSI) or
dedicator (waqil). Subject to the disposable one-third limit of the estate or

ratification by the co-heirs. The heirs in both could be made beneficiary

(legatee/musa lahu in wasiya or mauquf alaih/alyhim in waqf).
Both do not require particular formalities. But unlike wasiya, only the
income of the thing is expendable in favor of the beneficiary in waqf .
Acceptance of the will/bequest by the legatee is essential in wasiya but
not an essential condition or requisite in waqf.
In waqf bil-wasiya, acceptance of the will/bequest devolves upon the
Mutawalli or beneficiary institution in behalf of the intended beneficiaries
b. The difference between wasiya (will) and hibah (gift/donation) are as
follows:
1. Wasiya takes effect after the death of the testator while in hibah, it always
take effect during the lifetime of the donor (giver) and donee (recipient).
2. In hibah, there must be total renunciation by the donor of all his title and
rights to the property given with the immediate effect and without
consideration by one person in favor of another.
3. The donor (giver) in hibah can only revoke the gift before delivery of
possession while the testator in wasiya can revoke the will anytime during
his lifetime. But once there is acceptance of the gift, It can not revoked by
the donor.

1. (a)state the three modes of acquiring ownership under Islamic law and
define each briefly
(b)what are the two modes of succession in Islamic law? And define each
briefly.
(a) The three modes of acquiring ownership under Islamic law are:
1.) Possession (ihraj)
2.) Transfer (naql)
3.) succession (khalf)

Possession means acquisition, control or taking of a thing without a known

owner through hunting, fishing, treasure hunting or occupation of an
abandoned thing (res nullius).
Transfer means acquisition of a thing, its fruits or interests or the principal
thereof through sale, barter or exchange, gift (hibah), and waqf
(endowment).
Succession is a mode of acquisition of a thing through inheritance (mirath)
or wills/bequest (wasiyah). Ownership by succession is called Milkayyah bi
khilafa succession is either;
3) Optional or Iktyariyyah , in the form of a will or bequest (wasiya); or
4) Compulsory or Ajbariyyah, by means of the rules of inheritance under
Islamic law.
(Art.100 of P.D.1038 states the different modes of Succession).
2. Define or explain briefly the following terms:
a.) Al-Mirath-is the generic term for the science of inheritance. The
inheritance of a person includes all properties of any kind, movable or
immovable, whether ancestral or acquired either by onerous or gratuitous
title, as well as all transmissible rights and obligations at the time of his
death and those that across there to before partition.
b.) Al-Wasiyah-is a declaration whereby a person is permitted with the
formalities prescribed by by law,to control the disposition after his death or
not more than one-third of his estate, if thre are heirs or distant kindred.
c.) Wasiya bil waqf (Testamentary waqf)- when the endowment for Islamic
purposes is to take effect after the death of the donor, it is called the
testamentary waqf (waqf-bil-wasiya) and partakes of the nature of a
testamentary disposition, in this case as in the case of the will,the founder
(waqif) can only make one-third of his property waqf if he has heirs, but if he
has none, he can make a waqf of his entire property.

d.) Ilmol-Faraid- it is specifically defined as the science of fixing shares &

obligations in inheritance. Faraid is derivative from Farah (ordained, fixed,
determined). It means appointment, precision, explanation, and is
established by precise and conclusive evidence. This branch of law is termed
as Faraid because the share of legal heirs in the property of the decedent

have been expressly ordained or appointed by the Holy Quran, and are
based on the established or precise and conclusively evidence.
e.) dhawil-arham- blood relatives who are neither sharers nor residuaries .
The general rule is that in the absence of sharers and residuaries, the distant
kindred succeed as third class of heirs.
3.State the five charges or liens to the estate of the dececent (al murath)
in the order of their preference and explain each briefly.
The five charges or liens to the estate are as follows:
a.) Specific rights (Al huquq il ainiyah). These are rights attached to the
property or estate. They include Zakat (Legal alms), mortgages or pledges
on specific properties used as guarantee or collateral for a loan or debt.
b.) Rights of decedents (over) his estate (Huquq el maith). These are the
only rights of a deceased person over his estate, i.e. funeral/ expenses which
consists of the fees paid or incurred in the washing, shrauding and
internment of his remains. This also include the expenses of his dependents
pending settlement of estate.
c.) All kinds of debts (aduyon al mutlaqah). These are debts incurred prior to
the death of the decedent, they are of two classes:
a.) debts incurred in good health (aduyon mursalah),
b.) debts incurred in illness malik and shafii do not make any
distinction between the two debts.
However, in case of debts incurred in serious illness, (marad-al-maut)(death
illness). Debts incurred in good health take preference. Long term debts
became due at the time of death of the decedent.

Dower (mahar) of a wife falls under this category.

d.) Rights of legatees (al-haqul-el-musshalahu). These are legacies and
bequest chargeable to the extent of one-third or the gross estate.
e.) Rights of heirs (al-haqul-waratha). This pertains to the rights of the heirs
over the remainder or the estate after deducting the foregoing charges
before distribution.

4.) give your comments with respect to the order of the preference of
claims under Article 135 of the Muslim Code in relation to the Islamic law.
Under Article 135 of Muslim Code the estate of a decedent shall be applied
to claims & charges in the following order:
h.) unpaid taxes;
i.) reasonable funeral expenses
j.) The expenses for probate, administration and other judicial expenses;
k.) The debts of the decedent;
l.) The legacies to the extent or the disposable one-third
m.) The distribution of shares among heirs; and
n.) Unpaid dower
-under Islamic Law the estate of a decedent shall be applied to claims and
charges in the following order;
a.) Reasonable funeral expenses
b.) The debts of the decedents; in compliance with the prophetic tradition;
The soul of true believer is clung to his debts until it is paid on his behalf
According to Abu Hanifa, his debt, like the unpaid charity which he failed to
give during his lifetime should not be deducted from his estate except if he
made a will (wasiya) to pay it out of his hereditary estate.
According to jambur,that on the contrary it has to be paid even without his
will.
According to AL-shafii, it has to be paid ahead of the debts owed to various
individuals.
According to Maliki, It should be paid after the debts owed to various
individuals are paid.
According to Ibn-hambal, it should be paid simultaneously with the debts
owed to various individuals.
c.) The legacies to the extent or the disposable one-third.
d.) the distribution of shares among heirs.
The code of MPL mentions unpaid taxes expenses for probate ,administration
,and other judicial expenses; and unpaid dower is the order of preference
claims.

The code was drafted for use in a country like the Philippines which is not
entirely muslims, hence the omissions here.
5.) Give the distinction between wasiya and waqf and their similarities if
any,.
a. The distinction between wasiyah (will/bequest) and waqf (charitable
endowment) are:
1. A wasiyah is a voluntary disposition or transfer of a property or his
profits by a person known as MUSI (LEGATOR) in favor of a legatee (MUSA
LAHU) to extent of a one-third of his estate and to take effect after the death
of the testator/legator (MUSI). The person to inforce and execute the wasiya
is called the Wasi (Executor)
2. A waqf is the transfer of the principal of valuable property to the
ownership of ALLAH. Generally for religious. Pious or charitable purposes for
the benefit or certain individuals or groups of person. It takes effect either
during the lifetime or the dedicator (waqif) of after his death.
If the waqf is created with the condition that it shall take effect after
the death of waqif, it is called waqf-bil-wasiya (testamentary waqf) and
partakes the nature of a testamentary disposition or wasiya and is subject to
the same conditions of the disposable one third limitation and ratification by
the heirs it in excess thereof. (See Art.106, Muslim code).
3. A wasiya and waqf-bil-wasiya are similar, except that in wasiya the
purpose is for any secular or legal purposes while in waqf, charitable
purposes is always presumed.
Both require an executor or administrator, known as Wasi in Wasiya and
Mutawalli (manager) in waqf.
Both are also revocable during the lifetime of the testator (MUSI) or
dedicator (waqil). Subject to the disposable one-third limit of the estate or
ratification by the co-heirs. The heirs in both could be made beneficiary
(legatee/musa lahu in wasiya or mauquf alaih/alyhim in waqf).
Both do not require particular formalities. But unlike wasiya, only the
income of the thing is expendable in favor of the beneficiary in waqf .
Acceptance of the will/bequest by the legatee is essential in wasiya but
not an essential condition or requisite in waqf.

In waqf bil-wasiya, acceptance of the will/bequest devolves upon the

Mutawalli or beneficiary institution in behalf of the intended beneficiaries
b. The difference between wasiya (will) and hibah (gift/donation) are as
follows:
1. Wasiya takes effect after the death of the testator while in hibah, it always
take effect during the lifetime of the donor (giver) and donee (recipient).
2. In hibah, there must be total renunciation by the donor of all his title and
rights to the property given with the immediate effect and without
consideration by one person in favor of another.
3. The donor (giver) in hibah can only revoke the gift before delivery of
possession while the testator in wasiya can revoke the will anytime during
his lifetime. But once there is acceptance of the gift, It can not revoked by
the donor.

24. What do you mean by the following doctrines?

(a) radd (doctrine of return)
(b) aul ( doctrine of increase)
(c) tasheh (doctrine of correction)
Illustrate each briefly.
X. the meaning of the following doctrine are as follows:
(a) Radd ( doctrine of return) is a principle of reversion in
inheritance of the residue that is left if after distributing the portions of the
shares, there is no surviving residuary heir by reversion of the remaining
residue to the lone sharer or to all sharers in proportion to their respective
portions or allotments in the inheritance. The husband or wife are not
entitled to reversion of the residue of the estate as long there are sharers or
distant kindred ( articles 130, muslim code).
An illustration of radd is the solution to them immediately preceding
problem involving the distribution of the estate of karim who died instestate.
Another illustrates are as follows:
(1) Surviving heirs
Mother

allotments
1/ 6

share/unit
1

RP = 6
6/ 2 = 3

Daughter

6/6 = 1;

1/ 2

6/2 = 3;

3
4

3x 2 = 6

6 -4 = 2 (residue)

The remaining residue of two (2) units will revert to the above heirs in
proportion to their shares. The formula is to look for the root of return (ROR)
which is 4 in this case.
ROR = 4
Distribution
Mothers
Daughter

- 1/ 4 (4 -3 =1)
- 3/ 4 ( as sharer and by return)

(2) Surviving heirs

Husband
Daughter
4 3 = 1;

allotments
1/ 4
1/ 2

share/unit
- 1
1
- 2 + 1 =3
------3
4
2+1 = 3 (share of daughter)

RP = 4
4 /4 = 1
4/ 2 = 2

With the presence of the daughter as shares, she will receive the remaining
residue of one(1) unit or a total of three (3) units in her favor, to the
exclusion of the husband who is not entitled to received the residue of
reversion or RADD.
(3) Surviving heirs
allotments
share/unit
RP = 4
Wife
1/ 4
1
Full sister
1/ 2
2 +1 = 4
4/ 4
= 1;
4/ 2 = 2;
43 =1
The rule is the same as in the above solution.
N.B (The additional examples are optional answers).
b. Aul (doctrine of increases) is the principle used when it happens that are
several sharers co-existing , their fractional shares when added up amount to
a great more than the root of the problem. This is done by making a
proportional abatement in all the shares by increasing the common
denominator for the purpose of yielding the requisite number of shares, the
total of each not exceeding unity.
The procedure in aul is to increase the denominator to make it equal to
the sum of the numerators. The artificial inflation of the denominators is
called aul (doctrine of increases ) this is illustrated as follows :

(1) Surviving heirs

Husband
Two (2) full sister

allotments
1/ 2
2/ 3

RP=
6
6/ 2 = 3;

6/ 3

share/unit
3
4
--7
= 2 x 2 = 4 + 3 =7

In the above solution , the total portion of each heir when added up is
greater than the root of the problem , hence the use of AUL.
ROA
=
Husband =
Full sister =

(2) Surviving heirs

Husband
2 full sisters
Mother

3/ 6
4/ 6
------------7/ 6

AUL husband
full sister

allotments
1/ 2
2/ 3
1/ 6

share/unit
3
4
1
--------8
6/ 3 = 2 x 2 = 4; 6/ 6 = 1

6/ 2 = 3;
Root of AUL

7
3/ 7
4/ 7
----------------7/ 7
RP = 6

Husband
2 full sisters
Mother

= 3/ 8
= 4/ 8
= 1/ 8
---------8/ 8 (equal to unity of whole integer)
(3) Surviving heirs
allotments
share/unit
Wife
1/ 4
3
2 full sisters
2/ 3
8
Uterine sister
1/6
2
Q: 30. What do you mean by Mafqud (missing persons)? Please
explain. State the general rule in the settlement of the estate of a missing
person. Give the views or opinions of the sunni schools on the matter.
A:Mafqud is a person regarding whom it is not known whether he is
dead or alive. According to the Mukit, if a Muslim is captured by an enemy
and it is not known whether he is dead or alive, although he may be known
as captive in Darul-Harb (abode of war or hostile territory), said person is to
be designated as Mafqud. In the multeka, it is further required that the place

where the missing person is abiding must also unknown. In the Raddul
Muktar, even if the place is known but there is no knowledge whether he is
dead or alive, said person is also designated as Mafqud.
The general rule regarding the settlement of the estate of a missing
person is that, if he failed to return, the judge upon application may presume
such person dead if he failed to return after one (1) year. The declaration
must be one(1) year after the inquiry from the time he was reported missing.
Mother --- 1/6

(2/15) 2/15

RP = 12
12/4=3;
12/3= 4 x 2= 8; 12/6=2
12/6=2;
3+ 8 +2+ 2= 15
ROA

= 15

Wife
2 Full Sister
Uterine Sister
Mother

- 3/15
- 8/15
- 2/15
- 2/15
--------------15/15

C.Tasheh (doctrine of correction) is a technique in the computation of shares

of the heirs in inheritance. It is used when the shares of some group of heir
co-existing with other could not be proportionately distributed among them
into the integral unit on the basis of their apportioned shares in order to
conform with the appointed portion in the Holy Quran.
This is illustrated as follows:
(1)SurvivingHeirs

Allotments

Share/Unit

Residue

Full Sister

Daughter

1/2

Wife

1/8

1
------8

RP

= 8

8/2

= 4;

8/8 =1;4+1 =5;

8 - 5 = 3 (remaining residue)
The above is called masala adila, meaning good problem because
there is no need to apply the doctrine of correction (Tasheh).
There is need tasheh (correction in the next problem)
(2) Surviving Heirs

Allotments

Share/unit

Daughter

1/2

12

Mother

1/6

Wife

1/8

4 Full Sister

Residue

5
-------24

RP

=24

24 / 2= 12; 24 / 6 = 4; 24 / 8 = 3
12 + 4 + 3 = 19 ; 24 - 19 =5 (residue)
There is a need for correction (tasheh) because the remaining residue
of 5 units cannot be proportionately divided among the four (4) sisters
without violating the unity of the integer (whole number). The next step is to
look for the root of correction. This is arrived at by multiplying the original
root of the problem (24) by a 4 ( 24 x 4 = 96
Root of Correction = 96
96 / 2 = 48 ; 96 / 6 = 16 ; 96 / 8 = 12
48 + 16 + 12 = 76 ; 96 - 76 = 20 (residue)
Distribution (correction)
Daughter

- 48

Mother

- 16

20/4= 5 (Share of one sister)

Wife

- 12

5 x 4=20( Share of four sister)

4 Full Sister - 20
--------

Total

= 9

Q: 25. what do you understand by the following principles:

(a) double causes of inheritance (taadtud il sabab)
(b) transmission (munasakah) or vested interest
Please explain and illustrated.
A: (a) double causes of inheritance (taadtud il-sabab) arises.. when for
example, the surviving husband is an heir to the property of the deceased
wife by reason of marriage in w/c case he take 1/2 of the wife estate. if he is
also related to the wife, as first cousin, there being no other heir, he takes
the residue or the whole estate as the case maybe.
(b) double inheritance or vested interests, arises when a deceased
leaves a certain numbers of heirs, and one of them, before distribution takes
places, happens to die leaving heirs, these heirs take both under deceased, if
they are heirs to both, or under one of them if they are only heirs to one.
for example: the surviving heirs are the son, daughter and the brother
on the father's side, the son andd daughter take on the proportion of two to
one (2:1) while the brothers on father's side is excluded, but if before
distribution, the son dies, leaving a sister (meaning the daughter of the
decedent) and his paternal uncle (brothers father's side),
the son's share of 2/3 is divided equally between his sister and uncle, the
sister getting 1/2 or 2/3 or 1/3 and the remaining 1/3 goes to the uncle.
Q: 26. what is the shortest period of pregnancy and the longest period as
reported by imams hanifa and shafi'i. what is normal period of pregnancy as
agreed by Muslim jurists for purposes of fixing the share of a posthumous
child in inheritance. would this be a problem in the light of the advances in
the science of medicine? please explain briefly.
according to Abu hanifa, the shortest period of pregnancy (mudat-al-hamel)
is six (6) months and the longest is two (2) years. imam shafie reported that
the longest period of pregnancy is nine (9) months. this is agreed among
Muslim jurist.
the better veiw however, in determining the normal period of
pregnancy before the child is born, is to considere varying climatic condition
and geogaphic locations. this will no longer be a problem today in veiw of the

advance in the science of medicine, through the use of "ultra sound" and
electronic gadgets, physicians are able to determine and calculate the length
of pregnancy and even the way of the child in the womb of the mother.
Q: 27. give the requisites or conditions (surut) under which w posthumuos
child (al-hamel is entitled to share in inheritance, state the rule provided for
under Muslim code.
A: The essential conditions (surut) of the right of an unborn child to be
entitled to share in inheritance are:
1. The child is born completely alive at the time of birth no matter how
breif it is.
2. The child is conceived during the subsistenance of marriage if paternity
is at issue.
Article 97 of Muslim code (P.D.1083) provides that a child conceived at
the time of the death of the decedent shall be considered an heir
provided it be born later in accordance with article 10; its corresponding
share shall be reserved before the estate is distributed.
Q: 28. State the three (3) categories of a posthumous child (child in the
womb) and illustrate each briefly.
The child in the womb fall under three (3) categories,
namely:
1. Those who totally exlude others;
2. Those who partially exlude others; and
3. Those who participate with them.
(1) If the posthumous child will be a total exluder, say a son against other
surviving heirs like brothers or sisters of the deseased or paternal uncles or
aunts, the whole estate must be reserved to comply with such event of birth.
When only some of the heirs are exlude as when there are grandmother's share of one-sixth (1/6) shall be paid to her and the remainder of
the estate shall reserved.
(2) When the posthumous child will only be a partialy exluder, say when the
survivor is a husband or wife besides him, the smaller of the sharers to w/c

the party may be entitled is to be paid to him/her and the remainder w/c is
bigger is to be preserved.
(3)If the posthumous child only participants with other heirs and he is neither
a total or partial exluder, say when the deceased has left sons and daughters
and pregnant widow, reserve the equivalent share of one son.
Q: 29. State the rule in succession in case of death in a common calamity
or accedent. what is the agreed rule among the sunni schools of law?
A:
Article 12. simultaneous death-- if as between two or more persons
who are called to succeed each other, there is a doubt as to which of them
died first, whoever alleges the death of prior to other shall prove the same;
in the absence such proof, it is presumed that they died at the same time
and there shall be no transmission of rights from one to the other. however,
the successional rights of their respective heirs shall not be affected.
The sunni schools agreed that if persons who are entitled to mutually
inherit from each other die in a common calamity or accident, such as
drowning, or when their respective deaths cannot be ascertained as to who
died first, there is no mutual right of succession to their estate develop to
their respective as the case maybe.
Q: 40. ameer married his first cousin tonina during their marriage, the
spouses agreed to equally contribute capital to engage in the barter trade
business. they were able to raise the capital of P100,000.00 in their first year
of business operation, they made a net profit of P50,000,00. unfortunately
torina got sick while ameer was on a business trip to sabah, malysia. she
later died before ameer was able to returned home. upon learning of the
incident, ameer return home without being able to purchase merchandise in
sabah. ameer spent P10,000.00 for his trip. meantime, tonina left an estate
valued at P50,000.00. tonina is survived by her husband ameer, his father
Panglina talib, full brother Rakim and full sister Jamella. how would you settle
the estate and business interest of tonina? explain and justify your answer.
A:
100,000.00 CAPITAL
+ 50,000.00 NET PROFIT
150,000.00

- 10,000.00
140,000.00 Expenses for the trip
--conjugal estate

140,000.00/2
= 70,000.00 for each spouse
70,000.00 Toninas share to the conjugal property or estate
+ 50,000.00 toninas estate
120,000.00
SURVIVING HEIRS:

Husband

father

ANSWER

1/2

SHARES

fullbrother full sister

EXCLUDED

Root
2-1=1

2/2 =1 ;

1+1

=2
NET ESTATE: 120,000/2 = 60,000.00
DISTRIBUTION:
HUSBAND: 60,000x1 = 60,000.00
FATHER:

60,000x1 = 60,000.00
120,000.00

Q: 41. X deid intestate, he is survived by a son A, daughter B, mother Y,

father C, and uterine brother D. he left an estate worth P180,000.00 before X
died, his son A renounced the Islamic faith and had himself baptized to the
Muslim faith. father C contends that AA being a minor follows the religion of
this father.
(a) Distribute the estate of X. please explain and justify your answer.

(b) Suppose that pending the settlement of the estate of X, son A

repented and returned to the his share in the inheritance? explain and justify
you answer.
A) SURVIVING HEIR:
Son(A)
daughter(B)
son(AA) Root
desqualified
6-5 = 1

1/2

mother(Y)

father(C)

1/6

1/6
3

uterine brother(D)

son's

Excluded

1
6/2 = 3

; 6/6 = 1

; 6/6 = 1

3+1+1 = 5

NET ESTATE: 180,000.00/6 = 30,000,00

DISTRIBUTION:
Daughter: 30,000x3 = 90,000.00
Mother:

30,000x1 = 30,000.00

Father:

30,000x1 = 30,000.00

Son's son: 30,000x1 = 30,000.00

180,000.00
* SON(A) is disqualified to inherit because he renounces Islam.
(B)yes, Son A is still entitled to his share in theinheritance because he
repented and returnedto the folds of Islam while the settlement of the
estate of X is still pending. According to Iman Ahmad B. Hambal, if a nonmuslim heir of a Muslim accepts the faith of Islam before the division of
the estate, he shall be an heir. I believe that the impediment for
disqualification has been removed and so therefore he can be considered
an heir.
Q: 42. BQ Jamil is married to Salima. while Jamil was in a state of deathillness (marad-ul-maut), he devorced his wife Salima. Jamil later died of his
illness while Salima was still observing her idda. he left an estate worth
P259,000.00 and debts in the amount of P19,000.00. settle the estate of

Jamil. suppose that Jamil died after the expiration of the idda of wife salima,
will she still be entitled to inherit? Explain and justify you answer.
VIII. The wife Salimawho was devorced by husband Jamil while in state of
death-illness (marad-ul-maut) is entitled to inherit from the estate left by the
husband who died while she was observing her idda. under the law (article
26 Muslim code). there is no mutual right of succession between spouses
after the expirtion of the wife's iddah (or waiting period). the exception is in
cases where the wife is devorced by the husband while in a conditon of
death-illness, the wife shall still have the right to inherit from the estate of
the husband even after the expiration of her idda. the reason is that the
husband who devorces his wife while in an estate of death-illness is under
suspect of depriving the wife of any share in the former's estate by devorcing
her.
The statement of the estate of Jamil is as follows:
Gross Estate ---

P259,000.00

Lesse debts ---

19,000.00

Net Disposable Estate --- P240,000.00

As the lone surviving heir, wife Salima is entitled to 1/4 of net
disposable estate of P240,000.00
The root of the problem is 4. The share of the wife is derived by
dividing the value of the net disposable estate by 4, the root of the problem.
P240,000.00/4

P60,000.00

The share of the wife is P60,000.00 or the equivalent of 1/4 of the

value of the estate left by Jamil.
P240,000.00 - P60,000.00 = P180,000.00
The residue or remainder of the estate in the amount of P180,000.00
shall revert to the wife as the sole heir under the doctrine of return (radd),
there being no other residuary heir, sharers or distant kindred in consonace
with Article 130 of the muslim code.
The of the husband Jamil even after the expiration of the idda of the
wife Salima will not deprive her of her share in the estate of Jamil. on the
other, the husband Jamil is not entitled to inherit from the estate of the wife

Salima even if SAlima died before the expiration of her idda, there being no
mutual right of succession in so far as the husband Jamil is concerned who
divorced his wife while in a condition of death-illness.
The husband should be penalized by denying him the right to inherit
from the wife for devorcing her while in a state of death-illness, The act of
the husband in devorcing the wife while under the condition of death-illness
is discouraged. his act of devorcing his wife is deemed invalid because a
condition of death-illness is one of the circumtances which restrict or limit
the capacity to act by a person under the law (Article 9, Muslim Code).
Q: 43. X died intestate, she is survived by her husband, full brother, one
uterine sister and a consanguine brother. she left an estate valued at
P150,000.00 and an obligation of about P10,000.00. settle the estate of the
decedent. Explain and justify your answer.
A:
Value of Estate____ P150,000.00
Less Obligation____ - 10,000.00
Net Estate________ P140,000.00

Solution:
(Survivors): Husband

FB

US

Answer

1/2

1/6

Share

CB
E

RP = 6
-4/2 residue

2 + 1=4

6/2 = 3 ; 6/6 = 1 ; 3+1 = 4 ;

NDE : P140,000.00/6 = P23,333.00 value of share per unit

Distribution:
Husband:

3x23,333.33 = 69,999.99

Full brother:

2x23,333.33 = 46,666.66

Uterine Sister: 1x23,333.33 = 23,333.33

139,999.98
Total = P140,000.00

Question 31:

A. Give the sources of the law of inheritance in the order of their degree of poof
(Dalil).
B. Please state the specific numbers of the verses and chapter (sura) of the
source of inheritance under the holy Quran.

Answer:

A. The basic sources of the science of the law of the inheritance are :
Holy Quran
Hadith
Ijma-al-ummah (consensus of the community, usages)
B. The basic principles of inheritance under the Holy Quran are found in the
chapter 4 (Suratul-Nisa), specifically verses 7,8,9,11,12 and 176.

46
Question 33:

A. State the rules on fixing the share of a hermaphrodite (el khunta musakal) in
inheritance. Please give and illustrate.
B. State the rule on waiver of shares (takaruj) in inheritance. Please give and
illustrate.

Answers:

A. In fixing the share of a hermaphrodite (el khunta el musakal) in inheritance,

the general rule is to ascertain the preponderance as to whether de is a male
or a female. If there is difficulty of ascertaining his real sex, divide the
property of the decedent by first considering him as a male and latter as
female. Whichever is the least share will be the share given to the
hermaphrodite. If his sex holds the distribution, otherwise, reserve him bigger
share. The exceptions to this rule are heirs who fall under the category of a
mothers child (uterine brother or sister) or a master inheriting from his freed
slave. This also includes the grandmother, mother, husband and wife because
their shares are fixed and the difference of sex of the co-heir who is a
hermaphrodite does not affect their allotted fixed shares.

47
Illustrations:

1. Problem:

(Survivors): Wife

Answer:

Mother

1/8

2SD

1/6

remaining
residue

Shares:

Correction:

12

7 + (17)

16 =

24 7 = 17 residue

Root of correction:

24 x 24 = 96
96 28 = 68

34 / 2 = 17

remaining
residue
= 24

28 (17) + (17) +34 = 96

Root of problem:

68 / 2 = 34

Khunta(Son)

2. Problem:

(Survivors): Wife

Answer:

1/8

Shares:

Root of problem:

Mother

2SD

1/6

Khunta(Daughter)

1/6

1/2

12

= 23

24 23 = 1 residue

NOTE:
The remainder of one (1) will be returned back to the sharers except the
wife by applying the doctrine of return.

Question 31:

C. Give the sources of the law of inheritance in the order of their degree of poof
(Dalil).
D. Please state the specific numbers of the verses and chapter (sura) of the
source of inheritance under the holy Quran.

Answer:

C. The basic sources of the science of the law of the inheritance are :
Holy Quran
Hadith
Ijma-al-ummah (consensus of the community, usages)
D. The basic principles of inheritance under the Holy Quran are found in the
chapter 4 (Suratul-Nisa), specifically verses 7,8,9,11,12 and 176.

46
Question 33:

C. State the rules on fixing the share of a hermaphrodite (el khunta musakal) in
inheritance. Please give and illustrate.
D. State the rule on waiver of shares (takaruj) in inheritance. Please give and
illustrate.

Answers:

B. In fixing the share of a hermaphrodite (el khunta el musakal) in inheritance,

the general rule is to ascertain the preponderance as to whether de is a male
or a female. If there is difficulty of ascertaining his real sex, divide the
property of the decedent by first considering him as a male and latter as
female. Whichever is the least share will be the share given to the
hermaphrodite. If his sex holds the distribution, otherwise, reserve him bigger
share. The exceptions to this rule are heirs who fall under the category of a
mothers child (uterine brother or sister) or a master inheriting from his freed
slave. This also includes the grandmother, mother, husband and wife because
their shares are fixed and the difference of sex of the co-heir who is a
hermaphrodite does not affect their allotted fixed shares.

47
Illustrations:

1. Problem:

(Survivors): Wife

Answer:

Mother

1/8

2SD

1/6

remaining

Khunta(Son)

remaining

residue
Shares:

Correction:

12

residue

7 + (17)

16 =

= 24

28 (17) + (17) +34 = 96

Root of problem:

24 7 = 17 residue

Root of correction:

24 x 24 = 96
96 28 = 68
68 / 2 = 34
34 / 2 = 17

2. Problem:

(Survivors): Wife

Answer:

1/8

Shares:

Mother

2SD

1/6

Khunta(Daughter)

1/6

1/2

12

= 23

Root of problem:

24 23 = 1 residue

NOTE:
The remainder of one (1) will be returned back to the sharers except the
wife by applying the doctrine of return.

Q: 40. ameer married his first cousin tonina during their marriage, the
spouses agreed to equally contribute capital to engage in the barter trade
business. they were able to raise the capital of P100,000.00 in their first year
of business operation, they made a net profit of P50,000,00. unfortunately
torina got sick while ameer was on a business trip to sabah, malysia. she
later died before ameer was able to returned home. upon learning of the
incident, ameer return home without being able to purchase merchandise in
sabah. ameer spent P10,000.00 for his trip. meantime, tonina left an estate
valued at P50,000.00. tonina is survived by her husband ameer, his father
Panglina talib, full brother Rakim and full sister Jamella. how would you settle
the estate and business interest of tonina? explain and justify your answer.
A:
100,000.00 CAPITAL
+ 50,000.00 NET PROFIT
150,000.00
- 10,000.00
140,000.00 Expenses for the trip
--conjugal estate

140,000.00/2

= 70,000.00 for each spouse

70,000.00 Toninas share to the conjugal property or estate
+ 50,000.00 toninas estate
120,000.00
SURVIVING HEIRS:

Husband

father

ANSWER

1/2

SHARES

fullbrother full sister

EXCLUDED

Root
2-1=1

2/2 =1 ;

1+1

=2
NET ESTATE: 120,000/2 = 60,000.00
DISTRIBUTION:
HUSBAND: 60,000x1 = 60,000.00
FATHER:

60,000x1 = 60,000.00
120,000.00

Q: 41. X deid intestate, he is survived by a son A, daughter B, mother Y,

father C, and uterine brother D. he left an estate worth P180,000.00 before X
died, his son A renounced the Islamic faith and had himself baptized to the
Muslim faith. father C contends that AA being a minor follows the religion of
this father.
(a) Distribute the estate of X. please explain and justify your answer.
(b) Suppose that pending the settlement of the estate of X, son A
repented and returned to the his share in the inheritance? explain and justify
you answer.
A) SURVIVING HEIR:
Son(A)
daughter(B)
son(AA) Root
desqualified
6-5 = 1

1/2

mother(Y)
1/6

father(C)
1/6

uterine brother(D)
Excluded

son's
R

1
6/2 = 3

; 6/6 = 1

; 6/6 = 1

3+1+1 = 5

NET ESTATE: 180,000.00/6 = 30,000,00

DISTRIBUTION:
Daughter: 30,000x3 = 90,000.00
Mother:

30,000x1 = 30,000.00

Father:

30,000x1 = 30,000.00

Son's son: 30,000x1 = 30,000.00

180,000.00
* SON(A) is disqualified to inherit because he renounces Islam.
(B)yes, Son A is still entitled to his share in theinheritance because he
repented and returnedto the folds of Islam while the settlement of the
estate of X is still pending. According to Iman Ahmad B. Hambal, if a nonmuslim heir of a Muslim accepts the faith of Islam before the division of
the estate, he shall be an heir. I believe that the impediment for
disqualification has been removed and so therefore he can be considered
an heir.
Q: 42. BQ Jamil is married to Salima. while Jamil was in a state of deathillness (marad-ul-maut), he devorced his wife Salima. Jamil later died of his
illness while Salima was still observing her idda. he left an estate worth
P259,000.00 and debts in the amount of P19,000.00. settle the estate of
Jamil. suppose that Jamil died after the expiration of the idda of wife salima,
will she still be entitled to inherit? Explain and justify you answer.
VIII. The wife Salima who was devorced by husband Jamil while in state of
death-illness (marad-ul-maut) is entitled to inherit from the estate left by the
husband who died while she was observing her idda. under the law (article
96 Muslim code). there is no mutual right of succession between spouses
after the expirtion of the wife's iddah (or waiting period). the exception is in
cases where the wife is devorced by the husband while in a conditon of
death-illness, the wife shall still have the right to inherit from the estate of
the husband even after the expiration of her idda. the reason is that the

husband who devorces his wife while in an estate of death-illness is under

suspect of depriving the wife of any share in the former's estate by devorcing
her.
The statement of the estate of Jamil is as follows:
Gross Estate ---

P259,000.00

Lesse debts ---

19,000.00

Net Disposable Estate --- P240,000.00

As the lone surviving heir, wife Salima is entitled to 1/4 of net
disposable estate of P240,000.00
The root of the problem is 4. The share of the wife is derived by
dividing the value of the net disposable estate by 4, the root of the problem.
P240,000.00/4

P60,000.00

The share of the wife is P60,000.00 or the equivalent of 1/4 of the

value of the estate left by Jamil.
P240,000.00 - P60,000.00 = P180,000.00
The residue or remainder of the estate in the amount of P180,000.00
shall revert to the wife as the sole heir under the doctrine of return (radd),
there being no other residuary heir, sharers or distant kindred in consonace
with Article 130 of the muslim code.
The of the husband Jamil even after the expiration of the idda of the
wife Salima will not deprive her of her share in the estate of Jamil. on the
other, the husband Jamil is not entitled to inherit from the estate of the wife
Salima even if SAlima died before the expiration of her idda, there being no
mutual right of succession in so far as the husband Jamil is concerned who
divorced his wife while in a condition of death-illness.
The husband should be penalized by denying him the right to inherit
from the wife for devorcing her while in a state of death-illness, The act of
the husband in devorcing the wife while under the condition of death-illness
is discouraged. his act of devorcing his wife is deemed invalid because a
condition of death-illness is one of the circumtances which restrict or limit
the capacity to act by a person under the law (Article 9, Muslim Code).

Q: 43. X died intestate, she is survived by her husband, full brother, one
uterine sister and a consanguine brother. she left an estate valued at
P150,000.00 and an obligation of about P10,000.00. settle the estate of the
decedent. Explain and justify your answer.
A:
Value of Estate____ P150,000.00
Less Obligation____ - 10,000.00
Net Estate________ P140,000.00

Solution:
(Survivors): Husband

FB

US

Answer

1/2

1/6

Share

CB

RP = 6

-4/2 residue

2 + 1=4

6/2 = 3 ; 6/6 = 1 ; 3+1 = 4 ;

NDE : P140,000.00/6 = P23,333.00 value of share per unit

Distribution:
Husband:

3x23,333.33 = 69,999.99

Full brother:

2x23,333.33 = 46,666.66

Uterine Sister: 1x23,333.33 = 23,333.33

139,999.98
Total = P140,000.00

Q: 44. Y died intestate. At the time of his death, his wife was in the family way. She
was pregnant for about six (6) months. Y is survived by his wife and posthumous
child, father, mother, full brother and full sister. He left an estate worth P240,000.00.

Distribute the estate of the decedent in the following manner: firt, let us assume that
the posthumous child is a son. Secondly, assume that the child in the womb is a
daughter. In both cases assume that the child in the womb is born alive. Thirdly,
suppose that sex of the posthumous child could not be ascertained, how would you
settle the estate? Explain and justify your answer.

a.) SURVIVING HEIR: WIFE POSTHUMOUS CHILD FATHER MOTHER

BROTHER & SISTER ROOT
ANSWER
E
SHARES

1/8

24
3
24/8 = 3;
3+13+4+4= 24

NET ESTATE
Distribution:

13

1/6

FULL

1/6

4
4
24/6 = 4; 24/6 = 4

240,000.00/4 = 10,000 value of share per unit

Wife =
10,000 x 3 = 30,000.00
p. child (son) = 10,000 x 13 = 130,000.00
Father
= 10,000 x 4 = 40,000.00
MOTHER
= 10,000 X 4 = 40,000.00
TOTAL = 240,000.00

b.) SURVIVING HEIR:

MOTHER
ANSWER

WIFE
ROOT
1/8

POSTHUMOUS CHILD

1/6+ R

FATHER
1/6

24
SHARES

3
24/8 = 3
3+12+5+4= 24

NET ESTATE

12
24/2 = 12

4 +1 = 5
24/6= 4+1=5

240,000.00/4 = 10,000

Distribution:
Wife
= 10,000 x 3 = 30,000.00
p. child (son) = 10,000 x 12 = 120,000.00
Father
= 10,000 x 5 = 50,000.00
MOTHER
= 10,000 X 4 = 40,000.00
TOTAL = 240,000.00

4
24/6=4

Q: 45. B is survived by a wife, mother, two (2) sons, daughter and a khunta daughter.
He left an estate valued at P 25,000.00. distribute the estate of the decedent by
applying the rule on hermaphrodites. Suppose that in the same problem the other
heir is a khunta son. What will be your answer? Now in the same probem, suppose
that the sex of the khunta heir could not be determined. What will be your answer?
Please explain and justify your answer.

a.) SURVIVING HEIR: WIFE

KHUNTA (D)
ROOT
ANSWER
24X6

MOTHER

1/8

SHARES
17 new roots: 144

1/6

3
18

ESTATE

4
24
144/6= 24

25,000.00

DEBTS

1,000.00

NET ESTATE

SONS

24,000.00

NET ESTATE = 24,000.00/144 = 166.66\

Distribution:
Wife

= 166.66x18= 2,499.99

Mother

= 166.66x24= 3,999.84

Son

= 166.66x34= 5,666.44

Son

= 166.66x34= 5,666.44

Daughter = 166.66x17= 2,833.22

Khunta (D)= 166.66x17= 2,833.22

DAUGHTER

- 42
144/8 = 18
18+24+68+17+17 = 144

17
68

17
17

17

TOTAL:

24,000.00

b.) If the other heir is khunta son

SURVIVING HEIR:
KHUNTA (D)

WIFE
ROOT

MOTHER

1/8

1/6

SON
R

KHUNTA (S)
R

17

17

24X6
17

144
18

24

34

34

17

NET ESTATE: 24,000.00/144 = 166.66

Distribution:

Wife

= 166.66x18= 2,499.99

Mother

= 166.66x24= 3,999.84

Son

= 166.66x34= 5,666.44

Khunta Son = 166.66x34= 5,666.44

Daughter

= 166.66x17= 2,833.22

Khunta (D) = 166.66x17= 2,833.22

TOTAL:

24,000.00

c.) If the sex of the khunta heir could not be determined, divide the property of the
decedent by first considering him as a male and latter as a female. Whichever will
be the least share wil be the share given to the hermaphrodite.

Q: 46. Y is a disavowed child (walad-ul-lian). But before his father died, the latter
retracted his vow and recognized Y as his son. His father is survived by a wife, mother
of Y, father and full brother. The father left an estate worth P60,000.00. In the instant
problem, can Y inherent from his father? How about his mother? Distribute the estate
of the decedent. Explain and justify your answer.

Mother who is a disavowed child (walad-ul-lian) can inherent from his natural
father who retracted his vow and recognized him as his son before the father died.
Strictly speaking, the wife or mother of moner is disqualified to inherent from the
decedent (father of moner) because their marriage was dissolved though divorce by
Lian and a decree of perpetual divorce was granted by the court.
However the subsequent retraction of the father and recognition of Moner as
the formers son has the effect of retraction of the charge of adultery by the father
against his wife (mother of moner).
In this case, it is submitted that the wife shall have the right to succeed over
the estate of the deceased former husband (or father of moner) by analogy from
succession between divorced persons under Article 96 of the muslim code (P.D. 1083)
where a husband while in condition of death illness (marad-al-maut) divorces his wife
the will even after expiration of her idda (waiting period) is entitled to inherent from
the husband but not her husband or vice-versa.
The rule barring the right of mutual succession in succession between divorced
persons as against public policy shall equally apply. The father even if he
subsequently retracted his vow (lian) shall be disallowed to inherent from the wife
who latter died for having hastily charge the wife (mother of Moner) of adultery
without sufficient evidence under Islamic Law resulting into divorce by lian between
the former spouses.
In this case, the heirs who are entitled to inherent from the estate of the
decedent (father of Moner) are: the acknowledge son Moner, the wife (mother of
Moner), the father of the decedent, the full brother is excluded by the son Moner.
The estate in the amount of P60,000.00 left by the decedent (father of Monber)
assuming there are no debts shall be distribute as follows:
SURVIVING HEIRS: FATHER

WIFE

SON

BROTHER

ALLOTMENTS

1/6

SHARE/UNITS

1/8
4

residue
3=(7)

excluded

+17=24

(x)

ROOT OF THE PROBLEM = 24

24/8 = 4

24/8= 3

(4+3) = 7

P60,000.00/24 = P2,500.00

Distribution:
Father

4x2, 500.00 =P10, 000.00

Wife

3x2, 500.00 =

Son

17x2, 500.00 = 42,500.00

TOTAL

7,500.00

P60,000.00

Q: 44. Y died intestate. At the time of his death, his wife was in the family way. She
was pregnant for about six (6) months. Y is survived by his wife and posthumous
child, father, mother, full brother and full sister. He left an estate worth P240,000.00.
Distribute the estate of the decedent in the following manner: firt, let us assume that
the posthumous child is a son. Secondly, assume that the child in the womb is a
daughter. In both cases assume that the child in the womb is born alive. Thirdly,
suppose that sex of the posthumous child could not be ascertained, how would you
settle the estate? Explain and justify your answer.

c.) SURVIVING HEIR: WIFE POSTHUMOUS CHILD FATHER MOTHER

BROTHER & SISTER ROOT
ANSWER
E
SHARES

1/8

24
3
24/8 = 3;
3+13+4+4= 24

NET ESTATE
Distribution:

13

1/6

1/6

4
4
24/6 = 4; 24/6 = 4

240,000.00/4 = 10,000 value of share per unit

FULL

Wife =
10,000 x 3 = 30,000.00
p. child (son) = 10,000 x 13 = 130,000.00
Father
= 10,000 x 4 = 40,000.00
MOTHER
= 10,000 X 4 = 40,000.00
TOTAL = 240,000.00
d.) SURVIVING HEIR:
MOTHER
ANSWER

WIFE
ROOT
1/8

POSTHUMOUS CHILD

1/6+ R

FATHER
1/6

24
SHARES

3
24/8 = 3
3+12+5+4= 24

NET ESTATE

12
24/2 = 12

4 +1 = 5
24/6= 4+1=5

4
24/6=4

240,000.00/4 = 10,000

Distribution:
Wife
= 10,000 x 3 = 30,000.00
p. child (son) = 10,000 x 12 = 120,000.00
Father
= 10,000 x 5 = 50,000.00
MOTHER
= 10,000 X 4 = 40,000.00
TOTAL = 240,000.00

Q: 45. B is survived by a wife, mother, two (2) sons, daughter and a khunta daughter.
He left an estate valued at P 25,000.00. distribute the estate of the decedent by
applying the rule on hermaphrodites. Suppose that in the same problem the other
heir is a khunta son. What will be your answer? Now in the same probem, suppose
that the sex of the khunta heir could not be determined. What will be your answer?
Please explain and justify your answer.

a.) SURVIVING HEIR: WIFE

KHUNTA (D)
ROOT
ANSWER
24X6
SHARES
17 new roots: 144

1/8
3

MOTHER
1/6

SONS

DAUGHTER

R
4

R
17

R
17

18

24

68

17

17

- 42
144/8 = 18
18+24+68+17+17 = 144

ESTATE

144/6= 24

25,000.00

DEBTS

1,000.00

NET ESTATE

24,000.00

NET ESTATE = 24,000.00/144 = 166.66\

Distribution:
Wife

= 166.66x18= 2,499.99

Mother

= 166.66x24= 3,999.84

Son

= 166.66x34= 5,666.44

Son

= 166.66x34= 5,666.44

Daughter = 166.66x17= 2,833.22

Khunta (D)= 166.66x17= 2,833.22
TOTAL:

24,000.00

d.) If the other heir is khunta son

SURVIVING HEIR:
KHUNTA (D)

WIFE
ROOT

MOTHER

1/8

1/6

SON
R

KHUNTA (S)
R

17

17

24X6
17

144
18

24

34

34

17

NET ESTATE: 24,000.00/144 = 166.66

Distribution:

Wife

= 166.66x18= 2,499.99

Mother

= 166.66x24= 3,999.84

Son

= 166.66x34= 5,666.44

Khunta Son = 166.66x34= 5,666.44

Daughter

= 166.66x17= 2,833.22

Khunta (D) = 166.66x17= 2,833.22

TOTAL:

24,000.00

e.) If the sex of the khunta heir could not be determined, divide the property of the
decedent by first considering him as a male and latter as a female. Whichever will
be the least share wil be the share given to the hermaphrodite.

Q: 46. Y is a disavowed child (walad-ul-lian). But before his father died, the latter
retracted his vow and recognized Y as his son. His father is survived by a wife, mother
of Y, father and full brother. The father left an estate worth P60,000.00. In the instant
problem, can Y inherent from his father? How about his mother? Distribute the estate
of the decedent. Explain and justify your answer.

Mother who is a disavowed child (walad-ul-lian) can inherent from his natural
father who retracted his vow and recognized him as his son before the father died.

Strictly speaking, the wife or mother of moner is disqualified to inherent from the
decedent (father of moner) because their marriage was dissolved though divorce by
Lian and a decree of perpetual divorce was granted by the court.
However the subsequent retraction of the father and recognition of Moner as
the formers son has the effect of retraction of the charge of adultery by the father
against his wife (mother of moner).
In this case, it is submitted that the wife shall have the right to succeed over
the estate of the deceased former husband (or father of moner) by analogy from
succession between divorced persons under Article 96 of the muslim code (P.D. 1083)
where a husband while in condition of death illness (marad-al-maut) divorces his wife
the will even after expiration of her idda (waiting period) is entitled to inherent from
the husband but not her husband or vice-versa.
The rule barring the right of mutual succession in succession between divorced
persons as against public policy shall equally apply. The father even if he
subsequently retracted his vow (lian) shall be disallowed to inherent from the wife
who latter died for having hastily charge the wife (mother of Moner) of adultery
without sufficient evidence under Islamic Law resulting into divorce by lian between
the former spouses.
In this case, the heirs who are entitled to inherent from the estate of the
decedent (father of Moner) are: the acknowledge son Moner, the wife (mother of
Moner), the father of the decedent, the full brother is excluded by the son Moner.
The estate in the amount of P60,000.00 left by the decedent (father of Monber)
assuming there are no debts shall be distribute as follows:
SURVIVING HEIRS: FATHER

WIFE

ALLOTMENTS

1/8

SHARE/UNITS

1/6
:

residue
3=(7)

ROOT OF THE PROBLEM = 24

24/8 = 4

24/8= 3

(4+3) = 7

P60,000.00/24 = P2,500.00

Distribution:
Father
Wife

4x2, 500.00 =P10, 000.00

3x2, 500.00 =

7,500.00

SON

BROTHER
excluded

+17=24

(x)

Son

17x2, 500.00 = 42,500.00

TOTAL

P60,000.00

MISSING PART ----- pp 67-70