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Intestacy

An-Nisa, ayat 11: Allah instructs you concerning your children: for the male, what is equal to
the share of two females. But if there are only daughters, two or more, for them is two thirds
of one's estate. And if there is only one, for her is half. And for one's parents, to each one of
them is a sixth of his estate if he left children. But if he had no children and the parents
alone inherit from him, then for his mother is one third. And if he had brothers or sisters,
for his mother is a sixth, after any bequest he may have made or debt. Your parents or your
children - you know not which of them are nearest to you in benefit. These shares are an
obligation imposed by Allah. Indeed, Allah is ever Knowing and Wise.
An-Nisa, ayat 12: And for you is half of what your wives leave if they have no child. But if
they have a child, for you is one fourth of what they leave, after any bequest they may have
made or debt. And for the wives is one fourth if you leave no child. But if you leave a child,
then for them is an eighth of what you leave, after any bequest you may have made or debt.
And if a man or woman leaves neither ascendants nor descendants but has a brother or a
sister, then for each one of them is a sixth. But if they are more than two, they share a third,
after any bequest which was made or debt, as long as there is no detriment caused. This is an
ordinance from Allah, and Allah is Knowing and Forbearing.

to be divided according to the number of wives,


Wife/Wives and no relations
to the Bait-ul-mal
1/8 to be divided according to the number of wives,
Wife/Wives and child/children
the rest to children accordingly
Husband and no relations to husband and the rest to Bait-ul-mal
Husband and child/children to husband, the rest to children accordingly
Father and mother with other
1/6 to each
relations
Father and mother only 2/3 to father, 1/3 to mother
Mother with full brothers 1/6 to mother, the rest to brothers equally
1/6 to mother, 2/3 to sisters equally and the rest to
Mother with full sisters
Bait-ul-mal
Brother or/and sister and no other
1/6 to each and the rest to Bait-ul-mal
relations
More than 2 brothers or/and sisters
1/3 to each and the rest to Bait-ul-mal
and no other relations
One son and no other relations All to son
One daughter to daughter and the rest to Bait-ul-mal
Daughters 2/3 to daughters equally and rest to Bait-ul-mal
Equally between all sons and daughters, but so that
Sons and daughters the share of each son is double that of each
daughter.
The estate of a deceased person is to be divided through faraid after the payment of debts
and legacies. However, before the estate of the deceased is divided through faraid, the spouse
of a deceased may make a claim under harta sepencarian (Sec. 122) for jointly acquired
matrimonial property.
- Haji Ramah v Alpha: The widow was entitled to of the value of the land which she
had helped to cultivate as compensation for work done in addition to her other
share in the estate.
- Bunga v Ila & Ors: The widow had been married to the deceased for about 36 years
and after his death, she claimed a share in the land, including compensation for some
land left by her husband, as harta sepencarian. Held: Her application was granted as
the court found that she was entitled to a share in the land and compensation for the
land as harta sepencarian.
Once the matrimonial property has been divided accordingly, the portion received by the
deceased will be included in his or her estate, which will then be divided through faraid.

Testacy
The property of a Muslim is automatically distributed under faraid upon his death, however,
as the testator, he may dispose 1/3 of his property to non-quranic heirs.
The portion of property that can be bequeathed by a testator under Islamic law is only 1/3 of
the total assets available at the time of death, after the subtraction of the amount used for
legacies and settlement of debts (if any).
- Hadith: The Prophet SAW said to Saad bin Abi Waqqas that he may give only 1/3 of
his property to charity as it is better to leave his offspring wealthy than to leave them
asking for the help of others.

- Shaik Abdul Latif v Shaik Elias Bux: A testator has the power to dispose by will no more
than 1/3 of the property belonging to him at the time of death. The residue must
descend in fixed portions to his quranic heirs through faraid.
- The will in this case was invalid where it purported to give more than 1/3 of
the property to the adopted son and deprived the other heirs of their right to
inheritance.
A testator cannot make a will in favour of his quranic heirs (spouse, children, and parents).
- Quranic heirs are entitled to the testators property in accordance with faraid.
A testator can only make a will disposing 1/3 of his property in favour of his non-quranic heirs.
- E.g: Adopted children, foster parents, waqaf (charity), issues of testators children,
non-Muslim family members, close friends
Nominees of funds:
- Re Ismail Rentah: The deceased who was a member of the Malay Servants
Cooperative Credit Society Ltd of Seremban had nominated his daughter to receive his
share or interest in the Society in the event of his death. He died leaving a number of
beneficiaries. Held: The nomination did not confer a right on the nominee to take
beneficially.

- Re Man Minhat, deceased: The assured had taken out an insurance policy for
RM40,000 on his life. The assured by an instrument named his wife as the beneficiary.
On the death of the assured, his widow took out letter of administration to his estate.
The issue was whether the money payable under the policy belonged to the widow
beneficially or formed part of the assureds estate to be distributed among his heirs.
Held: Where the policy of assurance was effected by the assured on his own life and
expressed to be for the benefit of his wife, the moneys payable under the policy did
not form part of the deceaseds estate.

- Where the deceased had expressly disposed part of his property in favour of an heir
(e.g: by making such person the beneficiary), the funds will be deemed the property
of such person and not form part of the deceaseds estate to be divided through faraid.

- Fatwa from National Council of Muslim Religious Affairs: Nominees of the funds (EPF,
banks, insurance companies etc) are in the position of persons who carry out the will
of the deceased or the testator. Such persons can receive the money of the deceased
from the sources stated for it to then be divided among the person who are entitled
through faraid.

- Sec. 167, Insurance Act 1996:


- 1) A nominee shall receive the policy moneys payable on the death of a Muslim
policy owner as an executor and not solely as a beneficiary and any payment
to the nominee shall form part of the estate of the deceased policy owner and
be subject to his debts and the licensed insurer shall be discharged in respect
of the policy moneys paid.
- 2) On receipt of the policy moneys, the nominee shall distribute the policy
moneys in accordance with Islamic law.