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Estate Planning

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Table of content No. Content 1.0 2.0 2.1 . 2.2 2.3 2.4 2.5 2.6 2.7 3.0 3.1 3.2 3.3 3.4 3.5 4.0 4.1 4.2 Reason for writing will Characteristics of will Revocation of will What to consider when writing will Additional information Case study Islamic will The important of Islamic will The will ( al- wasiyya ) The testator ( al-mussi ) The legatee Executor of the will (al-wassi almuktar) Faraid Faraid definition Basis of faraid 21 21 21 5 6 7 8 10 11 13 14 15 16 17 17 18 19 19 20 20 Estate planning Will important terms Pages 3 4 45

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4.3 4.4 4.5 4.6 4.7

Inheritance rights Faraid mean Faraid division The principles and liabilities in inheritance distribution Faraid distribution References

22 23 23 25 26 27 28 36 37 - 38

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1.0 Estate Planning


Estate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. Guardians are often designated for minor children and beneficiaries in incapacity. To make it simple, estate planning is the way we manage our major financial resources and properties to dispose of it to our own advantage. This kind of planning, if started early in life, can help provide financial security for a family throughout several generations. Estate planning is divided into two essential parts 1. Build your estate through savings, investments, & insurance 2. Transfer your estate as you wish at death Estate planning involves the will, trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gift, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. Many people take this matter lightly as they forget their familys condition after he/she dies. To them, they see the idea of writing a will only important to when he or she is at an old age. In short, estate planning is the way we manage our major financial resources and properties to dispose of it to own advantage. Main goals of estate planning: 1. Live life fully. 2. Pass on your property to others according to your desires. 3. Provide for guardianship of children who are still minors.

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Estate Planning 4. Decrease or eliminate taxes.

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2.0 Will
Definition - A Will is a document where a person states his intentions as to how his estate is to be administered and distributed after his death and who is to administer it. According to the Will Act 1959 - A Will is a document where a person states his intentions as to how his estate is to be administered and distributed after his death and who is to administer it.

2.1 Important terms


Administrators Those appointed to administer an estate where there is no Will or no Executor. A general term for both executors and administrators is personal representative. Beneficiary - An individual or organisation named in the Will, who benefits from your Will Codicil A document making minor changes to your Will. It must be signed and witnessed in the same way as your Will Chattels - Tangible assets other than immovable property Estate Everything that belongs to you, and owed to you, at the time of your death Executor - Someone who will carry out the instructions in your Will. Their duties include getting the grant of probate, collection of assets, calculate and pay income tax, debts and finally to distribute your assets according to your Will. The executor holds legal title to your assets during the probate process Grant of Probate a grant from the court confirming the appointment of the executor/s named in the Will, and that the Will has been proven and registered in court. Guardian - people you nominate to take care of any minor children, in case both you or your spouse die at the same time
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Immovable Property assets that cannot be moved physically, i.e. land and buildings Intestacy a person who dies without making a valid Will is said to die intestate Letters of Administration with Will Annexed where there is a Will, but where the executors appointed has either passed away, is unwilling or unable to act, or no executor was named at all, then letters of administration with Will annexed must be obtained. The procedure is very similar to obtaining letters of administration. Testator - the person making the Will. Trustee - a person or entity who holds property on behalf of others, usually for the beneficiaries Will - a document that simply states your last instructions. Sometimes also called Will and Testament

2.2 Reasons for writing Will


A Will is an important tool of estate planning as it encapsulates the Testators directions in relation to the administration and distribution of his/her estate. Furthermore, Writing a Will is a step towards ensuring that the persons you wish would benefit from your estate will be able to inherit from the same. A Will also helps in expediting the legal process involved in estate administration as no sureties/security deposits are required prior to the issuance of the grant of representation. It would also relieve the Beneficiaries of the Deceased from having to decide on who shall become the Administrator of the Deceased Testators estate upon the death of the Testator. At the same time, a Will enables a person to choose and appoint his/her own Executor and Trustee to carry out his/her wishes and protect his/her interest as well as to appoint the Guardian to his/her minor Beneficiaries. A Will provides an opportunity for the Testator to bestow
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and make allocations for any special needs of their loved ones such as providing for heirs who are financially insecure or heirs with physical disability. A Will also enables a person to bestow gifts to non-family members/non heirs as well as various charities and religious organizations that the Testator may choose. In summary, having a Will enables a person to plan smooth transfer of assets to his/her beneficiaries according to his/her wishes.

2.3 Characteristics of will


Normally include information on the appointment of an Executor who will execute the Will, the beneficiary or beneficiaries to the Will and allocation of assets to the named beneficiaries. Under the Distribution Act 1959, the requirements of a valid will are as follows. A Will would normally include information on the appointment of an Executor who will execute the Will, the beneficiary or beneficiaries to the Will and allocation of assets to the named beneficiaries. Apart from that, the appointment of guardian for minor beneficiaries, revocation of earlier Wills, donation of organs, direction for burials and other special instructions can also be included in a Will. The basic requirements of a valid Will stated in the Wills Act 1959 are generally as follows: a) It must be in writing; b) The testator must sign the Will at the end of the document; c) There must be at least two or more witnesses present at the same time to witness and to attest to the signature of the testator.

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However the witnesses who are attesting the testators signature must not be beneficiaries to the Will, otherwise the gift will fail d) The testator must be of sound of mind and not under any undue influence during the execution of his or her Will. e) The testator making a Will must not be under the age of majority.

2.4 Revocation of Will


A Will can be revoked by the following acts/circumstances: a) Marriage A Will is revoked by a marriage or re-marriage (unless the Will is made in contemplation of a particular marriage). Divorce or separation does not revoke a Will. b) Destruction A Will is revoked when the Testator destroys the Will physically with the intention of revoking it. Accidental or malicious destruction by a third party does not constitute revocation. c) A later Will A subsequent Will would automatically revoke an earlier Will, whether or not a revocation clause is included in the later Will. The Testator can also revoke a Will by making a written statement of his intention, signed in the presence of 2 witnesses.

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Estate Planning d) Conversion to Islam

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A Will is revoked when a Non-Muslim person converts to Islam because the distribution of his/her estate will automatically follow the Faraid distribution.

2.5 What To Consider When Writing a Will


1. Who to choose as your Executor Most people will choose their spouse or adult children as their executor and this is quite common. A spouse or an adult child who is quite knowledgeable is a good choice. It is recommended to have a backup executor in case your first executor is unable to act as your executor. An adult child can be a backup executor to your spouse. If you and your spouse are fairly advanced in age, then selecting your children as executor will be a better option. It is be quite strenuous for an aged person to travel about going to the various banks, government departments etc and in such s situation, selecting a younger person is a better idea. Make sure your executor is not based overseas since he or she would have to travel back to Malaysia to sort out your estate. It would be
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costly and impractical for your executor to do so. This could cause delays to your beneficiary who needs to use the money. Your beneficiary can be your executor as well. However, in some families, some members dont get along well with one another. If you feel there might be potential for conflict, then it will be wise to choose someone who is neutral to be executor so that there will be less friction when it comes to distributing your assets. An executor must be trustworthy as they will handle your financial affairs. Some have been known to abscond with the testators money. If you dont have confidence in anyone, then you can select a trust corporation to be your executor. The trust corporation will charge a small percentage of the total value of your estate as an administration fee. It is better to pay a small fee than to have someone run off with a significant portion of your money.

2. How to choose your Guardian If you have children below age 18, you must nominate a least one, preferable two persons as guardians for your minor children. The reason to appoint guardians is in the event both you and your spouse die together; there is someone who will bring up your children. Guardians are usually close relatives or friends who love your children. They should have the time and energy to look after your children. Preferable, do not select a grandparent as guardian since it is likely they may pass on first. Whoever you select, get their agreement first before you name them in your Will since it is a heavy responsibility.

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Estate Planning 3. How should you divide your assets?

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There is no right or wrong way to divide your assets. It is up to you. However, by law, your spouse should receive a portion of your asset. To a certain extent, you also have to give some assets to your sons and unmarried daughter. However, should you choose not to give any assets to your spouse and children, and then you need to state a good reason in your Will. For instance, if your spouse is well off or you have provided for them through other means i.e. property are already in their name, then you can opt not to give them anything. You will still need to state the reason why you choose not to leave them anything. Without a good strong reason, this set of beneficiaries can easily contest your Will. You can itemize and give each asset to an individual or to be shared between several people. This is one way to divide your assets. For example, you give your house to your spouse, a car to your son and a piece of land to be shared between your son and your spouse.

4. When should your beneficiary receive your assets? Although you have decided to give your assets to your beneficiary, you can determine when they are to receive the assets. For instance, you want your children to receive a significant portion of your assets, however you are concern that they are too young at age 21 to receive all that that money. You feel they are not ready to handle such a large amount of money at that age and may squander it away.

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In such situations, you can state in your Will, when they are to receive their inheritance. You can choose to delay it to a later age, for example at age 25 or any age you specify. You can also state for them to receive a part of their share at a younger age and the balance once they reach a later age. 5. Practical considerations ` Dividing up a property to too many people may cause problems.

Although you may want to be fair, having too many person means it will be almost impossible for them to sell or rent out the property. Even though the other beneficiaries agree to sell the property, a single person who opposes the sale can choose not to sign the papers. This means the others have no choice but to keep the property.

2.6 Additional Information


Amanah Raya Berhad Amanah Raya Berhad or AmanahRaya as we are known is Malaysia's premier trustee company. Since its establishment as the Department of

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Public Trustee and Official Administrator on 1 May 1921, AmanahRaya have served the nation for over 86 years and is the market leader in providing trust, legacy management and will-services. The Department of Public Trustee & Official Administrator was corporatised on 29 May 1995 and on 1 August 1995 commenced its operations as Amanah Raya Berhad. As trustee and administrator, AmanahRaya's services encompass the legal, financial and administrative duties in preparing trust documents and wills, acting as trustees of trust funds, acting as administrators and executor of deceased estates as well as monitoring the transaction of unit trust funds under our care. AmanahRaya is also involved in the investment of assets held in its Common Fund which pays out competitive dividend to its Beneficiaries. AmanahRaya is wholly owned by the Government of Malaysia with 99.99% of its shares held by the Minister of Finance (Incorporated) and 0.01% of its shares held by the Federal Commissioner of Lands. Currently, AmanahRaya has 19 branches nationwide with its headquarters situated at Wisma AmanahRaya, No. 2, Jalan Ampang, 50508 Kuala Lumpur. AmanahRaya assist the public in Estate Planning and Management ensures that the interests of the heirs are always safeguarded, guaranteed and preserved in a professional manner. AmanahRaya, as the leading trust corporation in the country, is always ready to help you solve your problems.

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Estate Planning As-Salihin Trustee Berhad

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As-Salihin Trustee Berhad is a trustee company that incorporated under the Companies Act 1965 and registered under the Trust Companies Act 1949, as Salihin is a Trust Company established to meet the crying need of the ordinary Muslim to preserve, protect and distribute his hardearned assets for the benefit of his loved ones once he departs for the hereafter. As-Salihin Trustee Berhad provides professional property management services of Muslims such as Professional Wasiat Writing, the appointment of an executor, Administration of Intestate Estate, Guardianship, and others.

Rockwills Trustee Berhad The Rockwills International Group is an estate planning and advisory group. It consists of five principal companies in Malaysia namely Rockwills Corporation Sdn. Bhd., Rockwills Business Solutions Sdn. Bhd., Rockwills Trustee Berhad, Rockwills Wealth Planner Sdn. Bhd. and Rockwills Advisory Services Sdn. Bhd and its principal subsidiary in Singapore, Rockwills International Pte Ltd which is the holding company for the Singapore Group of companies, namely Rockwills Corporation Pte. Ltd., Rockwills Corporate Services Pte. Ltd., Rockwills Trustee Ltd. and Rockwills Institute Pte Ltd. Rockwills are also affiliated with as-Salihin Trustee Berhad, an Islamic estate planning company in Malaysia. Rockwills Trustee Berhad (RWT) was incorporated on 8 October 2005 and received the Trustee License on 24 January 2006 from the Companies Commission of Malaysia. Currently, RWT has more than 20 inhouse Legal Advisers providing legal services in estate planning and trusts. Rockwills Trustee undertake all types of trustee businesses allowed under the Trust Companies Act 1949, ranging from estate administration to private trust services.
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The Different between Amanah Raya Berhad and private trustee company. There is a lot of difference between Amanah Raya Berhad (ARB) and Private Trustee Company. The main difference is the writing style which for ARB the writing style must followed the standard of Amanah Raya itself different with private trustee company where the writing style is accordance with the testator. Next is place of listening to the will which for ARB the venue is at amanah raya office which means the heirs need to walk in into amanah raya office in hearing to the will. Compared to private trustee company where the place of listening to the will is at their own homes and this will make them feel comfortable to hearing to the will. Furthermore, there is a high charge of estate management fees for ARB which is 4% for the first RM25, 000 and 3% for the next RM250, 000. For private trustee company, the charges is low which only 2% for first RM1 million and 0.5% for the next amount. In addition, the services provided also plays a huge different between this two trustee body which for ARB the services is slow and usually take a long time for the settlement different with private trustee company where their services more professional and fast for the settlement. As a conclusion, private trustee company provides better services compared to the ARB with low charges of estate management fees.

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2.7 Case study


In 1986, Mrs. Yee Sow Thoo ('the deceased') has made a will appointing his son ('the appellant') to be the executor and trustee of his will. After that, the deceased made a nomination ('designation') on Form EPF-4 under the Regulations Pekerja1969 Provident Fund (EPF Regulations), named his daughter to receive the amount standing to his credit in the Employees Provident Fund ('EPF'). The deceased died in 1987. In 1991, the appellant has been granted probate of the will of the High Court.

Appellant then took action in the High Court by way of originating summons for a declaration that the EPF nomination for the benefit of the deceased daughter shall be null and void and that the will should be given advance. It is argued that the disposition of the deceased under regulation 9 EPF Regulations, which is a form of disposal will deceased's estate, did not comply with Wills Act 1959 ('Wills Act') in this case.

In response, the respondent argues that counsel Wills Act does not apply in this case and therefore cannot invalidate the EPF nomination was made in the prescribed form under regulation 9 EPF Regulations. Judge dismissed the application the appellant. The appellant has appealed. Important issue in this appeal is whether a nomination under the EPF Rules is a will document which must comply with the provisions of the Wills Act 1959.

It was held, to dismiss the appeal:

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(1) Nomination has several features of will. However, there are great differences between the paper and disposal in the form of will. Form of will must comply with the Wills Act, but the disposal may have some character of will without paper contains a form of will (see p. 478D and 481A-B). (2) A designation is a statutory designation made under the operation of the Employees Provident Fund Act 1951 ("EPF Act") and the Regulations. Section 20 of the EPF Act empowers the Minister of Finance to make regulations to provide for nomination by a member of the EPF of those to whom any amount standing to his credit in the EPF at the time of his death shall be paid after his death. Based on this section, the EPF Regulations in force and power to make a nomination by the members in the EPF contributions are provided under regulation 9. Nomination to be valid must be in writing in the prescribed form (Form EPF-4) to be signed by the nominee in whom the signature should be attested by witnesses. It is not disputed that the nomination in this case has complied with the provisions set out before, and therefore it is valid (see p. 481B-D)

(3) The reason that the disposition of the deceased under the EPF Rules is invalid because it is inconsistent with the Wills Act does not have any merit, as the opinion of the court on the main issues that the nomination of the deceased non-will document and that it has complied with the provisions of regulation 9 EPF Regulations

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3.0 Islamic Will.


This is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. This is to create awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be 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. 2. 3. 4. Payment of funeral expenses Payment of his/her debts Execution his/her will Distribution of the remaining estate amongst the heirs according to

Shariah The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testators 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).
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Technically speaking the term "testatee" is perhaps a more accurate translation of al-musa lahu.

3.1 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)

3.2The Will (AL-wasiyya)


There are 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.
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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 zakh, 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.

3.3 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. 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:

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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 Sad 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): Allahs 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.

3.4 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 favor of any legal heir already entitled to a share is invalid under
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traditional Sunni Muslim law unless consented to by other legal heirs. An acknowledgement of debt in favor 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 legatees 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 legatees heirs who may accept or reject it.

3.5 Executor of the will (Al-wasi Al- mukhtar)

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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.

4.0 Faraid 4.1 Faraid Definition


Stipulates how the estate of a Muslim is to be dealt with and distributed after his or her death. For convenience, all references to the male gender
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include the female gender. The rules described here reflect the rules practised under the Shafie school of thought; some differences or variations may be adopted under the Hanafi, Maliki and Hambali schools.

4.2 Basis of Faraid


Faraid is based on:
i.

The Quran: "Allah enjoins you concerning your children: the male shall have the equal of the portion of two females; if there are more than two females, they shall have two-thirds of what he has left, and if there is one, she shall have the half; and as for his parents, each of them shall have the sixth of what he has left if he has a child: but if he has no child and only his two parents inherit from him, then his mother shall have the third; but if he has brothers, his mother shall have the sixth after the payment of any bequest he may have bequeathed or a debt. You know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing, All-Wise." (4:11)

ii.

Hadith: The Prophet Muhammad (peace be upon him) said: "Give the appointed portions to those entitled to them. Then whatever remains is for the nearest male." (Narrated by Bukhari).

iii.

Ijmak and Ijtihad of the companions of the Messenger of Allah, imams of mazhab and mujtahid of proven knowledge.

A substantial part of Faraid and the section governing the distribution of property among heirs are provided for in the Quran. Only a small part is determined on the basis of Hadith and Ijmak.

4.3 Inheritance Rights


Before Islam, especially during the time of ignorance of divine guidance ( Jahiliyah ), daughters, wives, mothers and other female beneficiaries were
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not given any right at all in inheritance distribution. Similarly, children who have not reached puberty were not given inheritance rights. Inheritance was only applicable to men who could defend their families and tribes from the enemys attack. Inheritance was only based on heredity (for adult men), agreement and foster children. After the descent of the almawarith verses, Islamic Inheritance Law introduced a reformation in inheritance law, where women are recognised by Islam by giving them the legal status of beneficiaries and their specific shares in the inheritance are determined. Of the 12 beneficiaries of ashab al-furud , 8 are female beneficiary and only 4 are male beneficiaries. Among the reformations introduced in the Islamic Inheritance Law include: 1) Inheritance rights of beneficiaries are based on the relationship of consanguinity (kinship), marriage contract, wala' and Islam. 2) Not to deny the rights to inheritance among male and female, big or small, all of whom are entitled to the inheritance left by the benefactor (the deceased). 3) Parents and children are not left out from receiving inheritance in any condition. Their portion of the inheritance might change if there are other beneficiaries. 4) Male and female siblings will not receive the inheritance if the parents of the deceased are still alive. The presence of siblings/relatives will reduce the mothers share from 1/3 to 1/6. 5) Where there are male and female beneficiaries in a single case, the male beneficiary will take two parts of the female beneficiars shares, or two parts for the male beneficiary and one part for the female beneficiary.

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4.4 Faraid Mean


Literally Faraid have many means. To Decide, To Halal, To Ensure and Obligate is some of them. In syara', Faraid refer to division of properties when a muslim passed away without leaving any will before his death. the properties will then be devided within heirs, following Islamic rules. Properties have to be clean from debts, funeral observances, zakat and will that allow by syara'. Properties that can be Faraid is: 1. Land 2. Building 3. jewelry 4. Insurance and cash 5. Livestock Before splitting the properties, have to ensure whose within heir can acquire the properties by Ashabul-Furud, whose Mahjud, before splitting the balance to those qualified to receive Asabah.

4.5 Faraid Division


1. Ashabul-Furud This group take fixed portion by syara' of 1/2, 1/3, 1/4, 2/3, 1/6 or 1/8. They are husband or wife, mother or mother of mother, father or father of father, daughter or daughter of son, full sister, consaguine sister and uterine brother or sister. 2. Asabah This group receive balance when all Ashabul-Furud got their portion. There are 3 types of asabah: (a) Asabah Binafsih (b) Asabah Bil Ghoir (c) Asabah Maal Ghoir.

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(a) Asabah Binafsih Division of propeties by finishing all the properties, or taking up all balance by male heir, with or without cause of present of other heir. They are 12 male heir in this group, father, father of father, son of son, full brother, consaguine brother, son of full brother, son of consguine brother, full brother of fahter, consanguine brother of father, son of full brother of father and son of consanguine brother of father. (b) Asabah Bil Ghoir Division of porperties by finishing all the properties, or taking up all balance by female heir because of present of other male heir. There are 4 heir in this group, daughter or son, daughter of son or son of son, full sister or brother, consanguine sister or brother. (c) Asabah Maal Ghoir Division of properties by finishing all the properties, or having all the balance by female heir because of present of other female heir. There are 2 female heir in this group, full sister and consanguine sister (sharing with daughter or daughter of son). 3. Dhawil-Arham This group replaces grop (1) and (2) when there is no husband of wife to hinder this group from taking portion of properties. In most condition this group is blocked by receiving any portion because there is other heir that closely family relation to the deceased. This situation called hijjab or wall. There is 4 Dhawil-Arham, grandfather and grandmother, grandchild or great grandchild, child of sister and sister or brother of mother. There is 2 type of hijjab: (a) Hijab Nuqshon Blocked by taking out heir portion from receiving Ashabul-Furud larger portion become smaller because of exist other heir with

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them. Example, husband received 1/4 from 1/2 because having child or grandchild.

(b) Hijab Hirman Blocked by not having portion of all because exist close family related heir of the deceased which more entitled to receive portion. Example, consaguine brother is blocked because there is full brother and father of fahter being denied by father.

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4.6 The Principles and Liabilities in Inheritance Distribution


Inheritance in Islam will not take place unless the reasons for the inheritance and the three pillars coincide which include al-muwarrith , alwarith and al-mauruth . Al-Muwarrith is when a benefactor dies, whether genuinely, taqdiri or hukmi . Al- Warith is a beneficiary who will receive an inheritance and is required to be alive during the demise of the benefactor, whether genuinely, hukmi or taqdiri . While al- Mauruth refers to the inheritance wealth owned by the benefactor, be it liquid or solid wealth and all rights associated with the wealth Islamic Inheritance Law determines four reasons for inheritance, all four reasons being consanguinity ( nasab ), marriage, wala' and Islam ( Baitulmal ). Although all four reasons for inheritance have been met, the distribution of inheritance will not occur unless the conditions below are met in full, namely
i) The benefactor had died either genuinely, hukmi or taqdiri . ii)

All beneficiaries must exist or alive, either genuinely or taqdiri , at the time of the benefactors demise.

iii) Aware of the status and rightful shares for the beneficiaries, and

there is no inheritance obstruction, such as murder, slavery and differences in religion According to Islamic Inheritance Law, when the pillars and conditions have been met, the inheritance is subject to a few liabilities or responsibilities that must be fulfilled by the beneficiaries before it can be apportioned

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according to faraid distribution. The liabilities or responsibilities must be fulfilled in the order of the following priorities. i) Making payment for the funeral rites and expenses such as expenditures for bathing and shrouding the corpse, bringing it to the cemetery, digging the grave and burying it according to a modest rate.
ii)

Settling the debts of the deceased whether debts to Allah s.w.t. such as alms ( zakat ) , atonement ( kaffarah ) , vows ( nazar ) and obligatory hajj , or debts to other human beings in the opinions of majority ( jumhur ) . The Hanafi sect does not require debt repayment for Allah s.w.t. as it was removed by death itself.

iii) Resolving matrimonial property claim by the still-living spouse if the wealth is acquired during the marriage and both parties have their respective contributions, whether directly or indirectly. The rate will be decided by the Islamic Law Court.
iv) Carrying out the will made by the deceased (if any) on the rate of

1/3 of the property after settling the matters described above. Also, a will cannot be made to the rightful beneficiary of the inheritance even though the rate is less than 1/3, unless agreed by other beneficiaries and the agreement is obtained after the benefactors demise and not while he/she was still alive.
v) Distribution of the inheritance to the rightful beneficiaries according

to faraid following the settlement of all things mentioned above

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4.7 Faraid Distribution

TERMS AND CONDITIONS FOR EVERY HEIR Below is the proportion received by each heir as guided by syara': Portion Received 1/2 Husband of Deceased Not having any daughter or son OR Not having any daughter or son of son Having daughter or son OR Having daughter or son of son

1/4

Portion Received 1/4

Wife of Deceased Not having any daughter or son OR Not having any daughter or son of son Having daughter or son OR Having daughter or son of son

1/8

Portion Received 1/2 2/3 ASABAH BI-GHAIRIH

Daughter of Deceased Only one AND have no son 2 or more AND have no son Have son

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Portion Received 1/2 2/3 1/6 ASABAH BI-GHAIRIH Blocked by

Daughter of Son of Deceased Only one AND have no son 2 or more AND have no son 2 or more with one daughter Have son of son Blocked by son OR 2 or more daughter

Portion Received 1/6 1/6 and Asabah ASABAH

Father of Deceased Have son OR son of son Have daughter OR daughter of son Have no son OR son of son

Portion Received

Mother of Deceased Have son or daughter OR son or daughter of son OR 2 or more full/consaguine/uterine brother or sister Have no son or daughter OR son or daughter of son OR 2 or more full/consaguine/uterine brother or sister Have father with husband or wife

1/6

1/3 1/3 from balance

Portion Received Like Father

Father of Father of Deceased Have the portion if father not exist

Portion Received 1/2

Full Sister of Deceased Single with no daughter or son, daughter of son or son of son, father AND no heir that can made she Asabah

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2/3 ASABAH Blocked by

Have 2 or more with no daughter or son, daughter of son or son of son, father AND no heir that can made she Asabah Have full brother OR father of father Blocked by father OR son OR son of son

Portion Received 1/2

2/3 1/6 Asabah

Blocked by

Consaguine Sister of Deceased Single with no daughter or son, daughter of son or son of son, father AND no heir that can made she Asabah Have 2 or more with no daughter or son, daughter of son or son of son, father AND no heir that can made she Asabah Have one or more of full sister Have brother OR father of father 1. Father 2. 2 or more full sister 3. Have full sister, daughter and daughter of son 4. Have full brother

Portion Received 1/6 1/3 Blocked by

Uterine Sister and Brother of Deceased Single with no fahter, father of father and no son or son of son 2 or more with no father, father of father and no son or son of son Blocked by father, father of father, son and son of son

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FARAID LAW TABLE (AMANAH RAYA)


Note: To use this table, the reader should first ascertain whether the deceased left a wife or husband, and if she or he survived, should look under the appropriate heading. Only in default of either should search be made under sons and daughters, father and mother and the rest, and then in the order given in the first margin. In each instance it is supposed that there are no nearer relations than those named. If a person dies leaving Division of Real and Personal Property WIFE: Wife and no relations to wife, to the Bait-ul-mal(1) Wife and son (sons) 1/8 to wife, rest to son (sons equally) Wife, son and daughter 1/8 to wife, 7/12 to son, 7/24 to daughter (2) Wife, two sons and two daughters 1/8 to wife, 7/24 to each son and 7/48 to each daughter. (2) Wife and one daughter 1/8 to wife, to daughter and 3/8 to Bait-ul-mal. Wife and daughters 1/8 to wife, 2/3 to daughters and 5/24 to Bait-ul mal Wife, daughter and one sons son 1/8 to wife, to daughter, rest to sons son (h.l.s.) Wife, daughters and one sons son 1/8 to wife, 2/3 to daughters equally, rest to sons son (h.l.s.) Wife, daughter, one sons son and 1/8 to wife, 1/3 to daughter, to sons son and 1/8 to sons one sons daughter daughter. (3) 1/8 to wife, to daughter, 1/6 to sons daughters equally and Wife, daughter and sons daughters rest to the Bait-ul-mal. Wife, daughters and one sons 1/8 to wife, 2/3 to daughters equally and rest to Bait-ul-mal daughter Wife, daughter and three full brothers 1/8 to wife, to daughters, 1/8 to each brother. Wife, daughters and two paternal 1/8 to wife, 2/3 to daughters equally and 5/48 to each uncle. uncles Wife, daughters and four true 1/8 to wife, 2/3 to daughters equally and 1/6 to the grandmothers grandmothers equally and the rest to the Bait-ul-mal. Wife, son and father (h.h.s.) 1/8 to wife, to father, rest to son. 1/8 to wife, 1/6 to mother and to daughter. Rest to Bait-ulWife, daughter and mother mal. 3/27 to wife, 4/27 each to father and mother, 16/27 to Wife, daughters, father and mother daughters (4) Wife, father and mother to wife, to father and to mother (5) Wife, four full brothers and two full to wife, 6/40 to each brother and 3/40 to each sister. (6) sisters Wife, four true grandmothers and two to wife, 1/24 to each grandmother and 7/24 to each uncle. paternal uncles to wife, 1/3 to mother and the residue 5/12 to true Wife, mother and true grandmother grandmother. Wife, mother, full sister, uterine 3/15 to wife, 2/15 to mother, 6/15 to full sister and 4/15 equally brother and sister, consanguine between the uterine brother and uterine sister. The brother and consanguine sister consanguine brother and consanguine sister get no shares. (7) Wife, mother, two sons 1/8 to wife, 1/6 to mother and residue 34/48 equally to sons 1/8 to wife, to daughter and the residue 6/16 to the uncles Wife, daughter, two paternal uncles equally.

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Wife, uterine sister, four sons of brother, son of uncle Wife, mother, sister Wife, mother, 2 sisters Wife, two daughters, fathers mother

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1/8 to wife, 1/6 to uterine sister and the residue 28/48 to the sons of brother equally. Son of uncle gets nothing. 3/13 to wife, 4/13 to mother and 6/13 to sister. (7) 3/13 share to wife, 2/13 share to mother and 8/13 shares to sisters equally. (7) 1/8 to wife, 2/3 equally to daughters, 1/6 to mother and the residue 1/24 to Bait-ul mal.

(1) Re Mutchilim [1960] M.L.J. 25. (2) The daughters in such case being residuaries with the son. (3) The sons daughters being residuary with the sons son. (4) An example of the doctrine of aul or increase. (5) The mother gets 1/3 of (that is after deducting the wifes share). This follows a decision of the Caliph Umar. (6) The brothers and the sisters are residuaries. (7) An example of aul.

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If a person dies leaving HUSBAND: Husband and no relation Husband and son (sons) Husband, son and daughter Husband, two sons and two daughters Husband and one daughter Husband and daughters Husband, daughter and one sons son (h.l.s.) Husband, daughters and one sons son

Division of Real and Personal Property to husband and balance to Bait-ul-mal to husband, rest to son (sons equally). to husband, to son, to daughter. to husband, to each son, 1/8 to each daughter. to husband, to daughter and rest to State. to husband, 2/3 to the daughters and rest to State. to husband, to daughter and rest to sons son.

to husband, 2/3 to daughters equally, 1/12 to sons son (h.l.s.) Husband and father to husband and to father. Husband, daughter, one sons son and one to husband, to daughter, 2/12 to sons son and 1/12 sons daughter to sons daughter. (8) Husband, daughter and three full brothers to husband, to daughter, rest to brothers equally. Husband, daughters and two paternal to husband, 2/3 to daughters equally and 1/12 to uncles uncles equally. to husband, to daughter, 1/6 to grandmothers Husband, daughter and true grandmothers equally. Rest to State. Husband, son and father (h.l.s.) to husband, 1/6 to father, rest to son. Husband, daughter and father to husband, to daughters, rest to father. 3/13 to husband, 2/13 to mother, 8/13 to daughters Husband, daughters and mother equally. (9) 3/15 to husband, 8/15 to daughters and 2/15 each to Husband, daughters, father and mother father and mother. (10) 6/13 to father, 3/13 to husband, 2/13 to mother and 2/13 Husband, daughter, mother, father, sons to father. The sons son and sons daughter are son and sons daughter excluded. (10) Husband, daughter and paternal uncle to husband, to daughter and to paternal uncle. Husband, daughter, sons daughter and two to husband, to daughter, 1/6 to sons daughter and full sisters 1/12 share equally to sisters. (11) Husband, daughter, sons daughter, one full to husband, to daughter, 1/6 to sons daughter and sister and one consanguine sister 1/12 to full sister. Consanguine sister gets nothing. (11) Husband, daughter, sons daughter, two to husband, to daughter, 1/6 to sons daughter. uterine sisters Residue to Bait-ul-mal. Husband, daughter, father, mother, sons 3/13 to husband, 6/13 to daughter, 2/13 each to father son and sons daughter and mother. (10) Husband, father and mother to husband, 1/6 to mother, rest to father. (12) 3/15 share to husband, 2/15 to father, 2/15 to mother and Husband, father, mother and two daughters 8/15 to daughters equally. (10) Husband, mother and three full sisters to husband, 1/6 to mother, 2/3 to sisters equally. Husband, mother, full sister, consanguine 3/8 to husband, 1/8 to mother, 3/8 to full sister, 1/8 to sister consanguine sister. (10) Husband, two full brothers and three full to husband, 2/14 to each bother and 1/14 to each sisters sister.(13) Husband, mother, full brother and two share to husband, 1/6 to mother and the balance of 1/3 uterine sisters between the two uterine sisters and the full brother. (14) Husband and daughters of two daughters to husband and rest to Bait-ul-mal. Husband 3/9, mother 2/9 sister 4/27, fathers father 8/27. Husband, mother, sister and grandfather (15) Husband, mother, grandfather, one Husband , mother 1/6, grandfather 1/6, consanguine consanguine brother, one or more uterine brother 1/6, uterine brother excluded. (16)

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(8) The sons son and sons daughter are residuaries. (9) Example of aul or increase. (10) Examples of aul or increase (11) In these cases the daughter and sons daughter get their Quranic shares while the sister takes as residuary. (12) The mother gets 1/3 of (that is after deducting the husbands share). (13) The brothers and sisters are residuaries. (14) This is the case of himariyya or musharaka. The full brother and the uterine sisters share the 1/3 share. See Fitzgerald Muhammadan Law p.135 and Nawawi Supra, p.250. (15) This is the case of Al-akdariya see Tyabji Muhammadan Law (3rd Edn.) p.874 and Fitzgerald Muhammadan Law p.128 and Nawawi p.253 Supra, (p.22 supra) (16) This is the case of al-Malikia see Fitzgerald p.128. If a person dies leaving SONS AND DAUGHTERS: One son and no other relations One daughter Daughters Sons and daughters One son and sons son or sons daughters One son and father (or mother) One son, father and mother One daughter and sons son One daughter, sons son and sons daughter Daughters and sons son One daughter, one sons daughter, and one full brother Daughters, one sons daughter and one full brother Daughters and sons daughters Daughter and father Division of Real and Personal Property All to son to daughter and rest to State. 2/3 to daughters equally and rest to State Equally between all sons and daughters, but so that the share of each son is double that of each daughter. All to son. 1/6 to father (or mother) rest to son. 1/6 to each father and mother, rest to son. to daughter, rest to sons son to daughter, 2/6 to sons son and 1/6 to sons daughter 2/3 to daughters equally, rest to sons son to daughter, 1/6 to sons daughter, rest to full brother. 2/3 to daughter and rest to full brother. 2/3 to daughter and rest to Bait-ul-mal (sons daughters excluded unless there is a lineal male descendant of the same or lower degree). to daughter and to father (1/6 as Quranic heir and 1/3 as agnatic heir). 2/3 to daughters equally and rest to father

Daughters and father Daughters, sons daughters and 2/3 to daughter, rest to father. (17) father One daughter, father and mother to daughter, 1/6 to mother, rest to father One daughter, mother, four full to daughter, 1/6 to mother, 1/12 to each brother. brothers One daughter and mother to daughter, to mother and rest to Bait-ul-mal. Daughters and mother 2/3 to daughters equally, 1/5 to mother and rest to Bait-ul-mal. Daughters, father, mother and sons 2/3 to daughters equally, 1/6 each to father and mother, nothing son to sons son there being no residue. Daughters and four paternal uncles 2/3 to daughters equally, 1/12 to each uncle Daughter (sons daughter) and full to daughter (sons daughter) and to full (consanguine) (consanguine) sister sister. Daughters (sons daughters) and full 2/3 to daughters (sons daughter), and 1/3 to full (consanguine) (consanguine) sisters sister. Daughters, four true grandmothers 2/3 to daughters equally, 1/6 to grandmothers equally (i.e. 1/24 and six paternal uncles each) and 1/36 to each uncle. Two daughters, one consanguine 2/3 to two daughters and 1/3 to sister. Brothers son gets sister, one brothers son nothing Two daughters, a sons daughter and 2/3 to daughters, 1/9 to sons daughter and 2/9 to sons son. a sons son (18)

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Two daughters, a sons daughter and 2/3 to daughters, 1/9 to sons daughter and 2/9 to sons son. a sons sons son (18) Two daughters of a son, daughter of 2/3 to daughters equally, 1/9 to daughter of sons son and 2/9 to sons son, son of sons sons son son of sons sons son. (20) Sons daughter, daughters son and share to sons daughter and share to brother. Daughters brother son gets nothing. Sons sons and sons daughters (of Equally between sons son and sons daughters but so that the same degree) share of each of the former is double of each of the latter. (19) Sons daughters and sons sons son 2/3 to sons daughters, rest to great-grandsons equally Sons daughter and sons sons to sons daughter and 1/6 to sons sons daughter and the daughter rest to the Bait-ul-mal. (20)

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(17) There is a doubt whether the sons daughters (who are excluded as Quranic heirs) are nevertheless entitled to take as residuaries together with the agnatic ascendant or collateral. See Fitzgerald Muhammadan Law, p.124. (18) In all these cases, as there are two daughters the sons daughter cannot inherit as Quranic heir. She therefore takes as an agnatic heir and shares the residu with the lower sons son. (19) The sons daughter is a residuary with an equal sons son. (20) As there is a nearer daughter, the share of the sons sons daughter is 1/6 that is the remainder of the 2/3 share of daughters. If a person dies leaving FATHER AND MOTHER: Father and no other relations Father and mother Father, full brothers and sisters Father, mother, three sons daughters Father, mother, daughter, four sons daughters Father, mother, two sons daughters and sons sons daughter Father, mother, sons daughter, sons sons daughter Mother and no other relations Mother, and full brothers Mother, full brother and uterine brother Mother and full sisters Mother, full sister, and consanguine brother and sister Mother, full sisters, consanguine brother and sister Mother, two full sisters, a consanguine sister and a uterine sister (or brother) Mother, consanguine sisters and uterine sister Mother and paternal uncles Division of Real and Personal Property All to father. 2/3 to father, 1/3 to mother All to father. 1/6 to father, 1/6 to mother and 2/3 to three sons daughters in equal Shares. 1/6 to father, 1/6 to mother, to the daughter and 1/6 to the sons daughters in equal shares. 1/6 to father, 1/6 to mother and 2/3 to sons daughters in equal shares. The sons sons daughter is excluded by the two sons daughters. 1/6 to father, 1/6 to mother, to sons daughter and 1/6 to sons sons daughter (the sons daughter and sons sons daughter share the Quaranic share of two or more daughters). 1/3 to mother and rest to Bait-ul-mal. 1/6 to mother, rest to brothers equally. 1/3 to mother, 1/6 to uterine brother, rest to full brother. 1/6 to mother, 2/3 to sisters equally and rest to Bait-ul-mal. 1/6 to mother, to full sister, rest to consanguine brother and sister but so that the former receives double the share of the latter. 1/6 to mother, 2/3 to full sisters equally, rest as in preceding case. 1/6 to mother, 2/3 to equally among the sisters, and 1/6 to the uterine sister or brother (the consanguine sister is excluded by two full sisters). 1/6 to mother, 2/3 to consanguine sisters equally, 1/6 to uterine sister. 1/3 to mother, 2/.3 to paternal uncles equally.

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References

1)

Laws of Malaysia, WILLS ACT 1959, published by the commissioner

of law revision, Malaysia. In collaboration with percetakan nasional Malaysia berhad 2006. 2) Wikipedia, the free encyclopedia. (2011, October 14)Will Act

(Malaysia). Retrieved from http://en.wikipedia.org/wiki/Will_(law) 3) What is a WILL?

Retrieved from http://www.arb.com.my/arbwos/References/faqs/faq1.asp 4) What are the characteristic of WILL?

Retrieved from http://www.arb.com.my/arbwos/References/faqs/faq2.asp 5) Why do we need a WILL?

Retrieved from http://www.arb.com.my/arbwos/References/faqs/faq4.asp 6) Islamic WILLS: Amanah Raya perspective and practice

Retrieved from http://mlticonline.com/syariah/morenews.aspx?id=MLTIC171210-EV4&Cateid=3&Title=Islamic%20Wills:%20Amanah%20Raya %20Practice%20%20and%20Perspective 7) Islamic wills: SELANGOR BAR COMMITTEE

Retrieved from http://selangorbar.org/wpcontent/uploads/2010/12/brochure-form-syariahwills-280111.pdf 8) Letter of WILL: Agrobank

Retrieved from http://www.agrobank.com.my/surat-wasiat-amanah-rayaberhad

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9)

Sistem Maklumat Faraid: USM

Retrieved from http://maths.usm.my/faraid/msl/default.html 10) Laman web ISLAM: Faraid

Retrieved from http://maths.usm.my/faraid/msl/default.html 11) Sistem pengurusan FATWA: USIM

Retrieved from http://infad.usim.edu.my/modules.php? op=modload&name=News&file=article&sid=2198&newlang=mas 12) Youtube: Faraid by USTAZ GHAZALI IBRAHIM

Retrieved from http://www.youtube.com/watch?v=5v1xnJ4OhHc 13) Youtube: Faraid by Ustaz Hussain Yee

Retrieved from http://www.youtube.com/watch?v=_3W-NFXjP1 14) Youtube: Faraid khunsa by USTAZ AZHAR IDRUS

Retrieved from http://www.youtube.com/results? search_query=faraid+azhar+idrus&oq=faraid+azhar+idrus&aq=f&aqi=& aql=&gs_sm=e&gs_upl=47792l50241l0l50440l11l11l0l10l0l0l60l60l1l1l0 15) Warisan Mukmin: Pelan pembahagian warisan harta

Retrieved from http://www.warisanmukmin.com/#axzz1gcOWv2Rf

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