بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
Introduction
Ancient Arab society placed significant emphasis on the preservation and interests of the tribal unit, as evidenced by the pre-Islāmic laws of inheritance. However, with the emergence of Islām and Islāmic inheritance law, the primacy of ancient Arab tribal loyalties gave way to a focus on the family unit, wherein mutual protection and support were paramount.
Nevertheless, societal changes over time have transformed the socio-economic structure of the family, diminishing the significance of the extended family unit. This shift has seen the erosion of familial bonds that once characterized close-knit communities, replaced by pervasive individualism. Former expectations of paternal uncles to safeguard the welfare of orphaned nephews and nieces have waned, with such obligations no longer felt.
In response to this evolving familial landscape, many Muslim states have sought to adapt traditional Islāmic inheritance laws to address the needs of orphaned grandchildren, thereby fostering stronger ties within immediate family structures. These efforts have led to the adoption of two distinct systems, which will be examined in detail below.
In the traditional Islāmic law of inheritance, the principle of "a nearer in degree excludes the more remote" governs the inheritance rights of male agnates (ʿaṣabāt). This foundational principle, universally accepted across Islāmic schools of jurisprudence (fiqh), dictates that grandchildren of a predeceased son or daughter are entirely precluded from inheriting the estate of their grandparents if a surviving son is present.
The obligatory bequest in favour of the orphaned grandchild
The practice of the "obligatory bequest" (waqf wājib) has been implemented in several Muslim-majority countries, including Sudan, Egypt, Syria, Jordan, Tunisia, Morocco, Algeria, Libya, Iraq, and Kuwait. However, the specific laws governing the obligatory bequest vary among these nations. Notably, Egypt's law of 1946 provides a comprehensive framework for obligatory bequests, extending its application to grandchildren of both predeceased sons and daughters, as well as to agnatic grandchildren, regardless of their hierarchical status. According to Egyptian law, a testator is required to allocate a bequest in favour of grandchildren who are not entitled to inherit under traditional Islāmic law, provided that the bequest does not exceed one-third of the estate or the equivalent of the share of the predeceased child, whichever is less. Failure to fulfil this obligation results in the intervention of the court, which will enforce the bequest, prioritizing it over any other provisions made by the testator.
The concept of the obligatory bequest is derived from Qur'ānic authority, specifically verse 2:180. While this verse predates the inheritance verses (Quran 4:11-12), which are universally recognized as having abrogated verse 2:180, scholars debate the extent of this abrogation. The majority view holds that verse 2:180 was entirely abrogated by the later verses, while a minority view suggests only partial abrogation, allowing for bequests to relatives who do not inherit. This latter perspective, advocated by Imam Shafi'i, posits that verse 2:180 imposes a legal obligation in favour of close relatives, which must be enforced by the courts if the testator fails to fulfil it.
While Islāmic law permits a testator to make bequests to relatives not covered by inheritance laws, such bequests are typically intended for distant relatives, as the law already provides for close relatives. Nevertheless, verse 2:180's reference to "next of kin" raises questions regarding the classification of orphaned grandchildren as either near or distant relatives. If considered near relatives, this designation would suggest a deficiency in traditional Islāmic inheritance law, whereas if categorized as distant relatives, verse 2:180 would not serve as justification for obligatory bequests to them.
The obligatory bequest, by mandating a voluntary act, introduces theological complexities, as it obligates what is traditionally a discretionary provision of the testator. Moreover, by prioritizing obligatory bequests over other provisions made by the testator, the law undermines the testator's autonomy in distributing their estate. While the law may address perceived hardships, it diverges from the principles of Islāmic inheritance law, which are based on rights granted by Allah.
In Egypt, the implementation of obligatory bequests has followed three main methods. The first, known as the Court method, calculates the share of the predeceased parent of the orphaned grandchild and allocates this share to the grandchild, or one-third of the estate, whichever is lesser. This method effectively applies inheritance by representation with a minimum share of one-third, adversely affecting the shares of other heirs. The Mufti's method, endorsed by a fatwa from the Grand Mufti of Egypt, assigns the orphaned grandchild a bequest equivalent to the share of their deceased parent. However, this method may not always align with the letter of the law. The third method, advocated by Sheikh Muhammad Abu Zahra, maintains the proportional entitlement of all legal heirs while ensuring that the orphaned grandchild inherits what their parent would have inherited through a bequest, without disturbing the relative entitlement of other heirs.
In Egyptian law, any bequests made by the deceased, including those to the orphaned grandchild, must be accounted for during estate distribution, further complicating the calculations involved in applying obligatory bequests.
Inheritance by Representation (Reforms by Pakistan 1961)
Pakistan implemented a distinctive system to address the inheritance rights of orphaned grandchildren through the Muslim Family Laws Ordinance of 1961, specifically articulated in section 4. According to this ordinance, "In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive."
This provision essentially embodies the principle of representation, affording orphaned grandchildren the entitlement to inherit by assuming the legal standing of their deceased parent. Traditional Islāmic inheritance law, however, does not endorse the principle of representation. As per a hadith narrated by Abd Allāh Ibn Abbas (
), the Prophet Muhammad stated, "Give the farā'id to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased."
Proponents of this reform argue that since the paternal grandfather can act as a representative for the father, the grandchild should similarly be allowed to represent their parent. However, this interpretation misconstrues traditional Islāmic law. The paternal grandfather's role in lieu of the father's absence constitutes substitution rather than representation. Moreover, examples cited by supporters, such as the inclusion of the paternal grandmother or the son's daughter in inheritance despite the presence of a son, overlook the principle of "a nearer in degree excludes the more remote," which applies to male agnates rather than Quranic heirs.
The inheritance rights granted to orphaned grandchildren by the 1961 Ordinance in Pakistan significantly diverge from traditional Islāmic inheritance law. By extending inheritance rights to all grandchildren and elevating their status to that of Quranic heirs, the ordinance disrupts the established hierarchy of priorities in Islāmic inheritance law. Consequently, the daughter's daughter, traditionally categorized as distant kindred, now shares the inheritance rights guaranteed to Quranic heirs, while the son's daughter not only excludes all siblings but also inherits twice the share of the daughter.
Conclusion
The traditional Islāmic law of inheritance is characterized by a meticulously balanced system governed by well-defined rules. Altering certain aspects of this system can result in unforeseen consequences that were neither intended nor anticipated. Reforms enacted by some Islāmic states, aimed at addressing perceived injustices, have, in certain instances, inadvertently led to different forms of injustice.
Both the obligatory bequest legislation in Islāmic states of the Middle East and Pakistan's law of representation disrupt the traditional Islāmic inheritance law. For instance, under the obligatory bequest law, as implemented in Egypt, the grandchildren of daughters may find themselves in a more advantageous position than the grandchildren of sons. Similarly, Pakistan's law of representation allows grandchildren to inherit more than their parents. Such discrepancies, which undermine the rights of heirs established under traditional Islāmic law, are prone to creating complications.
Moreover, the obligatory bequest law encroaches upon the testamentary freedom of the deceased.
(Source: Adapted from "The Islamic Law of Wills and Inheritance" by Dr. A. Hussain, 2015)