Hafiz Zubir, Athirah & Co.

INHERITANCE SERIES: SHOULD WILLS BE WRITTEN WHEN FARAID EXISTS?

In Malaysia, a common misconception among the Muslim society is that only the legal heirs are entitled to rights of property inheritance upon the demise of the deceased. Ergo, faraid – the system of which properties are distributed among legal heirs upon a person’s death – shall prevail over other means of property distribution. Another common misconception is that considering other methods of property management prior to death are sacrilege to the ascribed inheritance rights by way of faraid.  To limit the scope of this article, the method of property management in question shall be confined to the issue of wills.

 

In the book of Sahih Bukhari, the Chapter of Wasaya (Wills and Testaments) recorded a narration from Saad bin Abi Waqqas of a conversation between him and Prophet Muhammad (peace be upon him) during the latter’s visit to his dwelling upon hearing of his illness. He asked the Prophet if, upon his demise, he may will all his property to charity. To this question, the Prophet answered in negative. The same answer was given when he reduced the number to half. Finally, the Prophet answered that he may ascribe only one-third of his property to charity. As Saad bin Abi Waqas had a female progeny, the Prophet urged him to leave behind property so she may continue life in ease.

 

From the above narration, it is understood that a person’s legal heirs are secured in their rights of inheritance, even in the existence of a will. Moreover, a will may only be made towards a maximum of one-third of a person’s total wealth. Therefore, in no way does a will interfere with faraid. The legal heirs shall obtain their portion as set out according to the faraid calculation, while still be respectful of the deceased’s wishes through a will. Let us be cognizant that God had permitted bequeast by way of wills as a compassion to loved ones who are excluded from the list of legal heirs, such as adopted children, stepchildren, illegitimate children, stepsiblings, distant relatives, and even family members of different faiths.

 

[To be continued in Part 2:

Return to Intention, Protect Women Through Faraid]

 

 

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