Of Wills and  Bequests

 By Dr Riffat Hassan
Friday, 31 Jul, 2009 | 03:37 AM PST   Fri, 31 Jul, 2009 | Sha'aban 08, 1430

IN order to fully understand the intent and content of the Quranic prescriptions regarding inheritance stated in Surah 4:11-12 and 176, it is necessary to note that it is stated four times in these verses that a person’s assets are divided “… after (the deduction of) any bequest he may have made, or any debt (he may have incurred)”.

What this means is that when a person dies, from what he/she leaves behind, bequests that he/she may have made in a will, as well as any debts that may have accrued, have to be deducted before the inheritance is divided according to the Quran.

A very important implication of the cited statement is that every Muslim who leaves behind any material possession is required to make a will as enjoined in Surah 2:180 which states: “It is ordained for you, when death approaches any of you, leaving behind wealth, to make a bequest for the benefit of his (her) parents and (other) near of kin, in accordance of what is fair: this is an obligation on all who are conscious of God.”

The Quran has enjoined not only the making of a will, but also its witnessing, as stated in Surah 5:106-108: “O you who have attained faith! Let there be witnesses between you when death approaches you and you make bequests: two persons of probity from among your own people; or two other persons from (among people) other than your own, if you are travelling in the land (and are far from home) and the visitation of death befalls you. Take hold of the two after the prayer, and each of them shall swear by God, if you are doubtful, ‘We will not sell it (the truth) for any price, even if it were (a change that may benefit) a near kin, nor will we hide any of what we have witnessed in God’s presence, for then we would surely be among the wrongdoers’.

“But if it be discovered afterwards that both of them have committed a wrongdoing, then two others — from among these (the heirs of the deceased) whose rights have been hurt by the (initial testimony of the (former) two — shall take their place and swear by God, ‘Our testimony is indeed truer than the testimony of these (former) two, and we have not transgressed the bounds of what is right, for then we would assuredly be among the evildoers’. Thus it will be more likely that people will offer testimony properly (in accordance with the truth), or else they will fear that their oaths may be rebutted after they pronounce them.”

Regarding the stipulation that the will should be witnessed by two persons of good repute, Dr Fathi Osman aptly observes, “It is significant that no differentiation between male and female witnesses is mentioned with regard to the two witnesses required for hearing the oral statement of a will.”
As stated earlier, bequests (and debts) mentioned in a will must be deducted before the inheritance can be divided among the heirs. Stating that bequests should be made in the light of the special needs and circumstances of the heirs of the deceased person, Dr Fathi Osman observes: “In general a personal will which would be designed according to the special circumstances of the family of the deceased, is given priority to the general mandatory rules given by the Quran in the verses 4:11-12, 176. These general mandatory rules have to be applied to the whole legacy of the deceased person if he/she has not left any valid will, and they have to be applied to part of the legacy” when there is a valid will in which bequests have been recorded.

It should be noted in the light of the foregoing analysis of the Quranic stipulations with regard to inheritance that though the share of a son is twice that of a daughter, it is possible for parents to provide, in their lifetime, for the special needs of the latter through a bequest recorded in the legal will (wasiyya). As stated earlier, a bequest, along with any debts, would be deducted from the legacy of the deceased before distribution amongst heirs.

Explaining that in Islam the legal responsibility for maintaining the family rests on the man, Dr Fathi Osman points out that “every female has a man to provide all her needs, be he a father, a husband, a brother or a son, and thus her share in the inheritance will be something additional for her personal disposal while her needs are fulfilled by the nearest male kin who is legally responsible for such maintenance. When this is not the case, and the woman has to earn her own living, and fulfill her own needs, the personal will can respond specifically to different circumstances”.

The foregoing account demonstrates that if the Quranic prescriptions regarding inheritance are understood in their historical and cultural context, they do not discriminate against women. In fact, if properly implemented, they would greatly enhance women’s economic empowerment.

The writer is a scholar of Iqbal and Islam, teaching at the University of Louisville, US.
rshass01@gwise.louisville.edu