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Islamic Contract Law: Ownership Through Succession
Meaning of Succession
Succession refers to the lawful transfer of ownership from one person to another, especially after the death of the former owner.
In Islamic law, a person may acquire ownership through succession when the requirements prescribed by Shariah are fulfilled.
There are two main forms:
- Mirath — inheritance
- Wasiyyah — will or bequest
1.
Mirath
— Inheritance
Mirath refers to the transfer of a deceased person’s property to his or her lawful heirs according to the shares determined by Shariah.
When a person dies, ownership of the estate passes to the entitled heirs after matters such as funeral expenses, debts, and valid bequests have been dealt with.
Possible Heirs
Depending on the family situation, heirs may include:
- Parents
- Husband or wife
- Sons and daughters
- Brothers and sisters
- Other eligible relatives
Not every relative automatically receives a share. Entitlement and the amount received depend on the rules of Islamic inheritance.
Example
Ahmad dies and leaves:
- A wife
- A son
- A daughter
- Property worth RM300,000
After the necessary expenses, debts, and valid wasiyyah are settled, the remaining estate is distributed among the lawful heirs according to the Islamic rules of inheritance.
The heirs become owners of their respective shares through mirath.
Mirath = compulsory transfer of the deceased’s estate to lawful heirs according to Shariah.
Important Characteristic of
Mirath
The deceased does not personally decide the inheritance shares.
The shares are determined by Shariah, based mainly on the Qur’an and Sunnah.
Therefore, a person cannot simply declare:
“I want one child to receive everything and the other heirs to receive nothing.”
If the excluded persons are lawful heirs, their inheritance rights cannot normally be cancelled by the deceased.
2.
Wasiyyah
— Will or Bequest
Wasiyyah refers to a person’s instruction that a certain property or benefit be given to another person after the person’s death.
Unlike mirath, which arises automatically under Shariah, wasiyyah is based on the deceased person’s voluntary decision.
Example
Fatimah states before her death:
“After I die, I want RM10,000 from my estate to be given to a charitable organisation.”
The transfer only takes effect after Fatimah’s death.
This is a wasiyyah.
Wasiyyah
Is Different from
Hibah
A wasiyyah should not be confused with hibah.
Hibah
A gift made during the person’s lifetime.
Example:
Ahmad gives his car to Ali today.
Ownership transfers during Ahmad’s lifetime.
Wasiyyah
A gift or bequest that takes effect only after death.
Example:
Ahmad says:
“After I die, my RM5,000 collection should be given to Ali.”
Ownership transfers only after Ahmad’s death.
So:
Hibah = transfer during lifetime
Wasiyyah = transfer after death
Limit on
Wasiyyah
As a general rule, a Muslim may make a wasiyyah of up to one-third of the net estate after relevant obligations are considered.
This protects the inheritance rights of the lawful heirs.
Example
Suppose Ahmad leaves a net estate of RM300,000.
Generally, he may make a wasiyyah of up to:
RM100,000
The remaining estate is then distributed among the lawful heirs according to mirath.
A bequest exceeding one-third normally requires the consent of the heirs.
Wasiyyah
to an Heir
As a general rule, a wasiyyah is not made in favour of a person who is already a lawful heir, unless the other heirs agree after the deceased’s death.
The reason is that the heir already receives a share through mirath.
Example
Ahmad’s son is already entitled to inheritance.
Ahmad cannot ordinarily use wasiyyah to give that son an additional portion at the expense of the other heirs without the required consent.
Main Difference Between
Mirath
and
Wasiyyah
Mirath
- Arises automatically after death.
- Beneficiaries are lawful heirs.
- Shares are determined by Shariah.
- The deceased cannot freely change the prescribed shares.
Wasiyyah
- Based on the deceased person’s voluntary instruction.
- Takes effect after death.
- Generally limited to one-third of the net estate.
- Commonly used to benefit non-heirs, charities, or other lawful purposes.
Order Before Distribution of Inheritance
When a Muslim dies, the estate is not immediately divided among the heirs.
Generally, the estate is dealt with in an orderly manner:
- Necessary expenses connected with the deceased are settled.
- Outstanding debts are paid.
- Valid wasiyyah is carried out within the permitted limit.
- The remaining estate is distributed to the heirs through mirath.
This ensures that existing obligations are fulfilled before the heirs receive their shares.
Simple Summary
Ownership through succession occurs mainly after death and may take two forms.
Mirath
The deceased’s property passes to the lawful heirs according to Shariah-prescribed shares.
Example: A son, daughter, spouse, or parent receives an inheritance share.
Wasiyyah
The deceased directs that part of the estate be given to someone or for a lawful purpose after death.
Example: RM20,000 is left to a charitable organisation.
Easy Way to Remember
Mirath = Shariah determines who receives the estate and their shares.
Wasiyyah = the deceased chooses a beneficiary, subject to Shariah limits.
