ADMINISTRATION

OF ESTATE AND SUCCESSION UNDER ISLAMIC

LAW.
By
Hon. Kadi Zakariya Idakwoji Muhammad
Hon. Grand Kadi, Kogi State.

Introduction

Praise be to Allah, the Lord of the worlds, who by His grace and
volition created us humans and showed us in the Quran how to
divide inheritance and may His peace and blessings be on our
Prophet Muhammad, His family and companions (Sahaba) (Ameen).

I very much appreciate this singular honour done to me by the

Administrator of the National Judicial Institute and the Management
for inviting me to serve as a resource person at the Refresher course
for judicial Officers on Current Trends in Law and Administration of
Justice, taking place between 14th – 18th March, 2016, enabling me to
write and present a paper titled: “Administration of Estate and
Succession Under Islamic Law”, to form part of the conference
theme which is “Promoting Judicial Performance Through
Innovations and Reforms”

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 This topic of discussion, “Estate and Succession” is one of the
most important and significant sources of knowledge in Islam. This
was why the Quran laid much emphasis on its impact on muslim life.
In almost every verse of the Quran revealed to Prophet Muhammad
(PBUH), majority of the verses were pregnant as they still needed
interpretations from the part of its recipient, Muhammad (PBUH), for
example, institutions such as Salat, Zakah, Sawm, Hajj etc with many
several verses, spread all over the Qur’an, still needed the prophet’s
explanations to fully practicalise them.

As for Estate and Succession, the Qur’an leaves no stone

unturned. It gives detail information as to how to administer or
distribute the Estate of a deceased Muslim amongst his successors.
As for the allotees, it provides detailed share each deserves to get
from the existing estate. On the part of the Prophet he is the role
model for all muslims as stated in Qur’an 33:21 where Allah says:
“You have indeed in the apostle of Allah, a beautiful pattern of
conduct for anyone whose hope is in Allah and the final day and who
engages much in the praise of Allah”. He laid more emphasis in
teaching this obligatory knowledge to his companions until they
acquired the knowledge and became experts in it. The prophet
(PBUH) noting that this important knowledge might be neglected by

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his followers, warned that all muslims must seek it at all cost so that
there would be no scarcity in the number of preservers of its
knowledge amongst Islamic scholars.

Today, this prophecy by the messenger of God has manifested

in every facet of muslim life as majority of muslims in today’s
generation lack adequate knowledge of Ilmul – al – Faraid (obligatory
knowledge) as prescribed in the Qur’an. Lack of this knowledge in
our times has made women and children victims of either greedy
relations or ignorance prevailing today has made some legal sharers
lose their rights and the activities of ignorant Estate administrators
most often leads to misguidance of inheritors. That is why the
prophet said, “Learn the knowledge related to inheritance (Ilmul
Faraid) and teach it to others as this constitutes half of knowledge”1.

On the whole, I thank the administrator of NJI and the

conveners of this conference/workshop for choosing this topic. With
humility therefore, I reiterate that whatever flaws you find in this
write up, I own them and may Allah forgive (Ameen).

The topic as stated above is “Administration of Estate and

Succession under Islamic Law”. For one to treat this topic, we need

1. Sunan Ibn Majah

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to first understand some key words. These are Islamic Law, Estate
and Succession. I will (In Sha Allah) endeavour to examine these
terms in seriatim.

What is Islamic Law or Sharia?: Sharia is an Arabic word which,

literally, means a path, a way or road that leads one to any watering
place. 2

Legally speaking, Sharia could be defined as “The immutable

law of the creator for the guidance of humanity”. It could also be
defined as a divine law ordained for the guidance of both mundane
and spiritual life of the muslim Ummah. As it is of divine origin, its
guidance encompasses the past, the present and the future life of
mankind. In other words Islam is a religion (Deen) and a way of life
for all true muslims who adhere to its teachings.

Historically, Islamic Law or Sharia originated right from the

period of Prophet Muhammad (SAW). Its laws started right from
there with the piece-meal revelation of the Holy Quran to Prophet
Muhammad (SAW), who on His own part stood as link and
interpreter of the dictates of the Quran especially where the
revelation needed explanation for the understanding of its

2. Aminat Bashar Alabasu (Mrs). “Sharia Legal System Vis-à-vis Human Right in
Nigeria”, NJI Law Journal, 2010

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adherents. This took place for about 23 years (610 – 632 AD).
Through this divine role of messenger-ship by Prophet Muhammad,
all His actions, sayings and salient approval were preserved by the
Sahaba and/or their followers. This is regarded as Sunnah or Hadith
of Prophet Muhammad. This culture of preservation and practice of
Sunnah continued until the death of Prophet Muhammad.

Under the rightly guided Caliphs, that is, Caliph Abubakar as

Sideeq 632 AD – 634 AD, Umar bn al-Khatab 634 AD – 646 AD,
Uthman bin Affan 646 AD – 656 AD and Ali bn Abi Talib 656 AD – 661
AD, the Quran as source of Law of Islam with the Sunnah of Prophet
Muhammed served as Islamic legal sources. Under the Sahaba, with
the expansion of Islam to various lands and peoples, the two sources
served as referral points of guidance to muslims.

When issues not definitely decided upon by both primary

sources occurred, the Sahaba resorted to Ijtihad, e.g using their
extensive knowledge of the Quran and the Sunnah of the Prophet
Muhammad (SAW) to solve the new issues that were not explicitly
decided upon. Any solution arrived at through this Ijtihad was
termed Consensus of the Sahaba or opinion of the Jurist of an age,
which hence became a source of law in Islamic Law or Sharia. Other

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sources of law in Islam followed these three and they emanated
from the Ijtihad of later generations that followed the companions of
the Prophet. We avoid details because of time factor and relevance
to our discussion.

The Jurists refer to these basic sources as “AL – Adillat al –

Qatiyyat” which are absolutely sure and irrefutable arguments. The
second one is referred to as Al – Adillat al – Ijtihadiyyah which means
argument and proof derived through exertion and this is from Nass;
i.e. the Holy Quran and the Sunnah. These other sources are referred
to by Jurist as subsidiary sources. They include Ijmah, which is the
consensus opinion of scholars/Jurists of the muslim Ummah in
particular ages and on a given law.

Qiyas, a source of Islamic law, means an analogical deduction

which literally means “to guess or to estimate” a measurement by
comparison. Technically, it means extension of a Sharia rule from an
original case (Asl) to a new case (Far’u) “by reasons of an effective
case (Illa) which is common to both cases3.

Others are Istihsan, removal of discrepancies in law for public

good, Urf which means custom, Istislah consideration for public

3. AbdurRahman Doi: “Outline of Islamic jurisprudence”

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interest and Istihab, presumption of continuity in the natural
absence of law etc.

Concept of Inheritance

The concept of inheritance or succession in Islam is rooted in

the transient nature of man’s life. Man’s transient nature itself is
underscored by two verses of the holy Quran namely:

.‫ﻛل ﻧﻔس ذآﺋﻘﺔ اﻟﻣوت ﺛم إﻟﯾﻧﺎ ﺗرﺟﻌون‬

“Every soul shall taste death and then unto

us is the return” (Quran 29:57) 4
َ ‫ َوإِ ﱠﻧﺎ إِ َﻟ ْﯾ ِﮫ َرا ِﺟﻌ‬2
‫ُون‬ َ َ‫ِﯾن إِ َذا أ‬
ِ ‫ﺻﺎ َﺑ ْﺗ ُﮭ ْم ﻣُﺻِ ﯾ َﺑ ٌﺔ َﻗﺎﻟُوا إِ ﱠﻧﺎ ِ ﱠ‬ َ ‫ اﻟﱠذ‬

“…Truly to Allah we belong and truly,

to him we shall return” (Quran 2:156) 5
The implication of the above verses is that man’s sojourn on
earth is for a limited period. Then comes the appointed time to die.
During the short span of his life, whatever he acquires in the world is
left behind except his good deeds which will go with him.

The property and the belongings that he leaves behind goes to

his successors. Islam being a complete way of life, the Holy Quran
contains rules for the disposal of such property and belongings.

4. Quran 29 – 57
5. Quran 2: 156

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Some specific provisions in the Holy Quran and Sunnah of the Holy
Prophet Muhammad (PBUH) forming the origin of the concept,
principles and science of inheritance are as Follow:

“It is prescribed for you when death approaches

any of you, if he leaves wealth, that he makes
a bequest to parents and next of kin,
according to reasonable manners.”
ُ
ِ ‫ْن َﻓﺈِنْ ُﻛنﱠ ﻧ َِﺳﺎ ًء َﻓ ْو َق ْاﺛ َﻧ َﺗﯾ‬
‫ْن َﻓ َﻠﮭُنﱠ‬ ِ ‫ﷲُ ﻓِﻲ أَ ْو َﻻ ِد ُﻛ ْم ﻟ ﱠِﻠذ َﻛ ِر ﻣ ِْﺛ ُل َﺣ ﱢظ ْاﻷ ْﻧ َﺛ َﯾﯾ‬ ‫ﯾُوﺻِ ﯾ ُﻛ ُم ﱠ‬
‫ت َواﺣِدَ ًة َﻓ َﻠ َﮭﺎ اﻟ ﱢﻧﺻْ فُ َو ِﻷَ َﺑ َو ْﯾ ِﮫ ﻟِ ُﻛ ﱢل َوا ِﺣ ٍد ِﻣ ْﻧ ُﮭ َﻣﺎ اﻟ ﱡﺳ ُدسُ ِﻣﻣﱠﺎ‬ ْ ‫ُﺛﻠُ َﺛﺎ َﻣﺎ َﺗ َر َك َوإِنْ َﻛﺎ َﻧ‬
ٌ‫ﺎن َﻟ ُﮫ إِ ْﺧ َوة‬ َ ‫ث َﻓﺈِنْ َﻛ‬ ‫ﺎن َﻟ ُﮫ َو َﻟ ٌد َﻓﺈِنْ َﻟ ْم َﯾ ُﻛنْ َﻟ ُﮫ َو َﻟ ٌد َو َور َﺛ ُﮫ أَ َﺑ َواهُ َﻓ ِﻸ ُ ﱢﻣ ِﮫ ﱡ‬
ُ ُ‫اﻟﺛﻠ‬ َ ‫َﺗ َر َك إِنْ َﻛ‬
ِ
‫ون أَ ﱡﯾ ُﮭ ْم‬
َ ‫ْن آ َﺑﺎؤُ ُﻛ ْم َوأَ ْﺑ َﻧﺎؤُ ُﻛ ْم َﻻ َﺗ ْد ُر‬ ُ
ٍ ‫َﻓ ِﻸ ﱢﻣ ِﮫ اﻟ ﱡﺳ ُدسُ ِﻣنْ َﺑﻌْ ِد َوﺻِ ﱠﯾ ٍﺔ ﯾُوﺻِ ﻲ ِﺑ َﮭﺎ أَ ْو دَ ﯾ‬
‫ﺎن َﻋﻠِﯾﻣًﺎ َﺣﻛِﯾﻣًﺎ‬ َ ‫ﷲ َﻛ‬ َ ‫ﷲ إِنﱠ ﱠ‬ ِ ‫ﯾﺿ ًﺔ ﻣ َِن ﱠ‬ َ ‫أَ ْﻗ َربُ َﻟ ُﻛ ْم َﻧ ْﻔ ًﻌﺎ َﻓ ِر‬

“Allah commands you as regards your

Children’s (inheritance); to the male, a portion
equal to that of two females; if (there are)
women (only daughters), two or more,
their share is two third of the inheritance;
if only one (daughter), her share is a half.
For parents, a sixth share of the inheritance
to each, if the deceased left children;

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 if no children, and the parents are the (only)
heirs, the mother has a third; if the deceased
left brothers (or sister), the mother has a
sixth. (The distribution in all cases is ) after
the payment of legacies he may have
bequeathed or debt. You know not which
of them, whether your parents or your
children are nearest to you in benefit;
(those share) are ordained by Allah. And
Allah is Ever All Knower, All wise” (Quran 4:11) 6
Hadith:

Narrated by Jabir: “The Prophet (PBUH) and Abubakar (RA)

came on foot to pay me a visit (during my illness) at Banu Salma
(dwellings). The prophet (PBUH) found me unconscious, so he
asked for water and performed the ablution from it and
sprinkled some water over me. I came to my senses and said:
“Allah’s Apostle, what do you order me to do as regards my
wealth?” so this was revealed: “Allah commands you as regards
your children’s inheritance” 7.

6. Quran 4 : 11
7. Sahih al – Bukhari Kitabul Tafsir 101

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 The Islamic law or principle of inheritance or succession is
referred to in Arabic language as AL – MIRATH. About thirty –
five verses of the Holy Quran mention or cover it directly or
indirectly.

Directly the Quran says in Surah 57:10

“And what causes have you why you should

not spend in the cause of Allah? For to Allah
belongs the inheritance of the heavens and the earth”
Indirectly it says;

‫ﷲ ُﺗرْ َﺟ ُﻊ ْاﻷُﻣُو ُر‬ ِ ْ‫ت َو َﻣﺎ ﻓِﻲ ْاﻷَر‬

ِ ‫ض َوإِ َﻟﻰ ﱠ‬ ِ ‫َ و ِ ﱠ‬
ِ ‫ َﻣﺎ ﻓِﻲ اﻟ ﱠﺳ َﻣ َﺎوا‬8

“To Allah belongs all that is in the Heaven and

Earth. To Allah do all matters return” (Quran 3:109) 8
While al – Mirath connotes the inheritance or succession in
general, Al – Faraid which is used in reference to the subject matter
connotes a fixed share, that is the apportioned shares to the
individual heirs.

Inheritance or succession is the knowledge of rules of Islamic

law which guide on who inherits and who does not as well as what
shares go to the heirs from the property of the deceased (estate) 9.

8. Quran 3 : 109
9. Fiqh Al – Sunnah Vol. 3 Page 498

10

 According to Al – Sabuni, (MA 1993) Al – Mirath or ‘Fard’ is the
legal terminology connoting the process of transfer of ownership of
the estate of the deceased muslim to his surviving heirs in
accordance with the principles laid down by Islamic law. 10

With regards to Ilmul – Faraid, i.e obligatory knowledge, there

are some traditions of the prophet in Hadith books that encourage
muslims to acquire knowledge of inheritance. He instructed that if
care was not taken by muslims on its acquisition they might risk
losses. He also reminded muslims that if muslims deal with Ilmul
Faraid in accordance with their own selfish interests and not in
consonance with the dictates of Allah, they might also risk its loss.

On the basis of this, we refer to the following Hadith of the

prophet (SAW)

1. An Hadith reported by Abdullah Ibn Amr bin AL – ‘As (may

Allah be pleased with both of them) said: Learning is of three
kinds and any learning beside these is only a beauty; a
perfect holy verse, an actual sunnah, and a just religious
obligations11.
2. In another Hadith reported by Ibn Mas’ud (May Allah be
pleased with him) He said the Prophet Muhammad (SAW)

10. AL – Mawarith fi AL – Shariyyati Fi Dhaul AL – Kitabi Wal Sunna; 2nd

Edition Darul Kalami, Beirut.)
11. Narrated by Ibn Majah

11

 said: “Learn your religious obligations (Ilmal Faraid) and
teach them to other people, for I am mortal, and knowledge
will disappear and sedition will appear to such an extent that
once two people disagree about an obligation, they will not
find any one to decide between them” 12.
3. In another tradition reported by Abu Hurairah, referred us to
Prophet Muhammad (PBUH). Abu Hurairah reported the
following, “Learn your religious obligations and teach them
to others. They are half of the knowledge, and knowledge is
forgettable. Besides, it is the first knowledge to disappear
from my Ummah” 13.

The above sayings of the prophet indicate that Estate and

Succession occupy a very high position in Islamic quest for
knowledge.

Administration of Estate and Succession

Before doing anything on an Estate in Islam and anything that

falls under succession, the reasonable and most wise member of the
deceased relations who may be eligible to inherit would now ponder
and ask themselves after condolences for any WILL he or she (the

12. Narrated by Ahmed, AL – Tirmidhi and AL – Hakim.

13. Narrated by Ibn Maja and al – Darr Qutniy.

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deceased) may have left behind to help guide in administering the
Estate. They may equally ask about any credit or debts. The next
thing shall be preparation for his/her burial expenses from his/her
legacy. After meeting all the above listed expenses i.e the will, if any,
is removed, debt, if any, is paid off and credit, if any, is returned, and
all the bequests are taken out, the remainder of the legacy now
becomes the right of the inheritors. On the basis of these, the Quran
in surah 4:12 says “…. After payment of legacy he (or She) may have
bequeathed or debt, so that no loss is caused (to any one)”.

One of the most important principles of Administration of

Estate in Islam is that when all necessities are met, the remaining
portion of the legacy shall now be distributed among the rightful
heirs. This must be seen to be done with assistance from some
muslim Scholars so that every rightful inheritor is given his/her due.
This is because any unnecessary delay in distribution of inheritance
some-times leads to some problems. For instance, death of rightful
sharers may deprive him from enjoying his shares. In some other
cases it leads to litigation which may breed disharmony in a
supposedly peaceful family.

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 Besides these reasons, there may be greedy ones amongst
rightful sharers and even unqualified sharers who may use delay
tactics to deprive the rightful ones their rights. For this, Allah in the
Quran surah 4:10 condemns deprivation of a rightful heir when He
says, “verily, those who unjustly eat up the property of orphans, they
eat up but fire into their bellies and they will be burnt in the blazing
fire.”

Islam warned that the legacy left behind by the deceased

muslim must not be used in ways unacceptable to Islam. It must be
preserved for the rightful heirs to inherit. In other words, when a
muslim dies the ownership of his/her legacy now transfers to his/her
inheritors. For Prophet Muhammad (PBUH) said in a Hadith that
“when the son of Adam dies, his good deeds cease except for three
types: Continuous charity, a righteous son who prays for him, or
knowledge he left behind from which people get great benefit”

On the whole, the Quran (surah Al – Israi) 17:34 says “And

come not near the Orphan’s property except to improve it, until he
attains the age of full strength”.

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Successive Duties Before Administering Estate in Islam

The successive duties before administering Estate in Islam include:

1. Knowledge of the division of inheritance according to Islamic

Jurisprudence (Ilmal Faraid) or obligatory knowledge.
2. The subject matter i.e the Estate which is all that was left
behind by the deceased muslim including monetary cash and
property.
3. Purpose or objective: giving out of the Estate, the share to
every rightful sharer
4. Ruling: it is a collective responsibility (Fardun Kifaya) which
when it is once performed by a group of muslims, it now
becomes a sunnah for others.

Mirath – Related Rights

In this case five rights concerning inheritance shall be listed and they
are arranged according to their importance.

1. The cost of the water (to be used in washing the corpse) the
shroud, the embalming, the fees of the washer, the grave
diggers etc. The costs of these expenses must be deducted
from the main Estate before distribution. 14

14. Inheritance in Islam by A.N.R.C Bukhari, page 8.

15

 2. Related rights to the inheritance itself. This includes debts
incurred by the deceased while alive. E.g failing to pay out
Zakah from his wealth if he is so qualified to offer it before
death overtook him; is the wealth left behind mortgaged and
/or involved in business partnership with others? Are there any
financial problems? All these questions must be addressed
before the legacy is considered for distribution.
3. Another consideration is the debts which are partly related to
inheritance and partly related to the rights of Allah and are
considered to be a compulsory debt left behind by the
deceased. E.g payment of Zakah, kaffarrah (expiations) or hajj
expenditure and that is, if he had capability to perform hajj and
he did not do it in his life time and the debt owed to human
beings e.g having loans from banks, humans etc.
4. The legacy or will i.e one third or less of the Estate left by the
deceased which might have been willed to a non-rightful sharer
in the Estate and / or which might have been willed for “Charity
Projects” such as construction of mosque, provision of pipe
borne water for poor non inheriting relatives and friends etc all
these could fall in this fourth related rights. In Islam, an
inheritor does not share in the will of his Prepositus.

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 The Quran in supporting these dimensions in surah 4:13 – 14
says,

‫ت َﺗﺟْ ِري ِﻣنْ َﺗﺣْ ِﺗ َﮭﺎ ْاﻷَ ْﻧ َﮭﺎ ُر‬ َ ‫ﷲ َو َﻣنْ ﯾُطِ ِﻊ ﱠ‬
ٍ ‫ﷲ َو َرﺳُو َﻟ ُﮫ ﯾ ُْدﺧ ِْﻠ ُﮫ َﺟ ﱠﻧﺎ‬ ِ ‫ﺗ ِْﻠ َك ُﺣ ُدو ُد ﱠ‬
َ‫ص ﱠ‬
‫ﷲ َو َرﺳُو َﻟ ُﮫ َو َﯾ َﺗ َﻌ ﱠد ُﺣ ُدودَ هُ ﯾ ُْدﺧ ِْﻠ ُﮫ‬ ِ ْ‫ َو َﻣنْ َﯾﻌ‬.‫ِك ْاﻟ َﻔ ْو ُز ْاﻟ َﻌظِ ﯾ ُم‬
َ ‫ِﯾن ﻓِﯾ َﮭﺎ َو َذﻟ‬
َ ‫َﺧﺎﻟِد‬
ٌ‫َﻧﺎرً ا َﺧﺎﻟِ ًدا ﻓِﯾ َﮭﺎ َو َﻟ ُﮫ َﻋ َذابٌ ﻣ ُِﮭﯾن‬

“These are the limits (set by) Allah or ordainment as regards

law of inheritance, and whosoever obeys Allah and His Messenger
(Muhammad) (PBUH) will be admitted to gardens under which
rivers flow (in paradise) to abide there-in, and that will be great
success and whosoever disobey Allah and His messengers, and
transgresses His limits, He will cast him in the fire, to abide there-
in and he shall have a disgraceful torment”

The above verse shows how the issue of willing to a legal

inheritor is condemned by Allah and His messenger.

5. The fifth related right of inheritance is in consonance with the

dictates of Allah (SWT) where He said in surah 4:12 “After
payment of legacies he (or She) may have bequeathed or debts,
so that no loss is caused to (any one)”.

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 Accordingly after satisfying the fifth related right, the
Ashabul Faraid must be the first to receive their legal shares.
Whatever remains as residue now goes to the paternal heirs
(Asaba). This view is supported by the statement from the
Prophet (PBUH) where He said, “Give the Faraid (the share of
the inheritance that is prescribed in the Quran) to those who
are entitled to receive them, and whatever remains should go
to the closest male relatives of the deceased” 15.

See also Suratul Anfal 8:75 where Allah said, “Blood relatives
are nearer to one another (regarding inheritance) in the decree
ordained by Allah”. It is only where there are no heirs at all that
Estates go to the public treasury (Baitil Mal) in Islam.

Estate and Its Administration

Once a muslim dies, his proprietary interest by way of assets

and liabilities is referred to as his Estate or legacy. The Arabic word
for it is AL – Tarkah literally means “to leave behind”. It originates
from the Arabic root “Ta – Ra – Ka. Estate refers to all items of
property, movable or immovable left behind by a deceased
Muslim”.16

15. Inheritance in Islam by Abu

16. Ambali M.A.” The Principle and Practice of Succession under Islamic
Law”. Page 114 ANJC, 2003

18

 The Estate left by a deceased muslim is not always the whole
legacy that could qualify immediately for distribution by the
administrator. However, for the purpose of sharing it to the heirs, it
is not the gross estate but rather the net estate that qualifies as the
share-able estate. The net estate is determined by deducting or
removing the following from the gross estate:

1. Deposits: this includes the return of deposits, pledges and

security in the custody of the deceased. These shall first of all
be taken out of the gross estate. All such items under his care
after ascertaining them must be taken out of the estate and
returned to the original owners so as to know the actual
estate.17 Also certain property which the Sharia makes unlawful
cannot form part of inheritance or deceased estate in Islam
even though it might be under his possession during his life
time. Such wealth could be those acquired through Haram
(forbidden) means e.g gambling, prostitution, bribery,
brigandage theft etc. Such properties are not regarded as
qualified estates for Islamic inheritance. If an asset was pledged
or mortgaged as security for a debt by the deceased muslim,
such asset cannot form part of the estate for inheritance. Any

17. Ambali M. A. Ibid

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 Insurance/endowment policy(s) which encourages Riba or such
other unislamic contract(s) cannot form part of qualified estate
for inheritance in Islam. 18
In Islam, only the actual sum of premium paid by the
deceased constitutes part of the qualified estate. Right in
Business partnership enjoyed in business by the deceased
ceases after his death. His inheritors could only inherit his share
in the business enterprise. Any continuous profit, loss or gain
after the death excludes the inheritors.
2. Debt: even if all burial expenses are expended and removed
from the gross estate; the deceased’s creditors if they remain
still have rights on the estate or legacy left behind by the
deceased. What are these types of debts? Debt could be the
one which was confirmed by the deceased before some
members of his family or through the testimony of witnesses or
the one known by all people around the deceased. A debt could
also be confirmed by the deceased before he died and even if
there is no witness. If there is ascertained debt without any
doubt, it is paid off from the estate. If after burial expenses and
payment of the ascertained debt there is not enough left to pay
his creditors again, the remaining estate could be given out as

18. Hajiya Sariyu Balogun – Abdul Majeed: “A Glimpse AT INHERITANCE”.

Pages 157 and 158 “Issues Affecting Muslims”

20

 advanced payment to the creditors. The rest debt could be
waved or left till hereafter. In Islam it is not a must for the
would-be inheritors to pay the debt incurred by their deceased
relatives through their nose i.e through their hard earned
resources. If they decide to do so, it is Charity. From one
statement of the Prophet Muhammad (SAW) he said, “The
Shaheed (Martyr) will be forgiven all his sins but debt” so if the
inheritors do this charity, it shall liberate the deceased from the
burden of debt in the grave and Hereafter. Other categories of
debts have been earlier mentioned e.g Zakat, Salat unsaid,
Sawm, Hajj etc. 19
It should however be noted that in an ideal Islamic
Community, where the Tarika cannot settle the debts and the
relations are unable to settle such debts, the responsibilities for
settling such debt shift to Bait al – mal.

Administrator of Estate in Islam.

Preferably, he should be a free male, God fearing Muslim or

person who is conscious of the fact that he too would die one day
and leave behind estate and heirs. These qualities flow from the
contents of the Holy Quran:

19. “Issues Affecting Islam and Muslims” AL – Maslaha: Journals of Law

and Religion. By NAMLAS, Unilorin Vol. 4, page 160 – 162, 2007 – 2008

21

 َ ‫ِﯾن َﻟ ْو َﺗ َر ُﻛوا ِﻣنْ َﺧ ْﻠﻔ ِِﮭ ْم ُذرﱢ ﯾ ًﱠﺔ ﺿِ َﻌﺎ ًﻓﺎ َﺧﺎﻓُوا َﻋ َﻠﯾ ِْﮭ ْم َﻓ ْﻠ َﯾ ﱠﺗﻘُوا ﱠ‬
‫ﷲ َو ْﻟ َﯾﻘُوﻟُوا َﻗ ْو ًﻻ َﺳدِﯾ ًدا‬ َ ‫ َو ْﻟ َﯾ ْﺧ‬
َ ‫ش اﻟﱠذ‬

“And let those (Executors and Guardians) have the same

fear in their minds as they would have for their own,

if they have left weak offspring behind. So let them fear
Allah and speak right words”.20
General Principles

The general principles of inheritance are obtained in the verse of the

Quran Suarah 4:7 where Allah says “From what is left by parent and
those nearest relation, there is a share for men and a share for
women, whether the property is small or large, a determined share”

From the above verse five legal implications / principles could

be deduced, namely:

1. The inheritance covers both men and women unlike the period
before the advent of Islam when women were not qualified to
inherit from the estate of their deceased relatives. Even today
in Nigeria, many traditions still exclude women from
inheritance and are considered as part of the estate meant for
inheritance.

20. Quran 4 : 9

22

 2. The second implication is that, no matter how little a deceased
person’s property might be, it must be distributed justly
amongst the heirs.
3. The inheritance applies to all kinds of property, movable or
immovable or any other kinds.
4. The question of inheritance arises only when the deceased has
left behind any property.
5. The nearer relation precludes the distant relation from the
inheritance.

Pre – Conditions or Requirements for Inheritance.

The Arabic term for condition that must exist for inheritance to
take effect is known as “Shurut al – Irth”. These conditions are:

1. Death of the prepositus must be confirmed or a competent

court must have declared him/her to be missing. (mafqood)21
Upon credible evidence that he is absent from his usual place
of abode for a long time and nothing has been heard from him.
2. The existence of Heirs who must be proved to have survived
the deceased no matter how short the interval might be.
3. There must be an Estate (property) to be inherited.

21. Quran Surah 4 : 176

23

 4. The nexus (relationship) between the deceased muslim and the
heir apparent which qualifies the later to inherit the former
must be established22. This relationship usually is on account of
either Nasab, Zawaj or Wala.

Impediments to Inheritance.

In Islam, there are some grounds that disqualify an otherwise

qualified heir from inheriting the estate of his / her deceased
relation. These are:

1. Differences or change in religion: Based on the Hadith which

says that a muslim cannot inherit an unbeliever and vice versa,
the four Sunni Schools are agreed that a muslim shall not
inherit from non muslim and vice versa. The Prophet (PBUH)
said, “ A muslim does not inherit a non – muslim, neither does
a non – muslim inherit a muslim”.23
2. The second restriction or impediment is Slavery (male and
Female). Slaves cannot inherit neither can they be inherited in
Islam. The reason is because whatever the slaves possess
belong to their masters. One of the exceptions however is that,
a freed slave can be inherited by his Master and no vice – versa.
Provided that the freed slave has no relation(s).
22. As – Sayyid Uthman Al-Malik (1402/1982): Sirajus Salik, commentary
on Ashahul Masalik, darul Fikr, Lebanon, Vol. 11 page 104; Jatan V.
Mai
lafia of (1998) 1 NWLR (535) P.693 (SC)
23. Fathu Al - Bari
24

 3. Killing or Murder prevents the killer from inheriting the
murdered whether such action was pre-meditative or by
mistake, even if he is the legators son. This is supported by a
saying from the Prophet (PBUH) where he said, “The killer does
not inherit anything”24. According to some jurists, there is one
case called “Common mistake”. It is a situation where two or
more people got involved in the course of a legator’s death by
mistake e.g motor accident where the driver may be an
inheritor of the deceased. In this case the rate of the driver’s
mistake is deducted from his share and distributed among the
rest of the inheritors. After the deduction, what remains is his
final share.25
4. Still Birth: a still born child delivered dead shall neither inherit
nor be inherited.
5. Lian: in accordance with the Quran Surah 24:6-7 both the
mother and the father of the child disowned by the later shall
not inherit themselves. So also are the child and the disowning
father.
6. Bastard: A child born out of lawful marriage cannot inherit the
father but only the mother.

24. Narrated by Abu Daud
25. Inheritance in Islam by Abu Isam, P.33, Opsit.

25

Acknowledged relations

“Islamic law allows the acknowledgement of paternity and once it

occurs such an acknowledgement of paternity will establish full rights
of inheritance as between father and the acknowledged son as
against all other relations”. See “Verma” opcit in Ruxton.

This is because the person so acknowledged here is of blood relation.

SHARES, THEIR PROPORTIONS AND BENEFICIARIES.

There are two classes of shares and sharers namely; Faraid and
Asaba or “Far’D” and SI’B.

Inheritance by “FarD” is the share prescribed in the Holy Quran

while inheritance by “SI’B” is the fact of distributing what remains,
after all prescribed shares are distributed, among the closest male
relatives of the deceased. 26

Inheritance by “SI’B” means the inheritor is not among those

who were prescribed in the Quran.

26. Abu Isam. Ibid, P.13

26

 “FURUD / FARAID” HEIRS
The Prophet (PBUH) said, “Give the Faraid to those who are
entitled to receive them. Then, whatever remains should be given to
the closest male relative of the deceased (Fathu Bari, 12/11) 27.

Faraid therefore connotes fixed percentage of an estate due to

individual heirs as done by Allah’s injunctions in the Holy Quran
Surah 4 verses 11, 12 and 174.

There are six sharers under this class namely; a half (1/2); a
fourth (1/4); an eight (1/8); a third (1/3); a two third (2/3) and a sixth
(1/6).

The table below shows the above fractions the sharers and the
basis of their allotted shares.

FRACTION SHARER(S) BASIS OF SHARES

½ a. Husband In absence of any child by wife

b. Only daughter In absence of brother to agnatise

her.

c. Only son’s No direct son of the deceased.

daughter. No brother to agnatise this son’s

27. Fathu Bari, 12/11

27

 daughter.

d. Full sister No child or grandchild of the

deceased to bar her. No other

sister or brother of equal status.

No father or grandfather of the
deceased.

e. Consanguine sister Same as full sister above.

¼ a. Husband In absence of child or grandchild.

b. Wife/Wives In absence of child or grandchild.

1/8 Wife/Wives In presence of child or

grandchild.

1/3 a. Mother In absence of child and

grandchild. In absence of more

than one brother or sister.

b. Plurality of uterine In absence of father, child and

brothers and provided they are not less than
sisters or two.
combination of

28

 both.
2/3 a. Daughters In absence of brother to agnatise
them.

b. Son’s daughters In absence of direct male child or

grandchild.

c. Full sisters
In absence of brother to agnatise
them, absence of deceased’s
father to bar them.

1/6 a. Father In presence of son, daughter or

son’s son.

b. Mother Presence of son or son’s son.

c. Son’s daughter Presence of daughter.

d. Grandfather Presence of a daughter.

e. Consanguine sister Presence of germane sister
f. Maternal Maternal/paternal
grandmother grandmother’s co-sharers.
g. Uterine brother/ In absence of son, true
sister grandfather or daughter.

29

‘Furu’D’ people are ten: Husband, Wife (or wives), Mother, Father,
Grandfather, Grand Mother(s), Daughters, the son’s daughters, full
sisters and the mother’s children.

Let us look at how each Far’D’s share is administered:

i. Husband’s inheritance. The husband inherits from his wife’s

estate one half (1/2) of her legacy if he survives her and she
has no children of her own nor children’s son(s) where the
late wife has children or sons living, the stake of share for the
husband returns to ¼. This is whether they belong to the
surviving husband or previous one. See Quran 4:12, Allah
said,
َ ‫َو َﻟ ُﻛ ْم ِﻧﺻْ فُ َﻣﺎ َﺗ َر َك أَ ْز َوا ُﺟ ُﻛ ْم إِنْ َﻟ ْم َﯾ ُﻛنْ َﻟﮭُنﱠ َو َﻟ ٌد َﻓﺈِنْ َﻛ‬
‫ﺎن َﻟﮭُنﱠ َو َﻟ ٌد َﻓ َﻠ ُﻛ ُم‬
ٍ ‫ﯾن ِﺑ َﮭﺎ أَ ْو دَ ﯾ‬
‫ْن َو َﻟﮭُنﱠ اﻟرﱡ ُﺑ ُﻊ ِﻣﻣﱠﺎ َﺗ َر ْﻛ ُﺗ ْم‬ َ ِ‫اﻟرﱡ ُﺑ ُﻊ ِﻣﻣﱠﺎ َﺗ َر ْﻛ َن ِﻣنْ َﺑﻌْ ِد َوﺻِ ﱠﯾ ٍﺔ ﯾُوﺻ‬
‫اﻟﺛﻣُنُ ِﻣﻣﱠﺎ َﺗ َر ْﻛ ُﺗ ْم ِﻣنْ َﺑﻌْ ِد َوﺻِ ﱠﯾ ٍﺔ‬ ‫ﺎن َﻟ ُﻛ ْم َو َﻟ ٌد َﻓ َﻠﮭُنﱠ ﱡ‬
َ ‫إِنْ َﻟ ْم َﯾ ُﻛنْ َﻟ ُﻛ ْم َو َﻟ ٌد َﻓﺈِنْ َﻛ‬
‫ت‬ ٌ ‫ث َﻛ َﻼ َﻟ ًﺔ أَ ِو اﻣْ َرأَةٌ َو َﻟ ُﮫ أَ ٌخ أَ ْو أ ُ ْﺧ‬
ُ ‫ُور‬
َ ‫ﺎن َر ُﺟ ٌل ﯾ‬ َ ‫ْن َوإِنْ َﻛ‬ٍ ‫ُون ِﺑ َﮭﺎ أَ ْو دَ ﯾ‬َ ‫ُﺗوﺻ‬
ْ‫ث ِﻣن‬ ‫ﺷ َر َﻛﺎ ُء ﻓِﻲ ﱡ‬
ِ ُ‫اﻟﺛﻠ‬ َ ‫َﻓﻠِ ُﻛ ﱢل َوا ِﺣ ٍد ِﻣ ْﻧ ُﮭ َﻣﺎ اﻟ ﱡﺳ ُدسُ َﻓﺈِنْ َﻛﺎ ُﻧوا أَ ْﻛ َﺛ َر ِﻣنْ َذﻟ‬
ُ ‫ِك َﻓ ُﮭ ْم‬
‫ﷲ َو ﱠ‬
‫ﷲُ َﻋﻠِﯾ ٌم َﺣﻠِﯾ ٌم‬ ِ ‫ُﺿﺎرﱟ َوﺻِ ﯾ ًﱠﺔ ﻣ َِن ﱠ‬
َ ‫ْن َﻏﯾ َْر ﻣ‬ ٍ ‫ُوﺻﻰ ِﺑ َﮭﺎ أَ ْو دَ ﯾ‬
َ ‫َﺑﻌْ ِد َوﺻِ ﱠﯾ ٍﺔ ﯾ‬

"In that which your wife’s leave, your share is a

half if they have no child, but if they live a child,
you go a forth of that which they leave"

30

The following can illustrate how a husband’s share in inheritance
could be administered in Islam. E.g:

a. A woman died and left behind a husband and a father. Here

the husband gets half (1/2) of the property while the father
takes the rest.
b. A situation where the woman has a son with her husband
surviving her, the husband takes a fourth (1/4). The surviving
son is of secondary affinity so his existence reduces the
husband share from ½ to ¼
ii. The wife’s inheritance: the wife’s share if she survives her
husband is ¼ where the husband left no issue(s) and 1/8 (one
eight) of the legacy where her husband left issues. The Quran
in surah 4:12

"…in that which you leave, their (your wives)

share is a fourth if you live no child, but if you
leave a child, they get an eight (1/8) of that
which you leave…"
The following examples could suffice to show how a wife’s share in
inheritance is administered. A man died and left behind a wife and
his father. The wife takes ¼ of the property because there is no Heir
or no son by the husband. But where a son(s) exist, her share

31

becomes 1/8 according to Quranic allotment. Where the wife’s are
more, they co-share.

iii. Mother’s inheritance: mothers being a Quranic sharer inherit a

third (1/3), a sixth (1/6) and/or the remaining third (1/3). The
mother inherit 1/3 in three ways:
a. Where the deceased son or daughter has no issue.
b. Where the deceased although having no issue, still does
not have brothers or sisters, she still retains her 1/3 share.
c. She inherit again the remaining 1/3 where the inheritors
beside her are:
i. Husband, mother and Father, and
ii. Where the inheritors are wife, mother and father.

No sharer excludes the mother. The last discussion is based on the

logic of Ummayriyyah based on the independent reasoning
propounded by Umar bn Al – Khattab (may Allah be pleased with
him).

Example: A woman died and left behind her husband, a mother, and
a father. The inheritance is divided into six Qirats (measures). First
the husband takes ½ of 6 = 3 then the mother takes 1/3 of the

32

remaining three Qirat which is 1/3 while the father takes the rest two
Qirat.

iv. Father’s inheritance: A father being among the Heirs who

inherit by ‘Far’D’ can inherit by Fard, Si’B and by both at a
time. Where the deceased son or daughter has male issues,
his share is 1/6. That is why in Quran 4:11 Allah says, “For
parents, 1/6 share of inheritance is to each if the deceased
left children”. Father inherit by Ta’sib, where the deceased
did not leave behind any son or sons from secondary affinity,
then after the mother’s share of 1/3 is taken, the remainder
2/3 goes to the father. See the same Verse 11 of Surah 4
where Allah says,
ُ
‫ْن‬ ِ ‫ْن َﻓﺈِنْ ُﻛنﱠ ﻧ َِﺳﺎ ًء َﻓ ْو َق ْاﺛ َﻧ َﺗﯾ‬ ِ ‫ﷲُ ﻓِﻲ أَ ْو َﻻ ِد ُﻛ ْم ﻟ ﱠِﻠذ َﻛ ِر ﻣ ِْﺛ ُل َﺣ ﱢظ ْاﻷ ْﻧ َﺛ َﯾﯾ‬‫ﯾُوﺻِ ﯾ ُﻛ ُم ﱠ‬
‫ت َواﺣِدَ ًة َﻓ َﻠ َﮭﺎ اﻟ ﱢﻧﺻْ فُ َو ِﻷَ َﺑ َو ْﯾ ِﮫ ﻟِ ُﻛ ﱢل َوا ِﺣ ٍد ِﻣ ْﻧ ُﮭ َﻣﺎ‬ ْ ‫َﻓ َﻠﮭُنﱠ ُﺛﻠُ َﺛﺎ َﻣﺎ َﺗ َر َك َوإِنْ َﻛﺎ َﻧ‬
‫ﺎن َﻟ ُﮫ َو َﻟ ٌد َﻓﺈِنْ َﻟ ْم َﯾ ُﻛنْ َﻟ ُﮫ َو َﻟ ٌد َو َو ِر َﺛ ُﮫ أَ َﺑ َواهُ َﻓ ِﻸ ُ ﱢﻣ ِﮫ‬ َ ‫اﻟ ﱡﺳ ُدسُ ِﻣﻣﱠﺎ َﺗ َر َك إِنْ َﻛ‬
ُ
‫ْن‬ٍ ‫ﺎن َﻟ ُﮫ إِ ْﺧ َوةٌ َﻓ ِﻸ ﱢﻣ ِﮫ اﻟ ﱡﺳ ُدسُ ِﻣنْ َﺑﻌْ ِد َوﺻِ ﱠﯾ ٍﺔ ﯾُوﺻِ ﻲ ِﺑ َﮭﺎ أَ ْو دَ ﯾ‬ َ ‫ث َﻓﺈِنْ َﻛ‬ ‫ﱡ‬
ُ ُ‫اﻟﺛﻠ‬
‫ﺎن‬ َ ‫ﷲ َﻛ‬ َ ‫ﷲ إِنﱠ ﱠ‬ ِ ‫ﯾﺿ ًﺔ ﻣ َِن ﱠ‬ َ ‫ون أَ ﱡﯾ ُﮭ ْم أَ ْﻗ َربُ َﻟ ُﻛ ْم َﻧ ْﻔ ًﻌﺎ َﻓ ِر‬ َ ‫آ َﺑﺎؤُ ُﻛ ْم َوأَ ْﺑ َﻧﺎؤُ ُﻛ ْم َﻻ َﺗ ْد ُر‬
‫َﻋﻠِﯾﻣًﺎ َﺣﻛِﯾﻣًﺎ‬
“…if he left no children, and his parents are the only heirs,
the mother has a third.”

33

The following examples could illustrate it: Inheritance by Far’D, the
father inherit 1/6 where a son of secondary affinity or son’s son exist.
When the son’s daughter survives her father and the father of this
deceased son also survived him, the surviving father inherit 1/6 by
Far’d while after the daughter’s ½ is taken, the remainder goes back
to the father again as share by Si’B. The father remains a sharer in all
these cases. No existence of any issue can deprive him of any of his
shares, when Si’B share is deprived, he returns to his 1/6.

v. Son’s inheritance: it should be noted that “Son” as a principal

sharer is not mentioned directly in the list of heirs by the
Quran although son is the most important heir among the
children mentioned by the Quran. Holy prophet Muhammad
(PBUH) said, “whatever is left after giving away the share to
the mandatory heir goes to the son”.28
It should be recollected that the mandatory sharers include
the son, so where all have taken their shares, whatever
remains as residue is again given to the son. See Quran
Chapter 4:12.

Others are the grandfathers and the grandmother’s

inheritance with the following examples:

28. Bukhari, Kitab-ul- Faraid

34

 vi. Grandfather: His position is similar to that of father as long as
there exist none who can deprive him, such as existence of
the actual father of the deceased. Automatically the
deceased father shall deprive the grandfather of the right to
inherit his grandson.
vii. Grandmother’s inheritance: To administer an estate where
the grandmother survives the grandson, she cannot inherit
where the mother is still alive. The grandmother is not
among the prescribed heirs.

Sons:

When a son is alone without any competitor he takes the whole

estate but where parents of the father, wife, father or grandfather
survive, the son takes what remains after these might have had their
shares. A son’s son takes the place of the deceased son when there is
no son. Where there are sons and daughters, they will share in the
ratio of two to one (2:1) i.e the male taking two while the female
takes one.

Daughters:

Where only the daughter survives, she takes half of the estate
but if they are more than one they share in the 2/3 (two thirds of the

35

estate). This is a very serious revolution under the prophet in the
sixth Century AD when womenfolk were liberated by this singular
divine law. Here is the story and it runs thus:

"The wife of Sa’ad bn al-Rabi came to the

prophet with her two daughters and said, “O!
Prophet these are the daughters of Sa’ad Al-
Rabi. Their father died a Martyr, in the battle of
Uhud. But their uncle has taken Sa’ad’s estate
and they cannot marry unless they have
property"
It was after this report, the verse of inheritance was revealed to
Prophet Muhammad (PBUH). He immediately sent for Sa’ad and told
him about the divine law. He said, “Give the two daughters of Sa’ad
2/3 of the estate, give their mother 1/8 and keep the remainder to
yourself”. In this revelation, women and daughters who were part of
the estate meant for inheritance in the Pre-Islamic Arabia and even
today in part of Nigerian traditions and customs became liberated by
Islam. They were made to co-share with their men counter-parts in
any given legacy.

Granddaughter:

In the absence of daughter, the son’s daughter and where they

are two or more they are treated as daughters. Where there exist, a

36

daughter and a son’s daughter, the daughter takes half of the estate
while 1/6 is for the son’s daughter. Where they are more than one,
they still co-share in the one sixth (1/6). Where the daughters are
two or more, the son’s daughter shall receive nothing unless there is
with her a brother. It is only by this “Ta’asib” she can share the
residuary with both on the basis of 2:1 ratio.

Sisters:

A sister germane i.e full sister take ½ of an estate but if brothers

exist alongside with them, they share the property accordingly i.e
male taking double of female. Where the sister exists with daughter
of the deceased, the daughter first takes ½ or 2/3 if they are two or
more while the sisters take the residuary if any, i.e Asaba. 29

Where there exist, the father, the daughter or son, the sisters
are excluded unless there is a male with consanguine sisters, it is
then they take the residue. Full sister usually eliminate the
consanguine sister if there is no male (Asaba) to retain them.

Brothers and Sisters Uterine:

In the case of brothers and sisters uterine, the share is 1/6 and
where they are more, the share is 1/3, all of them having equal share.

29. Justice Yunus Abdallah. “Succession under Islamic Law: Issues,

Controversies and Solution”. Page 136

37

However, where there exist a father, a son, a son’s son, the paternal
grandfather of the deceased, the uterine brothers and sisters are
excluded.

Brother Germane and Consanguine. Where either of these two exists

alone, and no other relative the brother germane or the brother
consanguine takes the whole estate but where the two co-exist or
more the germane brother excludes the consanguine, where there
are other sharers along with the brother, either consanguine or
germane, the brother always wait for the residue. The above decision
is derived from the ruling that preference is given to the full blood
over the half blood.

ASABAH OR “TA’SIB

This connotes residuary heirs. Allah, (SWA) divided inheritors of

estate into two groups. The group of six whose shares in the
inheritance are fixed which we have already discussed and referred
to as ‘Far’D”. The other groups are those that the remaining estate
after the fixed shares is given (such heirs are known as ASABAH).
This group inherits by Ta’sib. “Asabah” is the plural of Asib while
Ta’sib is a noun form from the verb Asaba, Ya’sib means “to

38

surround and hold”. When we hear Usbatur Rijal in Arabic, it means
“a group of men who surround, help and protect each other”.30
Asaba therefore connotes Residuary heirs as it has its root in Hadith
which says: “Apportion the specific shares of the estate to those
heirs entitled to them and whatever portions remain thereof should
be taken by residuary male heirs”.31

Asaba are of three kinds: -

1. Asaba by itself: Asabah by the self means every male who has
no female link between him and the deceased. If there are
fixed sharers, he takes the residue. Where there are no fixed
sharers, he takes all the estate. If the fixed sharers take all the
inheritance as their shares, the Asabah has lost. By Ta’sib, the
most close to the deceased shall be the one to inherit. Where
they are many, the closest relative inherits. If they are equal
status in relation to the deceased, those who have the
strongest tie to the deceased shall inherit him. Where they are
equal in kinship and strength of tie to the deceased, they now
inherit together by Ta’sib. Example of this case could be: A man
left behind three children and four full brothers, the children

30. “Inheritance in Islam” by Abu Isam, Opsit Page 26

31. Al – Mawarith Fil Shar’iats Islamiyyah, page 33

39

 taking 2/3 of the property while the residue goes to the four
full brothers which they are to share equally.
2. The second group is ‘Asabah’ by others: for example, any
female whose share is 1/6 among the fixed sharers can share
the residue by the existence of Asib who is male and who is of
equal rank in relationship with the deceased. The female e.g
son’s daughter, full sister or daughter, if there is a son, son’s
son or a brother amongst them, the females cannot inherit by
Ta’sib with the existence of the male Asabah. This group
inherits therefore as ‘Asabah by others’.
3. Asabah with others: In this case, fixed sharers like daughter or
son’s daughter are in existence with other relatives like full
sisters or half-sisters. When the fixed sharers like the daughter
exist, she now stands in the position of Asabah to make the full
sisters or the half-sisters have share in the residue of the
estate. In this case, it is the heirs whose link does not have any
female link with the deceased that have helped the others to
inherit by Ta’sib.
a. Evidence for ‘Asabah’ by the self can be found in surah
4:176, see also 4:11

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 b. Asabah by others. E.g, a man died and left behind a wife, a
son, and two daughters. The wife gets one eight (1/8)
because of the existence of an heir from the secondary
affinity, the rest goes to the son and daughters, with a
double portion to the male.
c. Asaba with others. Example: A man died and left behind a
mother, two daughters and a full sister. In this case, the
mother is 1/6, the two daughters 2/3 and the full sister takes
the residue. The existence of the sister have shown that no
female link between her and her brother. So, she has an
Asabah shares with other Asabahs.

Issues:

Some social critics criticize the issue of making female

daughters taking half of that of male. Some call it inequality amongst
genders. Many Islamic Scholars have tried to explain the stand point
of Islam.

First of all, the society that Islam wishes to establish amongst

humans must be understood and the duties of individual human
species be properly understood. The male is given the responsibility
to maintain the household. All necessities of the home are to be

41

provided by the male and even the female member of the family is to
be catered for by the male.

When the female member in an Islamic family is in her home

she is maintained according to law by the male member and when
she marries, her responsibility transfers to her husband in her
matrimonial home. Her feeding, clothing, shelter etc. is to be catered
for by her male counterpart. In this wise, she is always under the care
of males. If she returns from her husband’s place to her parent’s
home, the male relations there take care of her needs. This is Islamic
way of life.

Unlike our present day life, where individual tendency overrules

our lives and the tendency to involve women in the feeding of
household, provision for the needs of the children, sharing in
providing feeding for the family etc are the issues of the day. Islam
gave the female the right to have access to education, to use her skill,
to contribute her quota to societal upliftment but not that she will be
victimized. That is why the man is given more responsibility. Even in
his own share, the female must be maintained and it is not a rule that
her share in the estate could be used for upkeep of the family.

42

 If we go back to the issue of inheritance, judging by the case of
the wife of Sa’ad al-Rabi and the uncle of her daughters, one finds
that women were treated equally. Sa’ad’s wife saw the heavy load
confronting her in the maintenance of her daughters who just lost
their father and bread winner of the family, the uncle following Pre-
Islamic custom decided to usurp all the estate and Allah solved the
issue through the revelation. In this case, the two daughters share
was 2/3 of the estate while the mother’s share was 1/8 of the
property and the remainder went to the uncle. Daughters had 16/24,
mother had 3/24 while the uncle had 5/24. In this calculation, only
the females have the majority share. No irregularity here and it did
not prevent the uncle from being the guardian of these children. In
some cases we see where both parents (father and mother) have
equal share of 1/6 of an estate each. All these show how Islam cared
for female rights.

Islam rules that before marriage, the man must pay dowry and
without dowry, no proper marriage in Islam. This dowry is an asset
and it is an exclusive property for the woman. It could be used as her
capital for future business. Unlike the woman, the man is saddled
with many obligations and liabilities to shoulder for the good of the
household.

43

 In administering estate and succession in Islamic law the
following issues later emanated. These issues include the doctrine of
AWL, the doctrine of Radd and the case of Mafquud (missing person)
and that of the Hermaphrodite and the Foetus etc.

Doctrine of AWL: Awl means proportionate reduction. This

principle came into being when Khalifah Ali bn Abi Talib was
delivering a lecture (Friday Khutbah) in Medina. He was on the Pulpit
(Minbar) and a question by a muslim woman was asked and that’s
why this narration was referred to usually as the Minbariyyah case.
She asked Sayyidinah Ali, “what is the wife’s share in inheritance
when her deceased husband left behind both parents and his two
daughters” Ali according to this narration promptly answered that
the wife’s share instead of 1/8 now becomes 1/9.

Under normal circumstances, the two parents are Quranic heirs

so they have 1/6 each, with the 1/6 each way, the estate remains
2/3. Two daughters share shall be 2/3 of the remainder thus making
the whole estate exhausted. Now the “wife” who was among the
survivors is a Quranic heir who cannot be excluded. To let her have
her share the LCM denomination of 24 has to be increased to 27 as
the principle of AWL.32

32. Ustaz Yunus Abdullah. “Succession under Islamic Law, Issues,

Controversies and Solutions”. Page 138 – 139


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 AWL is a development in Islamic law meant to deal with issues
not covered by the primary sources of Islamic Law, e.g where the
estate of a wife is to be shared by the following successors, a
husband and two sisters under normal circumstances, the husband, a
“FarD” sharer, shall take ½ of the estate as his share while the sisters
share, according to the Quran, is 2/3. What happens here is the
existence of shortage and not residue. Whichever share one wants to
start with there shall be shortage in meeting the Quranic
prescription. This issue or challenge started under Caliph Abubakar
As-Sadeeq and with consultation with some of the Sahaba, they
arrived at the doctrine of AWL. This doctrine is the idea of
maintaining the original fractional share and increasing the
denominator. 33

Ar – Radd: meaning proportional return or redistribution of the

surplus of the estate where only Quranic sharers exist and they take
their allotted shares and the estate still remains, that residue
according to Maliki School should be returned to the public treasury
for public use while other schools viewed that it should be returned
to the existing sharers if there are no agnatic or residue sharers
available instead of Baitil-Mal. This redistribution theory is only

33. “The Principles and Practice of Succession under Islamic Law” by M. A.

Ambali; page 144 – 145

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applicable to Zhawilarham (blood relatives of the deceased person)
as the wife and husband are not participating.

Issue of Foetus: A woman may be under pregnancy when she

loses her husband. As no one knows what gender the child may be
and whether it may be a still – born, it is assumed that the child will
be born a male. When the estate is administered upon, the Foetus
share shall be a share to a male heir. If per chance, the child turns to
be female the share of female is resorted to i.e half of it and the
other half is taken back to the other sharers proportionately. 34

However, the most favoured view of the Malik’s School on this issue
is that the distribution of the estate be suspended pending the birth
of the child.35

Issue of Al – Mafquud (Missing person): Where a person

disappears without being heard of for a long time and after many
inquiries no news about his where about, such a person could be
declared missing by the court of law.

Two issues must be established before declaring anything.

1. It must be established that there is no information what-so-

ever about him.

34. Ustaz Yunus Abdallah, Page 140 Ibid

35 Doi, A. I.; “Sharia, The Islamic Law”. www.asmislamicbooks.com; (ND) P.273.

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 2. Many years might have passed and still no information. The
time allowed by Maliki school to elapse before one could be
declared missing is seventy (70) years while other Sunni
schools unanimously agreed that the year should be
between ninety (90) years and one hundred and twenty
(120) years before such declaration. In Islamic law of
inheritance, it is after this that the missing person’s estate
could be shared amongst his inheritors. Where the missing
person (Al – Mafqud) is the inheritor, his share shall be
reserved till he is found and if he could no more be found, his
own inheritors takes over his shares.36

Hermaphrodite: A great sign of Allah’s power of creation is the

creation of human species known as ‘Hermaphrodite’. This sort of
human being is neither a complete male nor female. Nobody can
decide to which gender this specie belongs until the age of puberty.
When inheritance of an estate is being administered, the Jurist
viewed that it should be counted as male. To detect which gender, if
it is found that it menstruates through the female organ and there is
feminine growth of the breast, it is then considered as female. If on
the other hand, it shows signs of manhood i.e. have moustache and
change in the voice, then it is male. As for the share of inheritance, if

36. See: Colson Opsit page 198

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it turns to be female, half of the share allotted shall now be given to
him while the other half be shared between the other inheritors in
accordance with their due shares. 37

Conclusion:

In the foregoing pages and paragraphs of this discourse, we

have attempted to explain the concept of administration of estates
and succession under Islamic Law.

We particularly tried to look at the primary sharers of

inheritance who are referred to as Ashab al-Furud (prescribed heirs)
and how their status and existence affect inheritance as an institution
in Islam. We also looked at the institution of Asabah (agnatised
inheritors in Islam) and how these groups affect Islamic inheritance.
Other issues pertaining to homicide where a propositus got killed by
a legal inheritor (a successor), a missing inheritor and/or a missing
propositus, a case of Hermaphrodite or lian (a disowned child by a
father by way of legal oath), illegitimacy, slavery and master
propositus etc. All these listed are relevant categories of sharers of
the Estate that may be left behind by their deceased legator.

37: Abu Isam, Ibid

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 On the whole, what we refer to as estate and succession in
Islam call for serious studies by all stakeholders with a view to
understanding what constitute the content and context of
inheritance in Islam. This is because no family is exempted from
death and what prevails after. Therefore, without any clear
understanding of Sharia Law on administration of estate and
succession, an inheritor may be misguided to take a share either
below or more than the prescribed share for him/her by Allah which
consequence is very grave in line with Surah Nisa’i verse 10

“Verily those who unjustly eat up the property of

orphans, they eat up but fire into their belies, and
they will be burnt in the blazing fire”. (Q4:10)

For this reason, the Almighty Allah decreed that estates left
behind by the deceased Muslims be shared for the benefit of its legal
inheritors and in the right quantity.

Under the issue of legal exclusion from inheritance, we see that

in cases concerning differences in religion, since a non-muslim may
not allow Muslim to succeed him as heir and vice versa, the Prophet
(PBUH) was reported to have even said, “Neither does a Muslim
inherit a non-believer nor does a non-believer inherit a muslim”. This

49

is the Islamic rule on Estate and succession. Some notable scholars
like Dr. Tabi’u hold that “The basis of rules governing inheritance in
Islam is centered on reciprocity”. That is to say that in line with the
tenets of Islamic personal law, a non-muslim may not allow a muslim
heir to succeed him/her or vice versa.

Also, a muslim child or son who converted to Christianity or any

other religion ceases, according to Islamic law of inheritance, to be a
heir to the estate of a muslim father/mother who died a muslim.
Similarly, a muslim parent cannot legally inherit his son if the son dies
as a Christian. The only exception where each could succeed in
either’s estate is through will.

In Islam, a muslim is free to make a will to non-inheritor(s) of

his/her estate provided such a will is less or not more than one third
(1/3) of the total estate and it is also not at the detriment (expense)
of the legal inheritors. That is why the Islamic law of succession
insists that after the primary obligations have been made, the
remaining estate (net-estate) however the portion is (small or big)
must be shared amongst its inheritors (successors). One very
important measure to be taken by the Administrator(s) is the proper
valuation of the Estate before sharing.

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 From the foregoing discussion, it is clear that administration of
Estate and succession in Islamic law takes into cognisance issues
pertaining to the rights of women as heirs in the sharing of
inheritance in Islam. In comparison therefore with other existing
laws, both old and new, Islamic law of inheritance has proved that
Estate and Succession as part of human life needs full measures to
tackle. Therefore, the need to acquire the requisite knowledge which
is contained in the Qur’an and Sunnah of Prophet Muhammad
(P.B.U.H) cannot be over emphasized.

I thank this august and distinguished audience for exercising

patience to listen to me despite the voluminous pages of this
discourse. As I have said earlier, where I strayed, do please forgive
me.

Wassalam alaykum war Rahmatullahi Wabarakatuhu.

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FOR FURTHER READING
Abu Isam. “Inheritance in Islam”. Makkah: Translated by Abdul Majeed Al-
Obeidi.
Ambali, M. A. (1998). “The Practice of Muslim Family Law in Nigeria”.
Zaria: Tamaza Publishing Company Limited.
Aminat Bashir Alabasu (Mrs) (2010). “Sharia Legal System Vis-à-vis Human
rights Norms: A Comparative Harmonious Analysis”. NJI Law
Journal.
Al-Maslaha: “Issues Affecting Islam and Muslims” Vol.4, 2007 – 2008
Journals of Law and Religion. NAMLAS, University of Ilorin Chapter.
Doi, A. I.; “Sharia, The Islamic Law”. www.asmislamicbooks.com; (ND)
P.273.

Fiqh Al – Sunnah Vol. 3 Page 498.

Hajiya Sariyu balogun – Abdul Majeed. “A Glimpse at Inheritance”.

Oshogbo.
Justice Yunus Abdullah (2002). “Succession under Islamic Law, Issues,
Controversies and Solutions”. A Lecture Note. (Unpublished).

Muhammed, S. O. (2005). “Inheritance As It Affect You”. Being a

Ramadan Lecture Delivered Under the Auspices of AL –

Habibiyyah Islamic Movement, Abuja.

Sahih al – Bukhari, Kitabul Tafsir 101.

Sunan Ibn Majah

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Suleiman I. Nchi and Samaila A. Mohammed (1999). “Islamic Personal

Law and Practice in Nigeria”. Jos: Genesis Press.

The Holy Qur’an.

Uthman Al –Malik (1982). “Sirajus Salik: Commentary on Ashahul

Masalik”. Lebanon: Darul Fikr. Vol. 11.

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