The laws of inheritance are a fundamental part of Shariah law. It is obligatory for Muslim persons to have a Last Will & Testament to ensure that your estate devolves according to Shariah Law. It is even more crucial to ensure that your estate is administered in accordance with Islamic laws of inheritance in a country like South Africa where Shariah law is not the governing law and therefore not applied automatically.
The laws of inheritance in terms of Shariah law
According to Shariah law, once the liabilities of the deceased have been settled, the remainder of the estate may be distributed among the Islamic heirs of the deceased. Islamic heirs refer to blood relatives of the deceased, as only blood relatives are entitled to inherit. The Quran stipulates the shares that Islamic heirs should inherit. Therefore, if a bequest is made to an Islamic heir, it will be subject to Quranic laws of inheritance – the most notable law being that a deceased’s son’s share must be twice that of the daughter’s share.
However, the testator is allowed to bequeath no more than one-third of his estate to any person. This is known as a wasiyyah bequest, which can only bequeath upon a person or charitable organization that would not otherwise inherit from the deceased estate.
Why should I have a Will if the Quran specifies how a Muslim person’s estate should be distributed?
The Shariah laws of inheritance differ from South African laws of inheritance. In terms of South African law, if a person dies without a Will, that person dies intestate, and their estate will be administered in accordance with the laws of the Intestate Succession Act 81 of 1987. This Act regulates who may inherit from the deceased and the share which they are entitled to inherit from the deceased’s estate. As a result, you have no control over who inherits from you.
This would affect Muslim persons who die without a Will as their Islamic heirs who are entitled to inherit from their estate, may not inherit. Similarly, those who should not inherit, may inherit from their estate. It is also important to note that if no relatives are found, the net value of the estate will be paid to the Guardian’s Fund and if no claim is made from a relative within 30 years, the estate will be forfeited to the State. As a result, the deceased’s estate will not be distributed in terms of Shariah law.
Having a valid Will in South Africa means that your Will must comply with the provisions of the Wills Act 7 of 1953. Since South African laws of inheritance allow for the freedom of testation, Muslim persons are allowed to have a Will which instructs that their estate be distributed according to Shariah law. Having a Will ensures that your estate is distributed Islamically, according to your wishes and evades unnecessary confusion and conflict between family members.
Written by Ayesha Arend
This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.