NZ Wills and Islamic Inheritance- Part 2
by M Abdur Rahman, Barrister & Solicitor
I refer to my article published in 2018 in the Kiwi Muslim Directory, NZ Wills and Islamic Inheritance – Part 1. A Muslim should abide by the Qur’anic order and should not do what he or she wants. In Surah An Nisaa verses 11 and 12, Allah the almighty stated a few distribution policies of deceased residue estate and property. Immediate after these two verses almighty Allah stated in verses 13 the reward who will observe the commandments of Him in respect of the inheritance distribution. It is strongly order from Allah that – “these are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment.” (Surah An-Nisaa: 13).
In verses number 14 of the same Surah An Nisaa Allah the almighty warns for sever punishment for those who do nor compliance with the order of Allah in relation to distribution od deceased residue estate. Allah Said- And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment. (Surah An-Nisaa: 14)
Hazrat Anas (RA) related that the Prophet (PBUH) said: “If anyone deprives an heir of his inheritance, Allah will deprive him of his inheritance in Paradise on the Day of Resurrection.” (Sunan Ibn Majah- no: 2703)
Hazrat Abu Huraira narrated that the Prophet (PBUH) said: “A man may do the deeds of the people of goodness for seventy years, then when he makes his will, he is unjust in his will, so he ends (his life) with deeds and enters hell. (Sunan Ibn Majah).
What If I Die Without A WILL? (Known as dying “Intestate”) in NZ:
Who dies without a WILL the Administration Act 1969 determines who is entitled to apply to be the administrator of the person’s estate and how the assets are to be distributed. With an intestate estate, the Court appoints the administrator(s). Moreover, if anyone dies without a valid WILL it will cause to hazard, stress, time consuming and expensive.
NZ law doesn’t prohibit us to follow Shari’ah:
Though the Shariyah Law is not enforceable in New Zealand, the Law of NZ does not specifically prohibit us from writing a WILL compliance with Islamic Shariyah provided that certain conditions to be fulfilled. Due to flexibility of NZ law relating to WILL making, a person can divide and dispose as much he or she wishes. That means NZ law does not set out the rules for the ratio or proportion of the residue property to be divided, it rather sets out the procedural rules for writing a WILL and, therefore, making it legally valid.
In my last article I have mention the necessary procedure to making a valid will. I am not repeating that, I am focusing today a few proportions and case study for distribution of the deceased residue estate.
Rules of Inheritance
Prescribed Shares
1) Husband [AnNisa 4:12]
a. Gets 1/2
i. Deceased does not have any offspring
b. Gets 1/4
i. Deceased has offspring
2) Wife (Divided equally among all wives) [AnNisa 4:12]
a. Gets 1/4
i. Deceased does not have any offspring
b. Gets 1/8
i. Deceased has offspring
3) Daughter (Divided equally among all daughters)
a. Gets 1/2 [AnNisa 4:11]
i. Deceased has only 1 daughter, and [AnNisa 4:11]
ii. Deceased does not have any sons [AnNisa 4:11]
b. Gets 2/3 [AnNisa 4:11]
i. Deceased has multiple daughters, and [AnNisa 4:11]
ii. Deceased does not have any sons [AnNisa 4:11]
4) Father [AnNisa 4:11]
a. Gets 1/6
i. Deceased has offspring
5) Mother [AnNisa 4:11]
a. Gets 1/3
i. Deceased does not have any offspring, and
ii. Deceased does not have multiple siblings (full, paternal, maternal)
b. Gets 1/6
i. Deceased has offspring, or
ii. Deceased has multiple siblings (full, paternal, maternal)
6) Full Sister
a. Gets ½ [AnNisa 4:176]
i. Deceased has only 1 full sister
ii. Deceased does not have any offspring
iii. Deceased does not have any male paternal ancestor
iv. Deceased does not have any full brother
b. Gets 2/3 [AnNisa 4:176]
i. Deceased has multiple full sisters
ii. Deceased does not have any offspring
iii. Deceased does not have any male paternal ancestor
iv. Deceased does not have any full brother
Blocking Rules
Son blocks Paternal Grandson, Paternal Granddaughter, Full brother, Full sister, Paternal brother, Paternal sister, Maternal Brother, Maternal sister, Full Nephew, Paternal Nephew, Full Nephew’s son, Paternal Nephew’s son, Full paternal Uncle, Paternal paternal uncle, Full cousin, Paternal Cousin, Full cousin’s son, Paternal Cousin’s son, Full cousin’s son’s son, Paternal Cousin’s son’s son
c. Father blocks Paternal Grandfather, Paternal Grandmother, Full brother, Full sister, Paternal brother, Paternal sister, Maternal Brother, Maternal sister, Full Nephew, Paternal Nephew, Full Nephew’s son, Paternal Nephew’s son, Full paternal Uncle, Paternal paternal uncle, Full cousin, Paternal Cousin, Full cousin’s son, Paternal Cousin’s son, Full cousin’s son’s son, Paternal Cousin’s son’s son
Mother blocks Paternal Grandmother, Maternal Grandmother
f. Full brother blocks Paternal brother, Paternal sister, Full Nephew, Paternal Nephew, Full Nephew’s son, Paternal Nephew’s son, Full paternal Uncle, Paternal paternal uncle, Full cousin, Paternal Cousin, Full cousin’s son, Paternal Cousin’s son, Full cousin’s son’s son, Paternal Cousin’s son’s son
Full sister blocks Paternal brother, Paternal sister, ,Full Nephew, Paternal Nephew, Full Nephew’s son, Paternal Nephew’s son, Full paternal Uncle, Paternal paternal uncle, Full cousin, Paternal Cousin, Full cousin’s son, Paternal Cousin’s son, Full cousin’s son’s son, Paternal Cousin’s son’s son(can block only if the deceased has at least 1 female offspring, otherwise stuck in 2/3 zone)
A male & female of the same class receive shares with the ration of 2:1 [AnNisa 4:11], [An Nisa 4:176]. The following conditions should be met.
Male & female are of the same class
b. This rule applies during the distribution of residual shares, and not the distribution of prescribed shares
c. This rule doesn’t apply to maternal siblings. They are either ways given from prescribed shares
Following relatives can never be blocked
• Husband
• Wife
• Father
• Mother
• Son
• Daughter
Spouse can neither be blocked, nor can they block any body
Test Cases
Test Case # 1 (Wife 1, Son 1)
|
Shares by Category
|
Relative Category
|
Share Fraction
|
Share Percentage
|
|
Wife
|
1/8
|
12.5%
|
|
Son
|
7/8
|
87.5%
|
|
Shares by Individual
|
Relative
|
Share Fraction
|
Share Percentage
|
|
Wife
|
1/8
|
12.5%
|
|
Son
|
7/8
|
87.5%
|
|
Calculation Steps:
- Wife gets the prescribed share of 1/8.
- Distribute the remaining shares according to relative priority
- Son is the only heir remaining receiving share of 7/8
Test Case #2 (Husband 1, Son 1, Daughter 1)
|
Shares by Category
|
Relative Category
|
Share Fraction
|
Share Percentage
|
|
Husband
|
1/4
|
25%
|
|
Son
|
1/2
|
50%
|
|
Daughter
|
1/4
|
25%
|
|
Shares by Individual
|
Relative
|
Share Fraction
|
Share Percentage
|
|
Husband
|
1/4
|
25%
|
|
Son
|
1/2
|
50%
|
|
Daughter
|
1/4
|
25%
|
|
|
|
Calculation Steps:
- Husband gets the prescribed share of 1/4.
- Distribute the remaining shares according to relative priority
- Joint Ta’seeb of Son and Daughter.
- Son and Daughter share in the ratio of 2:1
- Son gets the share of 1/2 and Daughter gets the share of 1/4.
|
Test Case # 3 (Son 1, Daughter 2)
|
Shares by Category
|
Relative Category
|
Share Fraction
|
Share Percentage
|
|
Son
|
1/2
|
50%
|
|
Daughter
|
1/2
|
50%
|
|
Shares by Individual
|
Relative
|
Share Fraction
|
Share Percentage
|
|
Son
|
1/2
|
50%
|
|
Daughter 1
|
1/4
|
25%
|
|
Daughter 2
|
1/4
|
25%
|
|
|
|
Calculation Steps:
-
- Distribute the remaining shares according to relative priority
- Joint Ta’seeb of Son and Daughter
- Son and Daughter share in the ratio of 2:1
- Son gets the share of 1/2 and Daughter gets the share of 1/2.
|
Test Case # 4 (Son 1, Daughter 1)
|
Shares by Category
|
Relative Category
|
Share Fraction
|
Share Percentage
|
|
Son
|
2/3
|
66.67%
|
|
Daughter
|
1/3
|
33.33%
|
|
Shares by Individual
|
Relative
|
Share Fraction
|
Share Percentage
|
|
Son
|
2/3
|
66.67%
|
|
Daughter
|
1/3
|
33.33%
|
|
|
|
Calculation Steps:
- Distribute the remaining shares according to relative priority
- Joint Ta’seeb of Son and Daughter
- Son and Daughter share in the ratio of 2:1
- Son gets the share of 2/3 and Daughter gets the share of 1/3.
|
Test Case # 5 (Husband 1, Son 2, Daughter 1, Father 1, Mother 1, Grand Father 1, Full Brother 1)
|
Shares by Category
|
Relative Category
|
Share Fraction
|
Share Percentage
|
|
Husband
|
1/4
|
25%
|
|
Son
|
1/3
|
33.33%
|
|
Daughter
|
1/12
|
8.33%
|
|
Father
|
1/6
|
16.67%
|
|
Mother
|
1/6
|
16.67%
|
|
Grand Father
|
0/12
|
0%
|
|
Full Brother
|
0/12
|
0%
|
|
Shares by Individual
|
Relative
|
Share Fraction
|
Share Percentage
|
|
Husband
|
1/4
|
25%
|
|
Son 1
|
1/6
|
16.66%
|
|
Son 2
|
1/6
|
16.66%
|
|
Daughter
|
1/12
|
8.33%
|
|
Father
|
1/6
|
16.67%
|
|
Mother
|
1/6
|
16.67%
|
|
Grand Father
|
0
|
0%
|
|
Full Brother
|
0
|
0%
|
|
|
|
Calculation Steps:
- Son blocks Full Brother from receiving any share.
- Father blocks Grand Father from receiving any share.
- Husband gets the prescribed share of 1/4
- Father gets the prescribed share of 1/6
- Mother gets the prescribed share of 1/6
- Distribute the remaining shares according to relative priority
- Joint Ta’seeb of Son and Daughter
- Son and Daughter share in the ratio of 2:1
- Son gets the share of 1/3 and Daughter gets the share of 1/12.
|
Reference:
1.Al Qur’an
- Al hadeeth
- http://inheritance.ilmsummit.org/projects/inheritance/testcasespage.aspx
- http://www.kurandersleri.net/miras/en/Miras_Kadin_en.html#pay
- http://www.jalalfoundation.org/virasat/
- http://difcprobate.ae/calculator/
The author can be contacted at Avondale Law, M: +64210621746
131 Blockhouse Bay Rd, Avondale, Auckland
Published in14th Edition – 2023