Write a short but critical note on impediments to inheritance

Question: Write a short but critical note on impediments to inheritance. [BJS 1984]

Find the question and answer of Muslim Law only on Legal Bites. [Write a short but critical note on impediments to inheritance.]

Answer

Impediment means barring an heir from getting his/her share of the deceased's estate due to certain circumstances. The Sirajiyyah sets out four grounds of exclusion from inheritance, namely (1) homicide, (2) slavery, (3) difference in religion, and (4) difference of allegiance.

The second impediment was removed by the enactment of Act V of 1843 abolishing slavery, and the third by the provisions of Act XXI of 1850 which abolished so much of any law or usage as affected any right of inheritance of any person by reason of his renouncing his religion. The bar of difference of allegiance disappeared with the subversion of Mohammedan supremacy.

A person incapable of inheriting by reason of any of the above disqualifications is considered as not existing, and the estate is divided accordingly. According to Sirajiyyah, he does not exclude others from inheritance. Thus if A dies leaving a son B, a grandson C by B, and a brother D and if B has caused the death of A, B is totally excluded from inheritance, but he does not exclude his son C. The inheritance will devolve as if B were dead, so that C, the grandson, will succeed to the whole estate, D being a remote heir.

The impediments are listed below:

1. Homicide

(1) Under Sunni law, a person who has caused the death of another, whether intentionally, by mistake, negligence, or accident, is debarred from succeeding to the estate of that other.

(2) Homicide under Shia law is not a bar to succession unless the death was caused intentionally.

2. Slavery

A slave and everything he owns belongs to his master. As far as he remains a slave, he will not inherit from his relatives and they will not inherit from him. The logic is that if he inherits, whatever he gets belongs to his master and if his relatives are to inherit from him, they will actually be inheriting part of the master's estate.

3. Difference in religion

A Muslim does not inherit from a non-Muslim relative no matter how close they are, and vice-versa. For instance, a Muslim father who has a non-Muslim son will not inherit from him, and the other way round.

4. Difference of allegiance (loyalty or faithfulness)

Muslim of State at War cannot inherit from the Islamic State and vice versa.

Some other forms of impediments to inheritance in Muslim Law are as below:

a) Simultaneous death

When two or more people who are rightful heirs of one another like father and son, husband and wife, etc die at the same time maybe under a collapsed building or in similar circumstances, and it is uncertain who died first, they will not inherit from each other. But it's clear that the husband died before the wife, for instance, she will be listed among the surviving heirs of the husband and given her share of his estate. Thereafter, her heirs will inherit her estate plus her share of the husband's estate.

b) Li'an (Cursing for adultery)

This happens when a man denies the paternity of his wife's pregnancy and they end up swearing and cursing themselves as prescribed by Allah in the Qur'an (24: 6 – 9).

"And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those who speak the truth. And the fifth (testimony) (should be) the invoking of the Curse of Allah on him if he is of those who tell a lie (against her). But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allah, that he (her husband) is telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if he (her husband) speaks the truth."

The child that results will inherit from his mother only.

c) Emergency marriage

This refers to a marriage that takes place when either the bride or groom is in a state of ill health with a 50:50 percentage of survival and death or the percentage of death is higher. The healthy partner will not inherit from the sick one if he/she dies as a result of that illness. Conversely, the sick partner will not inherit from the healthy one supposing the latter incidentally dies before the former. But if the sick partner fully recovers, then either of them dies, this rule will not apply.

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