Muslim Inheritance Law

This article is taken from http://www.lawsociety.org.sg/public/you_and_the_law/muslim_inheritance_law.aspx

A. Introduction

• In Singapore, the estate of a Muslim must be distributed in accordance with Islamic inheritance laws.

• Currently, PART VII of the Administration of Muslim Law Act, 1966 (‘AMLA’) governs the distribution of Muslim estates.

	2.1	Section 111(1) of AMLA stipulates that ‘notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore shall, after 1st July 1968, dispose of his property by Will except in accordance with the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him’.
	2.2	Section 112(1) of AMLA states ‘in the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom.’

B. What Happens When Death Occurs

• All bank accounts are frozen.

• There will be no transfer or dealings with the deceased’s assets whatsoever until the Court grants the Letter of Administration or Probate.

• Hence, the potential beneficiaries need to appoint an administrator to undertake and ensure the proper distribution of the deceased’s assets.

C. Priority Payments Before the Distribution of Assets

• Before the estate of the deceased can be distributed to his heirs, all debts owing by the deceased and all prior claims against him must first be paid.

• Not in order of priority, payments from the estate are as follows:

  • Payment of funeral expenses;

  • Payment of all other debts owing by the deceased which should include satisfaction of all unpaid zakats, performance of Haj through an acceptable proxy and payment of ‘fidyah’ to redeem unobserved compulsory fasting days;

  • Redemption of mortgaged property;

  • Identify jointly-owned assets;

  • Payment of legacies under a valid Will; and

  • Distribution of net estate among Lawful Heirs (described below in Part F).

D. Muslim Wills (‘Wasiyyah’)

• A Muslim testator is allowed to leave a Will so long as its content is executed in accordance with Islamic law.

• The testator can only Will away a maximum of 1/3 of his total assets. A Will can only be made in respect of not more than one third of the net estate of the testator. This is to protect those persons with a legitimate claim to the estate, such as spouses and children. If the Will purports to bequeath more than one third of the net estate, the bequests may be reduced proportionally such that the aggregate will not exceed one third. On the other hand, if all the legal heirs voluntarily agree (‘muafakat’), the testator's Will which bequests more than one-third of his total assets will be valid.

• The beneficiaries under the Will cannot be any person who is a lawful beneficiary under the ‘Faraid’ (explained below in part E). The testator can only make a Will in favour of his non-Specified Heirs, such as his adopted children, certain maternal relatives such as maternal aunt or maternal grandfather, or third parties such as close friends or protégés. However, the testator cannot make any bequests to non-Muslim beneficiaries unless they are blood relations.

• A Muslim can make a Will to give to charity or for any other purpose so long as these purposes are permissible under ‘the Syariah’ (Islamic law). Any bequest for a cause or purpose in contradiction to Syariah principles will be invalid. The testator can name the executor to execute his Will. The testator may also, in his Will, appoint a guardian for his children, who must be a Muslim. He may appoint a trustee, who need not be a Muslim, to manage his children’s inheritance until they are 21 years of age.

• Witnesses to the Will

	5.1	Section 111(1) of AMLA stipulates that ‘notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore shall, after 1st July 1968, dispose of his property by Will except in accordance with the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him’.
	5.2	Section 112(1) of AMLA states ‘in the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom.’

• A breach of these fundamental rules will make a Will invalid. It will also be invalid, if the Will is written by a minor, written under duress, or by a person without the proper mental capacity.

E. Faraid

• Faraid stipulates how the estate of a Muslim is to be dealt with and distributed after his or her death. For convenience, all references to the male gender include the female gender. The rules described here reflect the rules practised under the Shafie school of thought; some differences or variations may be adopted under the Hanafi, Maliki and Hanbali schools.

• The role of the Faraid is to provide a system or method of distribution of one’s assets after death in accordance with Islamic principles. These principles are specifically laid down in the Muslim holy book, the Quran in Chapter 4, Surah An-Nisaa. This is so unless all the lawful beneficiaries come to a voluntary agreement (‘muafakat’) to divide the estate by any other alternative method of calculation or in any other manner.

F. Lawful Heirs (‘Waris’)

• The specified heirs are entitled to share in the net estate of the deceased in accordance with Faraid as specified in the Quran.

• These heirs are classified as:

  • ‘Ashabul-Furud’: those whose shares are specifically stated in the Quran;

  • ‘Asabah’: those who are entitled to the balance of the deceased estate but whose shares are not specifically stated; and

  • ‘Dhawil-Arham’: the residual third group who are blood-relations but who do not belong to either groups (i) or (ii).

• The list of those who fall in the Ashabul-Furud category are as follows:

List of Ashabul-Furud Heirs
Males 1. Son 2. Husband 3. Father 4. Grandfather 5. Full Brother 6. Brother (of the same Father) 7. Brother (of the same Mother) 8. Nephew (of brother’s) 9. Nephew (of half brother’s) 10. Paternal Uncle (same grandparents) 11. Paternal Uncle (same grandfather) 12. Grandson (of son) 13. Male Cousin (of Paternal Uncle) 14. Male Cousin (of Paternal Uncle) 15. Owner of freed slave	Females 1. Daughter 2 Wife 3 Mother 4 Maternal grandmother 5 Paternal grandmother 6 Full Sister 7 Consanguine Sister (of the same Father) 8. Uterine Sister (of the same Mother) 9. Granddaughter (of son) 10. Owner of freed slave

• The Ashabul-Furud are entitled to certain prescribed shares which are intended to effect an equitable distribution of the estate. For instance, males are given 2 shares of the estate to every share given to his female counterpart because they are expected to assume financial responsibility for the women.

• In addition, female heirs are allocated a specified portion of the estate (eg half or one sixth) which means they will always be entitled to a portion of the estate, regardless how small.

• Specified Heirs forfeit their claim under the following circumstances:

  • he caused the death of the deceased, whether deliberately or unintentionally; or

  • he is not a Muslim; or

  • if the heir has renounced Islam.

• Alternatively, if the Specified Heirs voluntarily agree to reduce their own entitlements accordingly, it is possible that the aggregate amount paid on the bequests could exceed the 1/3 limit.

G. Estate Administration

• The first step is for a beneficiary to apply to the Syariah Court for a Certification of Inheritance (‘Sijil Warisan’) to be issued. The Certificate will identify the surviving Specified Heirs, state their relationships to the deceased, and specify their precise shares to the estate (eg 1/8 portion).

• As of 28 April 2008, all applications for the Certificate of Inheritance must be made online via the website of the Syariah Court at www.syariahcourt.gov.sg accompanied by a Satutory Declaration. The said Declaration has to be submitted within three (3) working days from the date that the application is made. The application will be rejected if the applicant fails to submit the said Declaration on time or at all. There is a prescribed gazetted fee of S$12.00 and application fees of S$34.00 that an unrepresented applicant will incur.

• The applicant must be one of the following parties:

  • Beneficiary to the estate of the deceased (a Muslim)

  • The Islamic Religious Council of Singapore (MUIS)

  • A law firm on behalf of a beneficiary

  • Public Trustee

  • Court

• The Certificate of Inheritance must be for purposes of the administration or distribution proceedings of the said estate in accordance with the Syariah.

• To apply on line, you will need:

  • the Death Certificate of the deceased; and

  • the NRIC or Passport of the applicant and beneficiaries

H. Computation of Shares of Specified Heirs

• The rules prescribing the entitlement of Specified Heirs to a share of the net estate of the deceased are fairly simple, although the computation of their respective shares can be fairly complex depending on the configuration of Specified Heirs surviving the deceased.

• You can also visit MUIS’s faraid website at www.faraid.gov.sg and submit a trial calculation. You will be informed that the trial calculation is merely for your information and no other party, whether it is an individual, some authority or the Court, none of them is under any obligation to follow this calculation.

• The table below sets out the general rules of distribution among certain Specified Heirs and is intended to provide guidance only for simple cases.

Heirs
Husband
If there is no child or grandchild surviving the deceased	1/2
If there is a surviving child or grandchild of deceased	1/4
Wife
If there is no child or grandchild surviving the deceased	1/4
If there is a surviving child or grandchild of deceased	1/8
Son	Residuary
If there is no daughter
If there is a daughter (he shares with his sister, but is entitled) to 2 shares for every share given to her)	Residuary
Daughter
If sole daughter	1/2
If 2 or more daughters (the daughters portion is shared equally among them)	2/3
If there is a son, (she shares with her brother, but is entitled to 1 share for every 2 shares given to him)	Residuary
Father
If there is a child or grandchild surviving the deceased	1/6
If there is no child or grandchild surviving the deceased	Residuary
Mother	1/6
Paternal Grandmother (her portion is shared with maternal grandmother)	1/6
If Mother or Father survives	Nil
Paternal Grandfather
If no father, child or grandchild survives	Residuary
If son or grandson survives	1/6
If father survives	Nil
Maternal Grandmother (her portion is shared with paternal grandmother)	1/6
If Mother survives	Nil
Brothers
If father, son or grandson survives	Nil
If no father, son or grandchild survives	Residuary
Sister
If father, son or grandson survives	Nil
If sole sister	1/2
If 2 or more sisters (they share equally)	2/3
If Brother survives (they share 2:1 with Brother)	Residuary

I. CPF & Insurance

• CPF and insurance monies are not considered as part of the assets of the deceased’s estate. They are under the purview and subject to the CPF Act and the Insurance Act respectively. Proper documents need to be submitted to the appropriate institution for claims for CPF and insurance monies.

• There is a fatwa issued in the case of Saniah bte Ali v Abdullah bin Ali (1990) 3 MLJ 135 which states that a nominee holds the CPF monies as trustees for all the lawful beneficiaries under the Syariah. But the Civil Court views it differently. CPF monies will go to the nominees unless no nominations are made, in which case the Faraid will prevail.

• Likewise, insurance monies will go to the nominees, (even an ex-spouse) unless the deceased have not made any nominations.

J. Real Property

• If the property of the deceased, be it a HDB property or otherwise, is held by the deceased and other parties as tenants-in-common, then it is clear that the deceased’s share in the property is to be divided according to his Will and/or Faraid.

• A private property, if shared through a joint tenancy, which is the case for most estates, will follow the view of the Fatwa below.

• The Fatwa issued by MUIS would effectively not allow the co-owner to inherit through the right of survivorship. This means that the co-owner cannot assume ownership of the deceased’s share. Instead the latter’s share will be distributed according to the Faraid. If the co-owner is one of the lawful beneficiaries, he/she can also claim his/her share from there.

• On the other hand, there is a view that MUIS’ Fatwa for Joint Tenancies will not apply to HDB housing. Thus the right of survivorship will prevail leaving the co-owner to inherit the entire share of the deceased’s joint tenancy property and per Civil Law.

K. Lease or Hire-Purchase

• Properties on lease or hire-purchase are deemed to be part of the estate of the deceased even though the properties in question do not legally belong to the deceased. Therefore, the deceased would have the right to will away these assets or they are to be divided according to the Faraid.

L. Where There Are No Legal Heirs

• In the event of the deceased leaving no legal heirs at all, having exhausted the list of possible heirs under the Ashabul-Furud, Asabah and Dhawil-Arham, the estate of the deceased will be given to ‘Baitulmal’. In Singapore, ‘Baitulmal’ is administered and managed by MUIS.