Tutorial 7

Chin Hui Yin 1122700121

Lim Xin 1122700785

(a) Discuss the validity of the hibah

and will made by Azrai. Cite relevant
authorities and reasons in your
answer.
- i) validity of the hibah made by Azrai
- ii) validity of the will made by Azrai

i) Validity of the hibah made by Azrai

Definition : Gift from one living person to another
without usurping or neglecting the rights of his
descendants and near relatives & must be immediate &
unqualified transfer of the corpus of the property
without any return (iwad).
Al-Quran : (3 : 38)
Hibah basically means a gift as when Prophet Zakariya
prayed to his Lord in order to be granted descendants,
saying O my Lord! Grant unto from You a progeny that
is pure (grant me from Yourself a good offspring).

Hadith :
Bukhari reported that the Prophet says, Give each other and
love each other
Hadith is recommended among family members first then
nearest among the neighbours and so forth.
Application :
In this case, Azrai had made a gift to his son.
He gave his martial art business to his son, Imran as hibah in
January 2010 which is before his death.
Based on the hadith, it is recommended to give hibah among
the family members first. Applying to Azrais situation, he
had given it to his son.
Besides, since hibah itself means a gift that is given by a
living person to another, giving the martial art business to
Imran as hibah while Azrai is still alive clearly signifies that
the hibah given is valid.
Hence, the hibah made by Azrai is valid.

ii) Validity of the will made by Azrai

Provision 1:
I, Azrai bin Ayob of 34 Presint Sungai Putat declare
that this is my last will. I have made and give half of
my property to Kelab Isteri-Isteri Muda Bacang.

The general principle of Islamic law is that a

Muslim can only dispose of 1/3 of his property by
wasiyyah. Any disposition made in contravention
of this rule is void to the extent of the excess. In
other words, the wasiyyah is only valid to the
maximum of 1/3.
The 1/3 must be calculated after the deduction of
any expenses and debts owed by the deceased.

Authority :
Hadith:
Prophets companion Saad ibn Abi Waqas:
The Messenger of Allah used to visit me at Mecca in the
year of the farewell Pilgrimage, on account of my illness
which had become very severe. So I said : My illness has
become very severe and I have much property and there is
none to inherit from me but a daughter, shall I then
bequeath two thirds of my property to charity? He said :
No. I said: Half? He said No. Then he said : Bequeath
one third and one third is too much. To leave after you your
heirs well to do is better than you leave them poor and in
want whilst others meet their needs.
Malaysian courts have also recognized this principle of
Hukum Syarak in the following cases :
1) Shaik Abdul Latif v Shaik Elias Bux
2) Amanullah Haji Ali Hassan v Jamilah Sheik Madar
3) Abdul Rahim v Abd Hamid

 Where the beneficiary under a will made by a

Muslim is given more than one-third of the
estate, the onus is on him to show that all the
heirs have consented to it after the death of the
testator and not before. Any consent given
before the death does not bind the heirs.
In the present case, Azrai had disposed half of
his property to Kelab Isteri-Isteri Muda Melaka.
This is clearly against the Islamic law principle
of inheritance. Hence, this provision in the will
is invalid.
The facts is silent as to whether the heirs had
given their consent.
If yes will is valid as a whole. If no will is
invalid.

Provision 2 :
2. The balance of the property will be divided equally
to my wife, Hazwani and our children Amirul,
Syazana and Khalidah.
This distributions are invalid because:
1) A wasiyyah must not be made in favour of any of
his legal heirs/ the distribution of the estate among
the legal heirs should be made according to faraid.
Any wasiyyah made in favour of a legal heir is void.
If the legal heir gets something through wasiyyah,
then he will get more compared to other heirs. It
means that each heir will get lesser in term of the
amount of estate.

Authority :
Hadith :
Abu Umamah said: I heard the Messenger of Allah say: Surely Allah
has given to everyone entitled to anything his due, therefore, there
shall be no bequest for one who inherits.
In Siti bte Yatim v Mohamed Nor bin Bujali, an old decision of the High
Court of Selangor (in the Federated Malay States), it was held by Burton
J that the will of a Muslim which attempts to prefer an heir by giving
him a bigger share of the estate than he is entitled to by Muslim law is
invalid as to such bequest without the consent of the other heirs.
Thus, the wassiyah made to a legal heir who is entitled to a portion
under faraid would be valid if consent is obtained from other legal heirs
who receive specific portions from the estate.
Otherwise, the wasiyyah is not valid even though its quantum is not
more than 1/3.
Hence, the disposition of property under the 2nd provision is also
invalid.

Provision 3 :
3. If my wife fails to survive me I leave my estate equally to my
children I have at the date I die.
Authority :
Al- Quran (4: 11)
Allah instructs you concerning your children: for the male, what
is equal to the share of two females. But if there are [only]
daughters, two or more, for them is two thirds of one's estate.
And if there is only one, for her is half. And for one's parents, to
each one of them is a sixth of his estate if he left children. But if
he had no children and the parents [alone] inherit from him,
then for his mother is one third. And if he had male siblings [or
Female siblings], for his mother is a sixth, after any bequest he
[may have] made or debt. Your parents or your children - you
know not which of them are nearest to you in benefit. [These
shares are] an obligation [imposed] by Allah. Indeed, Allah is ever
Knowing and Wise

 Under the Islamic law of inheritance, the

male will takes a share equivalent to the
share of two females under the principle of
tasib.
Hence, the equal distribution of property/
estate among all the children is impossible
under the Islamic law.
In short, the distribution in the will is invalid.

(b) Based on your answer in

Question (a), consider how the
estate will be distributed among the
survivors according to faraidh law.

Preliminary Clarification
Mr. Azrais total amount of property:
RM600,000
Wasiyyah (Kelab Isteri-isteri Muda) portion:
1/3 x RM600,000= RM200,000
Residue for survivors: 2/3 x
RM600,000=RM400,000

Portions of legal heirs

Survivors

Portion

Divorced wife, Salina

Current wife, Amani

1/8

2 sons, Ammar and Imran

Take the residue of current

wife, 7/8 and share with
daughters on ratio 2:1

3 daughters, Siti, Salina and Athirah

Share residue with son on

ratio 2:1

Quranic verses
Survivors

Portion

Quranic proof

Divorced wife,
Salina

(Reasoning) A wife who has been

divorced validly not entitled to
inherit

Current wife,
Amani

1/8

(4:12) but if you leave a child

they get an eighth after payment of
legacies and debts.

2 sons, Ammar
and Imran

Take the residue of

current wife, 7/8
and share with
daughters on ratio
2:1

(4:11) God directs you as regards

your childrens (inheritance); to the
male, a portion equals to that of
two females

3 daughters,
Siti, Salina and
Athirah

Share residue with

sons on ratio 2:1

(4:11) God directs you as regards

your childrens (inheritance); to the
male, a portion equals to that of
two females

Total amount for each survivor

Survivors

Portion

Total Amount (RM)

Divorced wife, 0
Salina

Current wife,
Amani

1/8

1/8 x 400k= 50k

2 sons,
Ammar and
Imran

7/8 (share
with
daughters on
ratio 2:1)

4
4/8 x 400k= 200k
(1Sx2=2portions; (each son will get
2Sx2=4portions) 100k)

3 daughters,
Siti, Salina
and Athirah

7/8 (share
with sons on
ratio 2:1)

3
(1Dx1=1portion;
3Dx1=3portions)

3/8 x 400k= 150k

(each daughter will
get 50k)

Total amount for each survivor

Survivors

Portion

Total Amount (RM)

Divorced wife, 0
Salina

Current wife,
Amani

1/8

1/8 x 600k= 75k

2 sons,
Ammar and
Imran

7/8 (share
with
daughters on
ratio 2:1)

4
4/8 x 600k= 300k
(1Sx2=2portions; (each son will get
2Sx2=4portions) 150k)

3 daughters,
Siti, Salina
and Athirah

7/8 (share
with sons on
ratio 2:1)

3
(1Dx1=1portion;
3Dx1=3portions)

3/8 x 600k= 225k

(each daughter will
get 75k)

(c) It is later established that following the death

of Azrai, it was discovered by the police that Azrai
has actually been poisoned by Salina and Amani.
Both of them were later convicted of conspiracy of
murdering Azrai. Meantime, Amani is pregnant of
3 months upon Azrais death.
Explain what effect, if any, this will have on their
claim against the estate.

i) Salina and Amani

All Muslim jurists agree that a killer does not
inherit the property from the one he
deliberately killed for the reason that killing
would accelerate inheritance.

Authority :
Hadith :
The Prophet said that: A murderer does not
inherit anything.
There is no inheritance for a murderer.

 The type of killing would be determined based on the

intention and the weapon used in causing the death of
the victim.
If the weapon used is fatal and would normally caused
death, then the killing is an intentional killing.
The Shafie jurists hold the view that killing is an
impediment from inheritance in all situations regardless
of its nature.
All the jurists agree that killing committed deliberately
and with intention, will impede a person from inheriting
under faraid.
Based on the facts that Amani and Salina had been
convicted of conspicary of murdering Azrai by poisoning
him, it is suggested that the killing is intentional killing.
Hence, Amani and Salina will lose their right to inherit
the estate of Azrai.

ii) Amanis foetus

Clarification of concepts

The existence of the unborn child in the womb

of its mother at the time of the persons death
is established upon the birth of the child by
the legal presumptions relating to the
gestation period.
For the purpose of inheritance, if any child is
born within the shortest or longest period of
gestation according to the law, it is considered
to be entitled as a legal heir.

Clarification of concepts
Gestation period is the period of carrying a
fetus in the womb from conception until birth.
Based on the juristic opinions, a child may be
conceived in the womb of its mother for
either the shortest period of six or nine
months or for the longest; two or four or five
years before it is born.

Application
Based on the facts, Amani is pregnant 3 months upon
Azrais death.
A child is reasonably born in 9-10months, so Amanis
child is expected to be born in 6-7months after Azrais
death.
The gestation period (period of carrying a fetus in the
womb from conception until birth) of Amani is 67months, so it falls under the shortest period of
gestation period.
Therefore, Amanis child in the womb is a legal heir.

Clarification of concepts
For the unborn child that is conceived in the womb of
its mother, it must eventually be born alive.
Sunnah When a newly born makes some noises, then
the baby inherits.
Until the child is born, its share will be reserved. Other
existing legal heirs will take their portions, whichever
is less based on the assumption of it being born alive
or dead and its gender and number.

Application
Since wife falls under the category of primary
heirs, they will get a fixed portion despite the
existence of newly born child. (4:12) but if you leave a child
they get an eighth after payment of legacies and debts.

Thus, Salina the divorced wife remains no

right to inherit and Amani the current wife still
obtain the original portion.

Application: Child dies

Survivors

Portion

Total Amount (RM)

Current wife,
Amani

1/8

1/8 x 600k= 75k

2 sons,
Ammar and
Imran

7/8 (share
with
daughters on
ratio 2:1)

4
4/8 x 600k= 300k
(1Sx2=2portions; (each son will get
2Sx2=4portions) 150k)

3 daughters,
Siti, Salina
and Athirah

7/8 (share
with sons on
ratio 2:1)

3
(1Dx1=1portion;
3Dx1=3portions)

3/8 x 600k= 225k

(each daughter will
get 75k)

Application: Son alive

Survivors

Portion

72

Total Amount (RM)

Least Portion
(RM)

Current wife,
Amani

1/8

9/72 x 600k= 75k

75k

2 sons, Ammar
and Imran

7/8 (share with

daughters on
ratio 2:1)

28
(14 for each son)

28/72 x 600k= 233k

(each son 116.5k)

233k
(each son
116.5k)

3 daughters, Siti,
Salina and
Athirah

7/8 (share with

sons on ratio
2:1)

21
(7 for each daughter)

21/72 x 600k= 175k

(each daughter 58.3k)

175k
(each daughter
58.3k)

Newly born son

7/8 (share with

daughters on
ratio 2:1)

14

14/72 x 600k= 117k

Reserved

Application: Daughter alive

Survivors

Portion

72

Total Amount (RM)

Least Portion
(RM)

Current wife,
Amani

1/8

9/72 x 600k= 75k

75k

2 sons, Ammar
and Imran

7/8 (share with

daughters on
ratio 2:1)

28
(14 for each son)

28/72 x 600k= 233k

(each son 116.5k)

233k
(each son
116.5k)

3 daughters, Siti,
Salina and
Athirah

7/8 (share with

sons on ratio 2:1)

21
(7 for each daughter)

21/72 x 600k= 175k

(each daughter
58.3k)

175k
(each daughter
58.3k)

Newly born
daughter

7/8 (share with

sons on ratio 2:1)

7/72 x 600k= 58.3k

Reserved