intestate succession in islamic countries - oxford scholarship

Intestate Succession in Islamic Countries

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Comparative Succession Law: Volume II: Intestate SuccessionKenneth Reid, Marius de Waal, and Reinhard Zimmermann

Print publication date: 2015Print ISBN-13: 9780198747123Published to Oxford Scholarship Online: October 2015DOI: 10.1093/acprof:oso/9780198747123.001.0001


Nadjma Yassari

DOI:10.1093/acprof:oso/9780198747123.003.0018

Abstract and KeywordsIntestate succession in Islamic countries is based on religious law, with the assumption that the law must impose mandatory rules regarding what property passes from one generation to the next. The Islamic inheritance scheme is not a parentelic or three-line system: it stands for a third, different system, where classes are based on the presumed closeness of the heirs to the deceased under a pre-conceived family scheme. Under Sunni law, close relatives are entitled, as exemplified by its twelve qur’anic heirs, and male agnatic heirs are in a strong position. Shiite law adheres to a different model of the ideal family, resting on the specific ties and responsibility of the immediate family and rejecting the privileges of agnatic relatives. Both systems, and accordingly all Islamic countries, favour the deceased’s descendants over the surviving spouse, and distribute the estate by a ratio of two to one in favour of male heirs of the same class and degree.

Keywords: Islamic law, intestate succession, succession law, devolution, estate, Sunni law, Shiite law

I. Introduction 421II. Principles of classical Islamic intestate succession law 423

1. Sources of law 4232. Common principles 423

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III. The devolution of the estate under Sunni and Shiite law 4251. Succession under Sunni law 426

(a) Qur’anic heirs 426(b) Agnatic residuary heirs 427(c) Distant kindred 428

2. Succession under Shiite law 429(a) Three-class hierarchy 429(b) Distribution of the estate 429

3. Evaluation 430

IV. The position of the surviving spouse 4311. Right to inherit and fractional shares 4312. The spouse as the sole heir 4323. The right to inherit immovable property 4324. Matrimonial property regime 433

V. The push for reforms 4331. The right to inherit land under Shiite law 4352. Orphaned grandchildren: inheriting via representation and obligatory bequest 435

(a) Introduction of representation in Pakistani law 436(b) Obligatory bequests 436

3. Evaluation 438

VI. Conclusion 440

I. IntroductionIn Islamic countries,1 intestate succession is based on religious law, and rests on the assumption that the law must impose mandatory rules as to what property passes from one generation to the next. For the welfare of the group, property should be transferred (p.422) on death in a predictable way to those considered best entitled to it, rather than to those whom the deceased might personally prefer.2 Fleming calls the rules of inheritance and succession ‘the genetic code of a society’.3 In this sense, Islamic succession rules seek to guarantee that ‘the next generation will more or less have the same structure as the one that preceded it’.4 In Islamic law, the primary aim of succession is to provide for the surviving relatives and dependants of the deceased who are linked to him by marriage or blood. Thus, Islamic succession law reflects the general scheme of Islamic family structure, moulded around the concept of the extended family, whereby the parents of the deceased have a prominent position and the descendants, whether female or male, always receive a portion.5

This contrasts with pre-Islamic laws and customs of succession in seventh-century Arabia. Pre-Islamic Arab tribal succession structures were designed to keep ‘property within the tribe and


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maintain its strength as a fighting force’.6 To avoid fragmentation and dismantling of the tribes’ property, spouses and female family members were excluded from inheritance and the latter were sometimes even the object of inheritance.7 Additionally, only men capable of carrying a weapon and thus able to defend the tribe were entitled to inherit.8 The qur’anic injunctions mitigated the strong patriarchal character of succession law and custom in the Arab Peninsula, as they entitle female members of the family and persons that are not relatives (ie spouses) to inherit. In the Islamic system, no difference is drawn between mothers and fathers, married and unmarried children, and ancestral and self-acquired property. Furthermore, Islamic law does not adhere to the principle of primogeniture.9 The overriding goal of this system thus lies in the ‘establishment of a principal equality amongst the believers under the common frame of the new religion’.10 It remains controversial whether the Islamic rules established a totally new system of inheritance that superseded the old structures,11 or whether the qur’anic injunctions came to complement and renew the old system.12 It is, however, evident that the Islamic rules of succession improved the position of women and closer relatives to the detriment of male agnatic ascendants and descendants, and thus changed the structure of inheritance in the Arab Peninsula.

(p.423) II. Principles of classical Islamic intestate succession law1. Sources of lawThe rules of intestate succession law in all Islamic countries share a common base in the sources of Islam. The first primary source13 is the Qur’an (qur’ān), which is considered to be the direct revelation of God. The so-called traditions of the Prophet Mohammad (sunna) stand as the second primary source, consisting of collections of narrations (ḥadīth), which comprise the sayings, deeds, or implied consent of the Prophet.14 From this starting-point, an extremely large and rich literature on intestate succession law has been developed by individual scholars,15

influenced particularly by their respective affiliations to the different schools of law16 that emerged during the first three centuries of Islam.17 Thus, according to a famous hadith of the Prophet Mohammad, the laws of inheritance constitute ‘half of the sum of all useful human knowledge’.

2. Common principlesThe rules and regulations of succession law as held by the Islamic schools of law display a great degree of variety. There are, however, fundamental principles shared generally by all of them. First, intestate succession is compulsory succession. It is not confined to where the deceased has failed to arrange the devolution of his property,18 but also operates where he has disposed of more than one-third of his property, as freedom of testation is limited to this amount under Islamic law.19 The legal heirs cannot be disinherited, nor can their share be reduced at the will of the deceased. They are only excluded from inheritance when they are unworthy to inherit. The reason for this lies (p.424) in the conception that the interests of the legal heirs must be protected by law, and their respective claims must be balanced against each other in an equitable manner.20

The second principle is that of consanguinity and affinity as grounds of intestate succession.21

Thus, the right of inheritance in Islamic law rests on blood relationship and marriage. Extra-


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marital and adopted children (if any) have no right of inheritance.22 The same is true for temporary spouses under Shiite law.23

Thirdly, the right to inherit is equal for men and women: both benefit from inheritance. Generally, however, when heirs of the same class and degree24 but of different sexes inherit together, the male heirs receive double the share of the female heirs.25 This is explained by the greater economic burden of males in society and under the law, in that they have to provide for the dower (mahr) and maintain women financially. Hence, it is said that this rule is meant to ensure greater equity between the sexes.26

Fourthly, pursuant to the rule of proximity, the principle of representation is not acknowledged under classical Islamic law. Accordingly, a predeceased person’s right to inherit does not pass to his descendants (or ascendants) as long as an heir of the same class exists who is related to the deceased to the same degree as the predeceased person.27

Finally, the devolution of the estate follows an order of priority whereby, first, funeral expenses, secondly, the deceased’s debts and liabilities, and, thirdly, his bequests must be fulfilled.28 The remainder of the estate (if anything) is distributed among the legal heirs. Thus, no debts are inherited. If the deceased’s debts exhaust the estate, the heirs are not held liable unless they explicitly commit themselves to discharging these debts.

From this common base modern intestate succession rules have emerged in the Islamic countries. They display, however, a fair degree of disparity. This is explained first – as stated above – by the adherence of the individual country to a specific school of Islamic law. The greatest dissimilarity is certainly the different approaches to intestate succession law under Shiite- and Sunni-influenced countries. These differences derive mainly from diverging interpretations of the sources of law as well as from the distinct contours given to the meaning and effect of the qur’anic injunctions on intestate succession. Secondly, the extent and level of the reception of religious law into national law vary. Whereas some countries lack codification and generally refer to the uncodified law of the prevalent Islamic school of law as far as succession matters are concerned,29 others have comprehensively codified intestate succession rules.30 Thirdly, there are countries where succession law (p.425) can be found in piecemeal legislation, with a further reference to Islamic law in case of a legal lacuna.31 Finally, the degree to which national legislators have been willing to adapt Islamic rules to modern needs and demands has also shaped each country’s law.

In what follows, I will examine the modes of devolution of the estate under the Sunni and Shiite schemes of inheritance and their reception by modern legislators in the Islamic countries. Specific attention will be given to the legislative reform implemented in matters of intestate succession.

III. The devolution of the estate under Sunni and Shiite lawThe distribution of the estate operates differently under Sunni and Shiite law and, for that matter, also in the countries under their influence. Among the Sunni schools of law, the variations in intestate succession are rather minimal and arise only in very specific cases. Thus,


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the following account of Sunni law will be based on the Hanafi school of law, as it operates in Egypt,32 in most countries of the Mashrek,33 as well as in Afghanistan34 and Pakistan.35

In the same vein, the Twelver Shiite scheme represents the Shiite sects.36 Twelver Shiite law is the basis of intestate succession law in Iran37 and Iraq,38 as well as for the Shiite populations of Afghanistan,39 Lebanon,40 and Bahrain.41

(p.426) 1. Succession under Sunni lawDevolution under Sunni law is elaborate and very detailed. As a general rule, heirs are divided into three categories.42 The first category encompasses the so-called qur’anic heirs or sharers (farā’iḍ), that is, heirs who are nominated in the Qur’an and are entitled to a fixed share of the estate. The second category consists of heirs who are not allotted a fixed share, but receive the residue once the qur’anic heirs have been satisfied. These heirs are called residuary or agnatic heirs (ᶜaṣaba).43 Finally, there is a third category consisting of the ‘distant kindred’ (dhawū al-arḥām).44 They are relatives who are neither qur’anic nor agnatic heirs.45

Each of the first two categories follows its own rules, and generally heirs of both categories inherit together. However, the specific constellation of each case and the various combinations of qur’anic and agnatic heirs may influence the positioning of heirs within one or the other category. Whereas qur’anic heirs do not influence the agnatic heirs’ right to inherit and cannot convey the entitlement to inherit to any other person, male agnatic heirs may, as will be shown below, do both.46 Thus, each instance has to be viewed in the context of the particular circumstances of the case. The third category of distant kindred heirs is generally only relevant in the absence of the first two categories.47

(a) Qur’anic heirsThe first category consists of heirs who are designated on the basis of their respective fractional shares in the Qur’an, which explains the name qur’anic heirs or sharers. The qur’anic heirs comprise six females and three males.48 They are the mother,49 the surviving wife,50 the daughter,51 and the germane,52 consanguine,53 and uterine sisters.54 The (p.427) male sharers are55 the father,56 the husband,57 and the uterine brother.58 The Sunni schools have added two female heirs (the son’s daughter59 and the grandmother60 ) and one male heir (the grandfather61) who are not mentioned in the Qur’an. Rather, their positioning in this category is derived from the sunna of the Prophet.62 Not all individuals designated as qur’anic heirs necessarily receive an inheritance, because some can be excluded by others. This is done in accordance with the principle of proximity, whereby heirs closer in degree exclude more distant heirs. Thus, a son’s daughter is excluded by a daughter, and a grandmother is excluded by the mother.

However, there are primary qur’anic heirs who can never be excluded completely from inheriting. They are the parents of the deceased, both spouses, and the children.63 Depending on the individual case, the respective shares are one-eighth, one-sixth, one-quarter, and one-half. Because of the high number of qur’anic heirs, it may happen that the prescribed shares exceed 100 per cent. In such a case, the fractional shares must be reduced proportionately (ᶜawl) amongst all qur’anic heirs.64


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(b) Agnatic residuary heirsResiduary heirs are not allotted a fixed share of the estate, but receive the residue when the qur’anic heirs have taken their shares.65 This category consists of three groups of heirs: the male agnatic relatives, the agnatic co-sharers, and the female agnatic relatives. These subgroups generally enjoy equal priority and – if they do not exclude each other for specific reasons – share the residue.

The male agnatic relatives are heirs who trace their relation to the deceased by a male (germane or consanguine) line.66 They are also called ‘residuary heirs in their own right’67 (ᶜaṣab bi-nafsihi). They are divided into four subgroups. The first consists of the sons (and in their absence their male issue, irrespective of degrees removed). In the absence of this subgroup, the ascendants, that is, the father and the father’s ascendants, irrespective of degrees removed, will inherit the residue; third, brothers (and in the absence of brothers, the brother’s male issue); and fourth, paternal uncles (and their issue).68 Each subgroup excludes the subgroup below it. Within the respective subgroups, the heir closest in degree takes priority. Among relatives of equal degree, a full-blood relationship ranks higher than one of half-blood.69 Furthermore, male agnatic heirs may inherit in dual capacities: both as qur’anic heir and as residuary heir. If, for example, the deceased is survived by his parents only, the mother will be given her qur’anic share and the father his. Furthermore, the father will as male agnatic heir inherit the residue.

(p.428) The second group of residuary heirs are the so-called agnatic co-sharers, also termed ‘residuary heirs in right of another’70 (ᶜaṣab bi-ghayrihi). These are female qur’anic heirs who are converted into the group of residuary heirs by a male agnate related to the deceased in the same degree as themselves.71 Thus, for instance, the daughter of the deceased – who is a qur’anic heir – will be converted to a residuary agnatic co-sharer (and lose her position as qur’anic heir) whenever she inherits together with her brother (ie the son of the deceased, who is a male agnate).72 The agnatic co-sharers consist of four subgroups: the daughters, the son’s daughters, the germane, and the consanguine sisters. They are converted from qur’anic heirs to agnatic co-sharers every time they inherit together with their brother(s), whereby the distribution of the residue then follows the principle of a double share for male heirs.73

Finally, there is the group of the female agnatic heirs, also known as ‘residuary heirs with another’74 (ᶜaṣab maᶜa ghayrihi). They consist of the consanguine or germane sisters of the deceased and as a general principle they belong to the category of qur’anic heirs.75 However, in the specific case where they inherit in the presence of a female agnatic descendant and in the absence of an equivalent male relative (ie brothers of the deceased), they inherit as residuary heirs. Thus, the closer qur’anic heir (the female descendant) converts the sisters into residuary heirs.

(c) Distant kindredIn the absence of qur’anic and agnatic heirs, the inheritance passes to the distant relatives. Distant kindred are either female relatives or relatives tracing their relationship to the deceased through a female line.76 Carroll points out that this category is termed ‘distant’, not because of the members’ degree of blood relationship, but ‘in terms of the probability that they will ever come into a share to the inheritance’.77 They are divided into four subgroups, each group


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excluding the one below. First, there are the descendants of the deceased (other than sharers and residuaries);78 secondly, the ascendants of the deceased (other than sharers and residuaries);79 thirdly, the descendants of the parents of the deceased80 (other than sharers and residuaries); and fourthly, the descendants of the ascendants, irrespective of degrees removed (other than residuaries).81

The distribution among the subgroups is complex.82 For the sake of this chapter it suffices to refer to some general principles. If there is only one distant relative, he or she will be the sole heir. With two or more distant relatives, the distribution varies according to the gender of the intermediate ancestor through which the relationship to the deceased (p.429) is established. If they are of the same gender, the estate is divided per capita, and if the claimants are of different gender, the rule of a double share for males applies.83 Thus, if the children of the predeceased daughters are to inherit, the grandson receives double the share (that is, two-thirds) of the granddaughter (one-third). If, however, the intermediate ancestors are of different sexes, the intermediate male ancestor is assigned double the share of the female ancestor. The share of the male and female ancestors will descend to the respective claimants, who claim through them, irrespective of the gender of the claimant. If the deceased is therefore survived by his daughter’s son’s son (A) and his other daughter’s daughter’s son (B), A will be allotted the share of his predeceased father (two-thirds) and the other grandson, B, the share of his predeceased mother (one-third).

2. Succession under Shiite lawThe terminology used in Shiite law is similar to that of Sunni law. It also distinguishes between qur’anic and residuary heirs. However, the meaning of these terms varies. First, the qur’anic heirs under Shiite law include only those persons named in the Qur’an and thus exclude the son’s daughters and the grandparents, all of whom are added under the Sunni scheme on the basis of specific Sunni traditions.84 Secondly, these terms relate to the portions ascribed to the individual heirs rather than to different classes of heirs. As such, the term for residuary heir in the Shiite terminology is not ᶜaṣaba but qarābat, which means ‘kin’ or ‘blood relative’, without a reference to the gender of that person or an indication of the nature of the link between the heir and the deceased.85

(a) Three-class hierarchyShiite law puts its emphasis on the nuclear family and the direct ascendants and descendants, irrespective of gender.86 Thus, for the sake of identifying the heirs, all blood relatives are divided into three classes, irrespective of the strength of the blood tie, the line from which the relation to the deceased is traced, the gender, or their capacity as qur’anic heirs. Heirs of a higher class inherit to the exclusion of the heirs of a lower class.87 The first class consists of the descendants (irrespective of degrees removed) and the parents of the deceased. They inherit together. In the absence of descendants and parents, the second class comprises the grandparents and the great-grandparents (irrespective of degrees removed) and the siblings (and in their absence their descendants, ie the nieces and nephews of the deceased). They also inherit together. In the absence of heirs of the first and second class, the uncles and aunts of the deceased, and in their absence their descendants, inherit as heirs of the third class.88


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(b) Distribution of the estateWithin the classes, the qur’anic heirs take first and the rest is divided between the other relatives (if any) under the known male/female ratio. If the children of the deceased have all predeceased, their descendants of the same degree take per stirpes. Thus, under Shiite law, the principle of representation, which is not otherwise followed, is applied in relation to the calculation of the shares of the descendants of a predeceased heir. (p.430) Accordingly, the descendants of a predeceased child take the portion that the child of the deceased – had he been alive – would have taken. In Islamic Shiite terminology, the predeceased would-be-heirs are considered as ‘roots’, from which their descendants take as ‘branches’.89 If, consequently, the deceased leaves (only) three grandchildren behind, two from one son (A) and one from another son (B), under the Shiite scheme the shares would first be allocated to the two predeceased sons, who then transmit them to their own descendants. As a result, the sons of son A would each inherit one-quarter, whereas the son of son B would get one-half of the estate.90

If the sum of qur’anic shares exceeds 100 per cent, the shares are not (as in Sunni law) reduced proportionately, but subtraction takes place from the daughters’ and the germane and consanguine sisters’ shares.91 On the other hand, a surplus is – in the absence of residuary heirs – shared by all qur’anic heirs proportionately.92

3. EvaluationShiite and Sunni law start from the same primary source of law, the Qur’an, and share the basic principles of intestate succession as sketched above. However, from the very outset they diverge as regards the interpretation of the relevant verses of the Qur’an. Whereas according to Sunni law the qur’anic injunctions have come to amend specific cases, leaving the pre-Islamic system otherwise in place, the Shiites have taken the dictate of each verse not as a particular injunction for a specific instance, but as indicating fundamental principles of intestate succession. For example, the qur’anic provision entitling a daughter to inherit together with sons has been understood to establish a general rule of inheritance for all female relatives.93 Shiites thus claim that the Islamic injunctions have brought a new and comprehensive scheme of transfer of property upon death. This new system gives priority to the immediate family of the deceased, leaving no room for a preferential position of male agnatic relatives, reminiscent of tribal allegiance. Moreover, under Shiite law, no relative is excluded solely because of his or her gender or because he or she is linked to the deceased by a female intermediate.94 Male and female relatives of the same degree inherit together, even if the male usually receives double the share of the female. Shiite law thus adheres strictly to the principle of proximity. The most salient feature of Sunni inheritance law, on the other hand, remains the privileged position of the male agnatic blood relatives as residuary heirs, an entitlement not derived from the Qur’an, but from the sunna.95

An example will illustrate the radically different outcomes. If a deceased is survived by a daughter, a mother, and a brother, under the Sunni scheme the mother will get one-sixth, the daughter one-half (or three-sixths), and the remaining one-third (two-sixths) will be inherited by the brother in his capacity as residuary agnatic heir. Under Shiite law, however, the brother is excluded by the daughter because she is in the (p.431) first class, excluding more remote blood relatives, irrespective of gender and link. Thus, the mother would receive one-sixth and the remaining five-sixths would be inherited by the daughter.


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These different outcomes have led to the phenomenon of religious conversions of convenience.96

Accordingly, in some countries such as Iraq or Lebanon, people have converted to the Shiite sect in order to fall under its scheme of inheritance. These conversions of convenience have been done in particular by parents having only daughters, so as to preserve their daughters’ right of inheritance against claims of more remote agnatic relatives.97 Furthermore, in Pakistani courts, numerous cases have arisen where heirs contested the deceased’s belonging to one or other sect in order to secure their share of the inheritance.98

As a common point, both systems share an emphasis on blood relationship, even if the circle of potential heirs differs. They also largely agree on the position of the surviving spouse. This is because the qur’anic verse regarding the spouses’ share is rather clear and straightforward, leaving less room for interpretation differences.99 However, under the Shiite scheme, the surviving wife is disadvantaged on the basis of Shiite hadiths.

IV. The position of the surviving spouse1. Right to inherit and fractional sharesClassical Islamic law affords a special position to the surviving spouse who, under both systems, stands outside the class hierarchy. Considered a qur’anic heir, the spouse is never excluded and never excludes any other relative as he or she inherits simultaneously with the blood relatives of any other applicable class or category.100 However, whereas the right of spouses to inherit is acknowledged irrespective of their gender, the portions afforded to them vary according to their sex and the presence or not of descendants. Thus, in the presence of descendants the portion of the husband is one-quarter, and in their absence one-half. The share of the surviving wife is exactly half of these portions.101 A further reduction of the nominal inheritance share of the surviving wife is made under the rule of polygyny. Thus, the share reserved for the widow has to be divided equally among all surviving wives of the deceased.102 These rules are followed without exceptions in all Islamic countries.103 As a consequence, in the presence of descendants the share of a (co-) widow can be as little as one-thirty-second of the estate.104

(p.432) 2. The spouse as the sole heirAs a general rule, whenever the deceased leaves only one heir, that heir is entitled to the whole estate. This is known as the principle of return (radd). Accordingly, if after the assignment of the qur’anic shares no residuary heir exists, the residue reverts to the sharers in relation to their respective fractional shares.105

This does not, however, hold true for the spouses. Under Sunni law, where the sole heir is the surviving spouse (irrespective of gender), the spouse inherits his or her respective share and the remainder of the estate will go to the state.106 Under Shiite law, this applies to the surviving wife only. The residue of the estate is treated as the estate of an heirless person and will go to the state. The surviving husband is treated differently as he takes precedence over the state and is entitled to the residue, thus participating in the return.107

This classical rule today still applies in Iran.108 Other countries have amended this rule, giving the wife an equal right of return; in some cases this has been done by legislation, such as in Sudan,109 Tunisia,110 Syria,111 Algeria,112 Morocco,113 and Egypt.114 Yet, in other countries it was the courts that developed and changed the rule. This happened, for example, in Pakistan,


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where the rights of the husband and the wife were put on an equal footing: when inheriting alone, he or she takes the whole estate.115

3. The right to inherit immovable propertyThere is a further important difference between the Sunni and Shiite schemes as regards the subject matter of the inheritance. Under Sunni law, and indeed in all Sunni countries, the wife inherits as regards all property of the deceased. There are no restrictions as to the subject matter of the inherited property. However, under Shiite law, a distinction is made between the movable and immovable portions of the estate. This rule has no basis in the Qur’an and is derived from a number of hadiths narrated by Shiite imams.116 The general thrust of these narratives is that the bond between husband and wife is based on affinity and not on a blood relationship.117 If the widowed wife were to (p.433) inherit land owned by her deceased husband and then later remarried, that land would no longer be part of the late husband’s family property. Many Shiite jurists have issued legal opinions to reinforce this view with the result that women under Shiite law have for a considerable time been deprived of any share in the immovable property of their deceased husband’s estate.118

4. Matrimonial property regime

The notion of a matrimonial property regime is alien to classical Islamic law.119 This aspect of the spousal relationship is only touched upon from the perspective of the wife’s financial independence.120 Based on this principle, a general scheme of separation of property has been deduced in Islamic family law. Islamic countries have taken up this interpretation and, in the absence of an agreement to the contrary, the spouses will ex lege live in a regime of separation of property.121 To this extent, the matrimonial property issue does not influence the outcome of the surviving spouses’ succession to his or her predeceased spouse’s property.

V. The push for reformsIntestate succession law reflects Islamic family structure, whereby the different family members assume different rights and duties, in particular according to their gender and their link to the deceased. As such, succession law exemplifies the Islamic concept of social values, priorities, and hierarchies within the family.122 Accordingly, the claims of the children of the deceased assume priority over those of the spouse, who will never receive more than one-quarter (if the surviving spouse is the husband) of the property of the deceased spouse. Additionally, the shares allotted to male heirs are generally twice as large as the shares of female heirs. This is because, according to Islamic family law, males have to provide for their families, whereas no such burden falls on females.123

These structures have for many years constituted the social and societal backbone of families in many Islamic countries. However, over the course of the last century and with the emergence of nation-states in the Muslim world, the individual countries have evolved legally, economically, and socially in various directions and at different speeds. Thus, the need to amend or to adapt classical succession law has been felt differently in each country. Interestingly, the reform of family law has been on the agenda of Islamic countries continually in the last century. Mallat has labelled ‘the search for equality’ as (p.434) an overriding principle of Middle Eastern family law in the last decades.124 This pressure for reform and the willingness to achieve more equity and fairness in family law has not been echoed to the same extent in intestate succession law,


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and most Islamic countries have incorporated the Islamic rules without substantive changes to national law.

There is only one remarkable exception that should be mentioned. When Iraq codified family and succession law in 1959, an Article (Article 74) was included in the new Personal Status Law (hereinafter, PSL), which stated that intestate succession shall follow Articles 1187 to 1199 of the Iraqi Civil Code of 1951. These latter Articles were derived from the Ottoman Land Law of 1858 (which was itself drawn from German law125) and dealt with the succession to the use of governmental land. According to these rules, the distribution of the estate would basically follow a parentelic scheme126 comparable to the German system,127 thus putting female heirs on an equal footing with male heirs, favouring descendants over ascendants, and including the rule of representation.128 Replacing classical Islamic law by a parentelic system without regard to gender or agnatic relations was indeed a ‘revolutionary innovation’.129 The reform was justified by the need to unify Iraqi law, as half of the population was Shiite and the other half Sunni Muslims. However, as Sunni and Shiite succession rules are so different, a choice between them was not deemed feasible.130 Furthermore, the reformers carefully based the reform on an interpretation which saw the relevant qur’anic injunctions as being recommendations rather than commands.131 Notwithstanding the Islamic discourse involved, the reform was nevertheless reversed just four years later. Stirred by the strong opposition of the clergy, in 1963 the initiator of the reform, Abdel Karim Qassem, was toppled, Article 74 PSL was repealed, and Islamic intestate rules were restored.132 Interestingly, however, the regulations contained in the Iraqi Law of Personal Status do not follow the Sunni school of law. Instead, they are mainly based on Shiite law: they therefore forego the privileged position of the male agnatic heirs and adhere to the three-class hierarchy of Shiite law.133

Beside the Iraqi legislator’s venture outside the Islamic system, very few legal reforms have been carried out within the system, regardless of where it is in place. Most legislative Acts have touched upon the freedom of testation, which is severely constrained under classical Islamic law.134 The rules of intestate succession have, however, hardly been tackled by any modern jurisdiction as regards their essence. But there have been attempts to remedy certain rules of intestate succession which have been seen as causing undue hardship. Besides the aforementioned introduction of the right to return for the surviving spouse as sole heir,135 these include the prohibition under Shiite law preventing a wife from inheriting land and the exclusion of orphaned grandchildren under Sunni law.

(p.435) 1. The right to inherit land under Shiite lawAs mentioned above, under Shiite law the surviving wife is barred from inheriting the immovable property of her late husband. This rule, which was applicable in Iran until recently, resulted in particular hardship for rural women as regards the transfer of agricultural land. Only when the estate included land with buildings and/or trees could the widow claim the equivalent of her respective qur’anic share of the value of the buildings and/or trees, but she could neither claim the land itself nor its value.136 In 2009, the Iranian legislator amended that rule.

In fact, the view that a widow should be excluded from inheriting land is not unanimously acknowledged by Shiite jurists. Using alternative interpretations of the relevant sources, some jurists have issued fatwas whereby a wife is entitled to all of her husband’s property, including


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land, buildings, and trees.137 Others have limited the prohibition against succession to land to residential sites and acknowledged the widow’s rights to other types of property, especially agricultural land. Many scholars have argued that the prohibition must apply only to childless widows, as there are no descendants to whom the property can be passed.138 Finally, there was also the opinion that the wife should be excluded from inheriting the land itself, but that she ought to be awarded a corresponding right to its value, according to her share. The discussions in Iran culminated in an intervention by the Supreme Religious Leader, Ayatollah Ali Chamenei, who issued a fatwa in January 2009, adopting the latter view.139 The Iranian Parliament accordingly amended the relevant Articles of the Iranian Civil Code, which now award the surviving wife a right to the value of immovable property, according to her share.140 As a result, Iranian women still do not inherit immovable property as such, but they will receive a fractional share of the value of the land.

2. Orphaned grandchildren: inheriting via representation and obligatory bequest

Grandchildren are excluded from inheriting, as long as the deceased leaves behind children.141

The principle of representation is unknown in classical Islamic law. As long as there are relatives of the same degree, the heirs of a predeceased heir cannot step into his or her position to inherit his or her share.142 This is explained by two facts. First, the rule of proximity (ie the order of priority within the ranks of relatives) prohibits representation: a relative of closer degree excludes a more remote one.143 Secondly, inheritance rights arise only with the death of the deceased. As a result, if one of the potential heirs dies before his or her parent, he or she has not acquired any inheritance right that (p.436) could be passed to his or her own descendants.144 The rejection of the principle of representation and the resulting denial of any inheritance rights for orphaned grandchildren is one of the issues that has been strongly criticized in many Islamic countries. Two alternative ways were chosen to overcome this problem: one was the introduction of the principle of representation and the other was the institution of the obligatory bequest.

(a) Introduction of representation in Pakistani law

In 1956, a report of the Pakistani Commission on Marriage and Family145 explicitly urged the government to tackle the problem of orphaned grandchildren.146 The argument of the Commission was based mainly on the idea of fairness and equity in Islamic law, such as that a large number of orphaned grandchildren could not be left ‘deprived of an inheritance altogether’.147 The Pakistani legislator reacted accordingly and introduced the principle of representation into the Muslim Family Laws Ordinance 1961 (hereinafter, MFLO).148 Under section 4 MFLO, the children of the predeceased child (son or daughter) receive per stirpes the share which the predeceased son or daughter would have received if alive at the time of the death of their parent.149

(b) Obligatory bequestsIn Arab countries, an alternative solution was chosen for the problem of orphaned grandchildren. Egypt was the first country to introduce the obligatory bequest (al-waṣiyya al-wājiba). By devising this new institution, the Egyptian legislator aimed at tackling the problems caused by the exclusion of orphaned grandchildren, without encroaching upon the general rejection of the principle of representation under Islamic law.150


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Generally, under Sunni law a bequest in favour of an intestate heir is not permissible.151 This is based in particular on a prophetic tradition that states: ‘No bequests in favour of a legal heir.’152

The purpose of this dictate is to prevent interference with the rules of compulsory succession and to protect intestate heirs from the conflict that would become inevitable if some heirs were favoured over others.153 However, many modern legislators in Sunni countries have abolished this rule.154 The first country to do so was (p.437) Sudan,155 followed by Egypt.156 The legislators justified the amendment with social change, but were careful enough to base their decision also on the opinions of Muslim scholars, so as to ensure Islamic legitimacy.157

With the path for bequests to legal heirs now open, Article 76 of the Law on Testamentary Dispositions of 1946158 introduced an obligatory bequest in favour of the descendants of a predeceased child in Egyptian law. Accordingly, orphaned grandchildren, who are excluded from inheritance by the existence of a living child, take their predeceased parent’s would-be-share as an obligatory bequest. The bequest is limited to a maximum of one-third of the estate, which corresponds to the amount of the property that a testator may dispose of under the Islamic law of testate succession.159 Other Arab countries have followed the Egyptian model,160

albeit some with certain restrictions and amendments. Under Syrian161 and Jordanian162 law, for instance, the sole beneficiaries of this rule are the descendants of the sons.

The results of these two alternatives may coincide, but they may also differ. If the deceased is survived by a son and a predeceased daughter’s daughter, the results will be the same under the Pakistani principle of representation and under the Egyptian scheme of an obligatory bequest.163 But if there are more predeceased children of different sexes, the outcome differs. This is due to the fact that under the principle of representation, the portions to be allocated to the living and predeceased children are first calculated and the shares of the predeceased children are then transmitted to their own children. Under the Egyptian scheme of the obligatory bequest, the intermediate ancestors are not taken into account, as the bequest is directly awarded to the grandchildren and distributed among them according to the principle of a double share for grandsons.

The institution of the obligatory bequest is also known under Iranian law, albeit in the context of the adopted child. Adoption is generally said to be prohibited in Islamic law. Its reception in Muslim countries is, however, diverse. Whereas it is explicitly banned, for instance, under Moroccan164 and Algerian law,165 Tunisia has enacted (p.438) an Adoption Law conferring full rights on the adopted child.166 In Iran, the Law on the Protection of Children without Guardian of 2013167 deals with the issue of adoption (farzand-khāndigī or sarparastī). Accordingly, a bond similar to adoption can be established between a child and new parents.168 The inheritance rights in respect of the biological family and the adopted child nevertheless remain in place, and intestate succession rights are not established between the adopted child and his adoptive (legal) parents. However, according to Article 14 of the Law on the Protection of Children without Guardian, adoption is only granted when the adoptive parents undertake to transfer some property or financial rights to the adopted child. The law does not specify in what manner this is to be done. In practice, the social welfare centre and the youth courts request the parents to make an irrevocable official will, in which one-third of the parent’s property is bequeathed to


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the adopted child. By enacting this provision, a de facto obligatory bequest has been introduced into Iranian law.

3. EvaluationNeither the introduction of the principle of representation nor the obligatory bequest has gone unchallenged. In Pakistan, in particular, it was argued that representation infringes the proximity principle on which Islamic intestate rules are based.169 This is, however, rather unconvincing as Sunni law does not adhere consistently to this principle: male agnatic relatives inherit – contrary to this principle – alongside female heirs of closer degree.170 The basic tenets of this criticism thus exhibited a strong bias towards the patriarchal family and the rights of male relatives. Arguing that grandchildren whose mother had died would still inherit from their fathers, critics opposed conferring on these grandchildren a right of inheritance channeled through their (deceased) mothers. Children of a predeceased daughter were said to be ‘neither legally on an equal footing as the children of the son nor on any sentimental ground’.171

The reality of social change in Pakistan, however, made it clear that the allegiance to the agnatic family had lost most of its force.172 Even if the concept of the extended family was still operative in Pakistani society, the focus of family life had shifted to a family (p.439) concept composed of the direct ascendants and descendants.173 These changes were the driving force behind the introduction of the principle of representation in Pakistani intestate succession law.174

According to Coulson, the impetus for reform lay not so much in the idea of providing for a ‘helpless orphaned child’, but in changed ideas regarding the responsibility of ancestors for their direct descendants.175 Accordingly, he argues, ‘the responsibilities of the deceased are not properly fulfilled if the succession rights of one family line are to be totally extinguished because of the chance occurrence of the pre-decease of its immediate link with the ancestor’.176

Additionally, the principle of representation, even though not applicable under Islamic law, proved less problematic to implement in Pakistan as compared to other Islamic countries, as it was already known and applied under customary law.177

As a result, the introduction of section 4 MFLO has radically changed the position of the children of a predeceased daughter – individuals who, in Sunni law, are in the category of distant kindred and rarely share in the estate. The Pakistani rule is a straightforward one which does not differentiate between grandsons and granddaughters, or refer to the gender of the predeceased child. It regulates the share of grandchildren in a systematic way and, unlike the obligatory bequest, leaves the deceased free to dispose of his property untouched.

Although the institution of the obligatory bequest has enjoyed a wide reception in many Islamic countries, its dogmatic justification in Islamic theory remains weak and many authors have questioned its legitimacy.178 The idea of an obligatory bequest is mainly based on the writings of the Andalusian scholar Ibn Ḥazm (died 1064), who adhered to the Sunni Zahiri school of law.179

He categorizes testamentary dispositions into different groups, one of these being the group of obligatory wills (farḍ or wājiba) in favour of relatives who are not legal heirs.180

Furthermore, the legal nature of obligatory bequests, as well as their categorization as part of testate or intestate succession, remains unclear.181 In the various laws of personal status, the obligatory bequest is regulated in the sections on testate succession, but it follows the scheme of


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intestate succession as its application is mandatory. Additionally, the distribution of the obligatory bequest among several grandchildren follows the respective rules of intestate succession (double share for the males). Thus, it seems that obligatory bequests must be classified as an inheritance share rather than as a true legacy. Furthermore, the obligation to award a bequest to anyone remains rather problematic as it infringes upon the – already limited – freedom of testation of (p.440) the deceased: the obligatory bequest will be given priority over any voluntary one, in clear conflict with the will of the testator. Moreover, it will also be given priority over the shares of the legal heirs, as only the adjusted estate (ie the estate after fulfilment of the bequest) devolves to the legal heirs.

As a result, the obligatory bequest must be ranked amongst a series of hybrid and ambivalent legislative measures to which legislators of Islamic countries often have recourse. This is because straightforward reforms of the religious law either seem unfeasible, as in Egypt for instance, or have provoked a backlash, as the example of Iraq has shown. In Iran, the legislator did not introduce the obligatory bequest in favour of excluded grandchildren. Instead, it used this device to procure for the adopted child – a concept which itself is highly problematic and controversial in Islamic law – a hybrid form of compulsory share in the inheritance of his or her adoptive parents.

VI. ConclusionThe Islamic scheme of inheritance cannot be pigeonholed within the standard categories of the parentelic or three-line systems. Rather, it stands for a third, different system, where classes are based on the presumed closeness of the heirs to the deceased under a pre-conceived family scheme. Under Sunni law, this takes the form of an entitlement of close relatives as exemplified by its twelve qur’anic heirs together with the strong position of the male agnatic heirs. Shiite law adheres to a different model of the ideal family, resting upon the specific ties and responsibility of the immediate family and rejecting the privileges of agnatic relatives. On the other hand, both systems, and accordingly all Islamic countries, favour the descendants of the deceased over the surviving spouse, and distribute the estate by a ratio of two to one in favour of male heirs of the same class and degree. These fundamental principles have not been altered in any country, even though demographics and the distribution of wealth in modern society do not correspond to the social setting for which the Islamic system was originally developed.

In the literature, it is often argued that the strong qur’anic basis upon which much of succession law rests has resulted in this area of law remaining untouched for centuries.182 However, when examining the relevant qur’anic provisions, a different picture emerges. The verses related to intestate succession in the Qur’an amount to eight verses. Four (4:7–9, 33) deal with general principles regarding access to succession, one with the shares of the deceased’s children and parents (4:11), one with the shares of spouses (4:12 first part), and two with the share of the deceased’s siblings (4:12 second part; 4:176). The bulk of the rules and regulations are thus based on the sunna and the various and abundant interpretations and legal works of Muslim scholars.

The verses and injunctions of the Qur’an related to family law outnumber the qur’anic verses on intestate succession.183 Interestingly, reforms in family law have been implemented in the last


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decades in practically all Islamic countries to a far wider extent.184 Thus, it is doubtful that it is the qur’anic foundation of intestate succession rules that has inhibited legislative reform.

(p.441) The reasons for the quasi-stagnation of legal development in intestate succession and the lack of pressure for change have to be sought elsewhere. First, one could think of a general societal consent according to which preconceived ideas of a fair distribution of the estate – established by a divine authority – ought to be followed.185 Secondly, the social and moral dependencies within the families and the general support and maintenance duty of men vis-à-vis women have created a strong reliance of females on the support of their male relatives. Annelies Moors, for example, explores the structures of transfer of property within Palestinian families, where women are ready to give up their inheritance right in order to gain and perpetuate the financial and moral support of their male relatives.186

Finally, and more compellingly, the reason for the lack of an impetus to reform lies in the fact that to a great extent family property is passed to the next generation while the owner is still alive. In fact, the history of intestate succession in Islamic countries is also the history of a circumvention of the rules on compulsory succession. David Powers, for instance, traces in his analysis of various historical court cases and fatwas the strategies adopted by Muslims to circumvent the rules of succession by transactions inter vivos.187 In fact, in Islamic law a strict line is drawn between post mortem and inter vivos transactions. It is only upon the precise emergence of a deathbed illness that the estate of the deceased is fixed.188 Prior to this moment, an individual is free to dispose of his or her property without any constraints.189 There is thus a significant difference between the power of a person to dispose of property while alive, as opposed to the limited power to make arrangements for the disposal of property upon death. The reasons for circumventing intestate succession law are grounded mainly in the fact that the distribution scheme under Islamic law is often felt as producing an inappropriate distribution of the estate, which does not reflect the preferences of the deceased.

Where reforms have taken place, their striking feature is their piecemeal character. In 1970, Noel Coulson wrote that the ‘ad hoc approach to particular problems is perhaps inevitable at the present transitional stage of the law reform movement’.190 Over forty years later, a vision for a comprehensive consideration and development of the system of family and succession law as a whole is still missing. Individual issues are treated in isolation. Moreover, this method of fragmentarily amending a traditional – and as such coherent – system has led to inconsistencies and contradictions in the family and succession laws of Islamic countries. The undesired side effects have been to render the system disjointed and vulnerable. The longstanding dilemma of the legal reformer in Islamic countries remains: while the immense creativity with which legislators have bent, twisted, and realigned legal rules is as fascinating as their ability to justify reforms with ever-fresh justification in Islamic sources, the emergence of a broader policy on the direction to be taken would be highly desirable.

Notes:(1) For the purpose of this chapter, the term ‘Islamic countries’ refers to countries in which family and inheritance law are based on the religious sources of Islam. This includes all the countries of the Arab League, Iran, Pakistan, Afghanistan, as well as Indonesia and Malaysia. It excludes Turkey, as Turkish family and succession law are based on Swiss law. On the reception


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of Swiss law in Turkey, see Paul J Magnarella, ‘The Reception of Swiss Family Law in Turkey’ (1973) 46 Anthropological Quarterly 100–16 ; Yeşim Atamer, ‘Rezeption und Weiterentwicklung des schweizerischen Zivilgesetzbuches in der Türkei’ (2008) 72 RabelsZ 723, 726 .

(2) Noel J Coulson, Succession in the Muslim Family (1971) 1 .

(3) John G Fleming, ‘Changing Functions of Succession Laws’ (1977) 26 AJCL 233 .

(4) Fleming (n 3) 233.

(5) Mathias Rohes, ‘Testierfreiheit: Islamisches Recht’, in Reinhard Zimmermann (ed), Freedom of Testation/Testierfreiheit (2012) 175.

(6) Coulson (n 2) 29; Hammūdah ᶜAbd al ᶜAṭī, The Family Structure in Islam (1977) 253 ; but see Powers, who argues that two parallel systems of succession existed in pre-Islamic times, one being nomadic and based on seniority, and one sedentary, particularly around the area of Mecca where a transition of family structures towards the nuclear family was taking place according to which both men and women would inherit: see David Powers, ‘The Islamic Inheritance System: A Socio-Historical Approach’ (1993) 8 Arab Law Quarterly 13, 15 ff ; see also Annelies Glander,Inheritance in Islam (1998) 33 .

(7) Glander (n 6) 33 f; W Robertson Smith, Kinship & Marriage in Early Arabia (1903, repr 2009) 117 ff .

(8) Benjamin Jokischs, ‘Der Einfluss religiöser Vorstellungen auf die Entwicklung des Erbrechts: vom vorislamischen zum islamischen Erbrecht’, in Reinhard Zimmermann (ed), Der Einfluss religiöser Vorstellungen auf die Entwicklung des Erbrechts (2012) 188.

(9) ᶜAbd al ᶜAṭī (n 6) 255; Hamid Khan, The Islamic Law of Inheritance (2007) 41 . There is an exception to this, as under Shiite law the eldest son inherits the Qur’an, the personal clothes, the sword, and the ring of his father, Iran (Art 915 CC).

(10) Jokisch (n 8) 193.

(11) Cf David Powers, ‘The Islamic Inheritance System’ (1998) 5 Islamic Law and Society 285, 286 .

(12) Held particularly by Noel Coulson, A History of Islamic Law (1964) 15 ff ; see also ᶜAbd al ᶜAṭī (n 6) 253.

(13) Qur’an 4:7–9, 11, 12, 33, 176. The following translations of the qur’anic verses are fromYusuf Ali, The Holy Qur’an: English Translation of the Meanings and Commentary (1990).

(14) Parvis Owsia, ‘Sources of Law under English, French, Islamic and Iranian Law: A Comparative Review of Legal Techniques’ (1991) 6 Arab Law Quarterly 33, 40 . The Shiites have


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their own traditions collected in the so-called ‘Four Books’ (al-kutub al-arbaᶜa): see Harald Löschner, Die dogmatischen Grundlagen des šīᶜitischen Rechts (1971) 86 f.

(15) Harald Motzkis, ‘Die Entstehung des Rechts’, in Albrecht Noth and Jürgen Paul (eds), Der islamische Orient – Grundzüge seiner Geschichte (1998) 168 ; Norman Anderson, ‘Recent Reforms in the Islamic Law of Inheritance’ (1965) 14 ICLQ 349 : ‘a law of monumental scope and precision’.

(16) On the formation of the Sunni schools, see Christopher Melchert, The Formation of the Sunni Schools of Law (1997).

(17) For the account of the Sunni law of inheritance, reference will be made in particular to the Qadri Pasha Compilation (hereinafter, QPC), the first comprehensive restatement of family and succession law under the Hanafi school of law, compiled and issued by the Egyptian lawyer Mohammed Qadri Pasha in 1875: Muḥammad Qadrī Bāshā, kitāb al-aḥkām al-sharᶜiyya fī al-aḥwāl al-shakhṣiyya ᶜalā madhhab al-imām Abī Ḥanīfa an-Nuᶜmān (1900) ; for an English translation, see Wasey Sterry and N Abcarius, Code of Mohammedan Personal Law According to the Hanafite School by Mohammed Kadri Pasha (1914) . Although it was never enacted as law, the QPC was used widely by the courts and is still today a book of reference for scholars and practitioners in the Arab world, as for example in Egypt: see Baudouin Duprets, ‘The Practice of Judging: The Egyptian Judiciary at Work in a Personal Status Case’, in M K Masud, R Peters, and D Powers (eds), Dispensing Justice in Islam: Qadis and their Judgments (2006) 143, 150. Other Arab courts equally refer to the Qadri Pasha Compilation, for instance the Syrian Court of Cassation: see Hans-Georg Ebert, Die Qadrî-Pâshâ-Kodifikation – Islamisches Personalstatut der hanafitischen Rechtsschule (2010) 20 n 44. Furthermore, the fiqh work of Hanafi scholar Sirāj al-Dīn Muḥammad Ibn Muḥammad al-Sajāwandī (died 1099 AD), kitāb al-farā’iḍ, English translation by Mahomed Ullah ibn S Jung, The Muslim Law of Inheritance (Compiled from the original Arabic authorities, and containing the text and translation of the Sirajiyyah …) (1934) has been consulted. For Shiite law, reference will be made to the fiqh work of Zayn al-Dīn al-Jubaᶜī al-ᶜĀmilī (died 1558 AD) in the Persian translation by A Luṭfī, tarjumih-i mabāḥi s-i ḥuqūqī-i sharḥ-i lumᶜih [Translation of the Legal Part of the sharḥ al-lumca] (5th edn, 2008).

(18) Coulson (n 2) 2.

(19) On freedom of testation under Islamic law, see Rohe (n 5) 170 ff.

(20) Coulson (n 2) 214.

(21) Al-ᶜĀmilī (n 17) 590; al-Sajāwandī (n 17) 5.

(22) With an exception in Hanafi law, whereby the illegitimate child inherits from his mother and her relatives: al-Sajāwandī (n 17) 94.

(23) A temporary marriage (mutᶜa, ṣīghih) is accepted only in Shiite law. In such a marriage, the marriage is concluded for a preconceived time and ends automatically. Inheritance rights between temporary spouses may, however, be agreed upon contractually. On temporary


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marriage, see Nadjma Yassaris, ‘An Islamic Alternative: Temporary Marriage’, in Jens Scherpe and Nadjma Yassari (eds), Die Rechtsstellung der nichtehelichen Lebensgemeinschaften – Legal Status of Cohabitants (2005) 557–67.

(24) Heirs of the same degree belong to the same generation, whereby every generation (birth) makes up a degree. Accordingly, the children are related in the first degree to the deceased and grandchildren in the second degree.

(25) There are, however, exceptions regarding relatives related to the deceased solely through a female link: within this group the shares are generally equal.

(26) See Zainab Chaudhry, ‘The Myth of Misogyny: A Reanalysis of Women’s Inheritance in Islamic Law’ (1998) 41 Journal of Islamic Law 41, 80–5 .

(27) Hans-Georg Ebert, Das Erbrecht islamischer Länder (2004) 97.

(28) Asaf Fyzee, Outlines of Muhammadan Law (7th impression, 1993) 381.

(29) See, eg, Saudi Arabia, Bahrain.

(30) See, eg, Iran (1935); Egypt (1943); Syria (1953); Tunisia (1956); Morocco (1957); Afghanistan (1977); Algeria (1984); Kuwait (1984); Yemen (1992); Oman (1997); the United Arab Emirates (2005); Qatar (2006); Jordan (2010).

(31) See, eg, Pakistan, Lebanon, Libya.

(32) Intestate succession is codified in Law No 77/1943 of 6 August 1943, Official Gazette No 92 of 12 August 1943. Further rules exist in the Egyptian Civil Code of 1949.

(33) The countries of the Mashrek following the Hanafi law of succession and their respective codifications (if any) are Syria (Law of Personal Status, Law No 59/1953 [qānūn al-aḥwāl al-shakhṣiyya] of 17 September 1953, Official Gazette No 63 of 8 October 1953, 4786–804); Jordan (Law of Personal Status, Law No 36/2010 [qānūn mu’aqqat — qānūn al-aḥwāl al-shakhṣiyya] of 26 September 2010, Official Gazette No 5061 of 17 October 2010, 5809–88); and Palestine/Israel (uncodified Hanafi law). The countries of the Maghreb follow the Maliki school of law: Algeria (Code of Family Law, Law No 84-11 [qānūn yataḍamman qānūn al-usra] of 9 June 1984, Official Gazette No 24 of 12 June 1984, 910–24; Tunisia (Law of Personal Status [majallat al-aḥwāl al-shakhṣiyya] of 13 August 1956, Official Gazette No 66 of 17 August 1956, 1545–54); and Morocco (Mudawwana, Law No 70.03 [qānūn bi-mathābat mudawwanat al-usra] of 3 February 2004, Official Gazette No 5184 of 5 February 2004, 421–52). The Islamic countries of South East Asia (Indonesia and Malaysia) are followers of the Shafiite school of law. The intestate succession law operative in Indonesia is found in the Kompilasi Hukum Islam, a compilation of Islamic law issued by presidential decree No 1/1991 of 10 June 1991: cf Mark Cammack, ‘Islamic Inheritance in Indonesia: The Influence of Hazairin’s Theory of Bilateral Inheritance’ (2002) 4 Australian Journal of Asian Law 295–315 .

(34) Intestate succession for the Sunni population is codified in the Afghan Civil Code, Official Gazette No 353 of 5 January 1977.


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(35) In Pakistan, succession law is only rarely codified. There is only one provision (Art 4) on intestate succession in the Muslim Family Laws Ordinance (hereinafter, MFLO), Ordinance No 8/1961 of 2 March 1961, Official Gazette of Pakistan (Extraordinary) of 13 July 1961, 1128 ff.

(36) For an overview of inheritance rules in other Shiite schools, see A Fyzee, ‘The Fatimid Law of Inheritance’ (1958) 9 Studia Islamica 61–9 ; Agostino Cilardo, ‘Some Peculiarities of the Law of Inheritance – the Formation of Īmāmī and Īsmāᶜīlī Law’ (2000) 3 Journal of Arabic and Islamic Studies 127–37 .

(37) As codified in the Iranian Civil Code of 1928–35.

(38) The regulations of the Iraqi Law of Personal Status (Law No 188/1959 [qānūn al-aḥwāl al-shakhṣiyya] of 19 December 1959, Official Gazette No 280 of 30 December 1959, 889–906) are mainly based on Shiite law: see Anderson (1965) 14 ICLQ 355 .

(39) As codified in the Law of Personal Status for Shiite Afghans [qānūn-i aḥvāl-i shakhṣiyyih-i ahl-i tashayyuᶜ], Official Gazette No 988 of 27 July 2009, 1–250.

(40) The Shiite law of intestate succession in Lebanon is not codified; courts are referred to the writings and fatwas of prominent Shiite scholars: see Ebert (n 27) 53.

(41) Succession law is not codified in Bahrain (for either the Sunni or the Shiite population): seeLena-Maria Möller, ‘Die neuen Familienrechtskodifikationen in den arabischen Golfstaaten Bahrain, Katar und Vereinigte Arabische Emirate’ [2001] Das Standesamt 325–32 .

(42) Al-Sajāwandī (n 17) 3–4.

(43) M Hidayatullah and Arshad Hidayatullah, Mulla’s Principles of Mahomedan Law (2008) s 61 ; ᶜAbd al ᶜAṭī (n 6) 261; see also Lucy Carroll, ‘The Hanafi Law of Intestate Succession: A Simplified Approach’ (1983) 17 Modern Asian Studies 634 n 8.

(44) Hidayatullah and Hidayatullah (n 43) s 61; ᶜAbd al ᶜAṭī (n 6) 261, who terms this class the ‘uterine heirs’.

(45) The eligibility of this class has long been disputed in Islamic writings: see A B M Sultanul Alam Chowdhury, ‘The Problem of Representation in the Muslim Law of Inheritance’ (1964) 3Islamic Studies 375, 381 f .

(46) Richard Kimber, ‘The Qur’anic Law of Inheritance’ (1998) 5 Islamic Law and Society 291 .

(47) In Hanafi law, there is one exception to this rule. If the deceased leaves no agnatic heir and no qur’anic heir other than the surviving spouse, he or she will get his or her qur’anic share and the rest will be inherited by the distant relative: Hidayatullah and Hidayatullah (n 43) s 61.

(48) They are the parents, the surviving spouses, the daughter, and the consanguine, germane, and uterine sisters: Qur’an 4:11–12, 176.


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(49) The mother’s share is generally one-sixth: Art 595 QPC. For exceptions, see Ebert (n 27) 193 n 527.

(50) In the absence of descendants, the wife takes one-quarter and in their presence one-eighth of the estate. Several wives share these respective fractions equally: Arts 591–2 QPC.

(51) One daughter takes one-half of the estate; two or more equally share two-thirds of the estate: Arts 590 and 593 QPC.

(52) A germane relative traces his relation to the deceased through the same pair of parents.

(53) A consanguine relative is related to the deceased only by a male line.

(54) Uterine relatives trace their relationship via a female intermediate. The sisters’ shares vary considerably according to their link to the deceased. For a detailed account, see Carroll (1983) 17 Modern Asian Studies 647–8 .

(55) Art 589 QPC.

(56) The father’s qur’anic share is one-sixth: Art 595 QPC.

(57) In the absence of descendants, the husband takes one-half and in their presence one-quarter of the estate: Arts 590–1 QPC.

(58) The uterine brother’s share is one-sixth: Art 595 QPC.

(59) The share of the son’s sole daughter is one-half of the estate, whereas two or more equally share two-thirds of the estate; but the condition is that no daughter is left out: Arts 590 and 593 QPC.

(60) One or more grandmothers receive/share one-sixth of the estate: Art 595 QPC.

(61) The grandfather’s qur’anic share is one-sixth: Art 595 QPC.

(62) Al-Sajāwandī (n 17) 228–33 with a list of the relevant Sunni hadiths.

(63) Al-Sajāwandī (n 17) 5 n 2.

(64) Art 637 QPC; Egypt (Art 15 Law No 77/1943); Syria (Art 273 PSL); Tunisia (Art 112 PSL).

(65) Al-Sajāwandī (n 17) 16; Art 608 QPC.

(66) Art 609 QPC.

(67) Translation by Sterry and Abcarius (n 17) Art 609 QPC.

(68) Al-Sajāwandī (n 17) 16.

(69) Egypt (Arts 17–18 Law No 77/1943); Tunisia (Arts 115–18 PSL).


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(70) Translation by Sterry and Abcarius (n 17) Art 611.

(71) Art 611 QPC; Carroll (1983) 17 Modern Asian Studies 663 .

(72) For a comprehensive list of the female co-sharers, see al-Sajāwandī (n 17) 6–7.

(73) Art 611 QPC; Egypt (Art 19 Law No 77/1943); Syria (Art 277 PSL); Tunisia (Art 103 PSL).

(74) Translation by Sterry and Abcarius (n 17) Art 613.

(75) Carroll (1983) 17 Modern Asian Studies 664 .

(76) They are therefore also called ‘uterine heirs’: see ᶜAbd al ᶜAṭī (n 6) 261.


(78) Ie generally children and grandchildren (irrespective of gender) of a predeceased daughter.

(79) These are generally the so-called ‘false’ grandparents, ie a grandfather who is related to the deceased via a female relative (eg the mother’s father or the father’s mother’s father) (al-jadd al-fāsid), or a grandmother who is related to the deceased via a ‘false’ grandfather (eg the mother’s father’s mother) (al-jadda al-fāsida). See also Art 597 QPC.

(80) Eg the daughters of the siblings of the deceased.

(81) Hidayatullah and Hidayatullah (n 43) s 68.

(82) See for a detailed account of the distribution among distant kindred the tables in Hidayatullah and Hidayatullah (n 43) s 71.

(83) Hidayatullah and Hidayatullah (n 43) s 71.

(84) See III.1(a).

(85) Mahdī Shahīdī, irs [Succession] (2002) 114 ff.

(86) Coulson (n 2) 108.

(87) Al-ᶜĀmilī (n 17) 590–1.

(88) Shahīdī (n 85) 139 ff.

(89) Khan (n 9) 42.

(90) Under Sunni law, representation is not permissible, not even for the sake of the calculation of the shares. The shares of the inheriting grandchildren are allotted irrespective of the rights and entitlements of the intermediate predeceased heir. The distribution is made per capita: thus, in the aforementioned case under Sunni law, each grandson is allocated one-third.

(91) Al-Sajāwandī (n 17) 81.


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(92) For the exception to this rule, see al-Sajāwandī (n 17) 83–4.

(93) Qur’an 4:11; see Fyzee (n 28) 466.

(94) Al-ᶜĀmilī (n 17) 590; Lucy Carroll, ‘The Ithna Ashari Law of Intestate Succession: An Introduction to Shia Law Applicable in South Asia’ (1985) 19 Modern Asian Studies 85, 86 .

(95) Kimber (1998) 5 Islamic Law and Society 291.

(96) For a detailed discussion on the social, legal, and personal implications of sect conversions done for the sake of inheritance, see Lucy Carroll, ‘Application of the Islamic Law of Succession: Was the Propositus a Sunnī or a Shīᶜī?’ (1995) 2 Islamic Law and Society 24, 39–40 .

(97) Anderson (1965) 14 ICLQ 363.

(98) See, eg, Pathana v Mst Wasa [1965] All Pakistan Legal Decisions Supreme Court 134;Hussain v Mansoor Ali [1977] All Pakistan Legal Decisions Karachi 320.

(99) Qur’an 4:12: ‘In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah and Allah is All-knowing, Most Forbearing’.


(101) Qur’an 4:12.

(102) Arts 590–2 QPC.

(103) See, eg, Egypt (Art 11 Law No 77/1943); Iran (Arts 900–1, 942 CC); Morocco (Arts 342–4); Algeria (Arts 144–6 CFL).

(104) With the exception of Tunisian law, which has abolished polygyny (Arts 101–2 PSL).

(105) Art 638 QPC; al-Sajāwandī (n 17) 83.

(106) Art 638 QPC; al-Sajāwandī (n 17) 153; Carroll (1985) 19 Modern Asian Studies 100 ;Carroll (1983) 17 Modern Asian Studies 644 .

(107) Al-Sajāwandī (n 17) 69 n 1; al-ᶜĀmilī (n 17) 603.

(108) Art 949 CC.

(109) As early as in 1925 the Sudanese Circular No 28 of 1925 introduced the right of return for both spouses.


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(110) Art 143 bis PSL.

(111) Art 288 PSL.

(112) Art 167 CFL.

(113) Royal Decree No 1.62.154 on the surrender of succession rights of the state in favour of co-heirs [ẓahīr sharīf fī takhallī bayt al-māl ᶜan ḥuqūqihi al-irthiyya li-fā’idat shurakā’ihi fī al-irth] of 29 October 1962, Official Gazette No 2612 of 16 November 1962.

(114) Art 30 Law No 77/1943.

(115) Carroll (1985) 19 Modern Asian Studies 100 ; Hidayatullah and Hidayatullah (n 43) s 66;Mahomed Arshad Chowdhry v Sajida Banoo [1878] 3 Indian Law Reports Calcutta Series 702;Bafatun v Bilaiti Khanum [1903] 30 Indian Law Reports Calcutta Series 683; Mir Isub Mir Unus Maldikar v Isub [1920] Indian Law Reports Bombay High Court 69.

(116) In particular, the hadiths compiled by the Shiite scholar Sheikh al-Hurr al-ᶜĀmilī (died 1693 AD). The twenty volumes of his work entitled waṣā’il al-shīᶜa ilā taḥṣīl al-sharīᶜa contain all the hadiths and narrations pertaining to the Islamic decrees, precepts, and laws which are available in the texts of the four authentic reference books of the Shiites known as al-kutub al-arbaᶜa and other sources of Shiite jurisprudence.

(117) See, for a comprehensive overview, Nadjma Yassari, ‘Die iranische Reform des Ehegattenerbrechts – Ein Beispiel für die Wandelbarkeit des islamischen Rechts’ (2009) 73RabelsZ 985–1004 .

(118) See Afsānih Zamānī-Jibārī, ‘irs-i zan az dārāyī-i shūhar’ [The Share of the Widow from the Estate of her Husband] (1999) 11 ḥuqūq-i zanān [Women’s Rights] (Iranian monthly publication) 18.

(119) Marie-Claude Najm, ‘Note’ (2006) 4 Journal du Droit International 1366 ; Kalthoum Mezious, ‘Le régime de la communauté des biens entre époux’, in Mohamed Charfi (ed),Mélanges en l’honneur de Mohamed Charfi (2001) 439 ; G-H Bousquet, Précis de Droit Musulman principalement mâlékite et algérien (2nd edn, 1950) 123: ‘[L] a théorie des régimes matrimoniaux n’existe pas en droit musulman’ .

(120) Cf Ayatollah Morteza Motahari, Stellung der Frau im Islam (1982) 70 f ; Morteza Hosseini-Téhérani, Le statut de la femme mariée en droit shyite (1935) 152.

(121) Indonesia and Malaysia are the exceptions. Under Indonesian and Malaysian law, the statutory regime is that of community of property acquired during marriage: see Mark Cammack, ‘Marital Property in California and Indonesia: Community Property and Harta Bersama’ (2007) 64 Washington & Lee LR 1417 .

(122) Glander (n 6) 29.


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(123) On the concept of family and the respective gender roles, see Motahari (n 120).

(124) Chibli Mallat, Introduction to Middle Eastern Law (2009) 355.

(125) Norman Anderson, ‘A Law of Personal Status for Iraq’ (1960) 9 ICLQ 559 .

(126) See ch 19 below at 459.

(127) See ch 8 above at 181 ff.

(128) For a comprehensive account of Arts 1187–99 of the Iraqi Civil Code, see Anderson (1960)9 ICLQ 559 ff; see also Hans-Ulrich Wilke, ‘Neues Personenrecht im Irak’ (1961) Zeitschrift für das Gesamte Familienrecht 95, 98.

(129) Anderson (1960) 9 ICLQ 559.

(130) Anderson (1965) 14 ICLQ 362.

(131) See Ebert (n 27) 48; Anderson (1965) 14 ICLQ 363.

(132) Iraqi Prime Minister Abdel Karim Qassem, who had initiated the reform, was executed in 1963 after a coup d’état: see Chibli Mallat, ‘Shi‘ism and Sunnism in Iraq: Revisiting the Codes’ (1993) 8 Arab Law Quarterly 141, 147 f .

(133) Noga Efrati, ‘Negotiating Rights in Iraq: Women and the Personal Status Law’ (2005) 59Middle East Journal 577, 592 f .

(134) See Nadjma Yassaris, ‘Testamentary Formalities in Islamic Law and their Reception in the Modern Laws of Islamic Countries’, in Kenneth G C Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Comparative Succession Law, Volume I: Testamentary Formalities (2011) 282, 284 ff.

(135) See IV.2 above.

(136) Former Art 947 Iranian CC: ‘The wife inherits the value of the buildings and trees, and not their corpus; it shall be presumed that the buildings and trees are entitled to remain on the land free of charge.’

(137) For a discussion of these issues, see Ḥusayn Mihrpūr, barrisī-i mīrā s-i zawjih dar ḥuqūq-i islām va īrān [An Examination of the Wife’s Rights to Inheritance in Islamic and Iranian Law] (1997).

(138) Coulson (n 2) 113; Carroll (1985) 19 Modern Asian Studies 99. For a detailed discussion, see Zamānī-Jibārī (1999) 11 ḥuqūq-i zanān 18 .

(139) See the Parliamentary debates related to the promulgation of the amendments of Arts 946, 947, and 948 Iranian CC, sixtieth session of the eighth Parliament, Annex to the Official Gazette No 18623 from 2 February 2009, 3–4.


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(140) Official Gazette No 18651 from 11 March 2009.

(141) This principle is broken only in Sunni law when a daughter inherits together with the son’s son, who inherits in his capacity of closest male agnatic heir.

(142) ᶜAbd al ᶜAṭī (n 6) 258.

(143) Khan (n 9) 41; but see n 141.

(144) Al-Sajāwandī (n 17) 2 n 1; Sultanul Alam Chowdhury (1964) 3 Islamic Studies 378 .

(145) The Commission on Marriage and Family Laws was established by the Pakistani Government by resolution No F 17(24)/55-Leg of 4 August 1955. Its report was published in the Gazette of Pakistan (Extraordinary) of 20 June 1956, 1197 ff.

(146) Gazette of Pakistan (Extraordinary) of 20 June 1956, 1197, 1223.

(147) Gazette (n 146) 1197, 1223.

(148) See n 35.

(149) Representation extends to grandchildren only. The descendants of the predeceased grandchildren will not inherit under Pakistani law: see M Habibur Rahman, ‘Problems for Orphaned Grandchildren in Succession: A Study of Suggestions’ (1986) 25 Islamic Studies 211, 215 .

(150) See also Noel Coulson, ‘Representational Succession in Contemporary Islamic Law’ (1970) 32 Studia Islamica 103, who argues that in 1946 Egypt was bound by the principle of ‘imitation’ (taqlīd), inhibiting attempts to amend classical Islamic law directly.

(151) For a detailed discussion of this principle among Muslim scholars, see Sultanul Alam Chowdhury (1964) 3 Islamic Studies 385–9. For an account of the regulations in other Sunni countries, see Khan (n 9) 232.

(152) Frédéric Peltier, Le livre des testaments du ‘Çaḥîḥ’ d’El-Bokhâri (1909) 19. The Hanafi make the validity of such a bequest dependent on the consent of the (other) intestate heirs: cf Khan (n 9) 232.

(153) Coulson (n 2) 239; Ibrahim Khairallah, The Law of Inheritance in the Republics of Syria and Lebanon (1941) 235 f. The Shiite school of law, conversely, encourages bequests in favour of legal heirs: see Nāṣir Kātūziyān, vaṣiyat dar ḥuqūq-i madanī-i īrān (2nd edn, 1990) 103 ; Fyzee (n28) 366.

(154) They have based themselves in particular on alternative interpretations of the relevant Qur’anic verse 2:80: see for the details Yassari (n 134) 285–6.


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(155) Judicial Circular No 53 of 1945; see also Carolyn Fluehr-Lobban and Hatim Babiker Hillawi, ‘Circulars of the Sharī‘a Courts in the Sudan, 1902–1979’ (1983) 27 Journal of African Law 128 .

(156) Law No 71/1946 on Testamentary Dispositions [qānūn al-waṣiyya] of 24 June 1946, Official Gazette No 65 of 1 July 1946, 1–7 (Art 37).

(157) See Anderson (1965) 14 ICLQ 355 with extracts of the Explanatory Memorandum of Sudan and Egypt.

(158) See n 156 above.

(159) The Egyptian provisions (Arts 76–9 Law No 71/1946) are very detailed, as they not only contain rules regarding the relationship between voluntary and obligatory bequests, but also prescribe how to take into account gifts given to grandchildren during the lifetime of the grandparent. They furthermore perpetuate the rule that grandsons shall receive twice as much as granddaughters. For the modes of calculating the amount of the obligatory bequest, seeAnderson (1965) 14 ICLQ 360–1 .

(160) See, eg, Tunisia (Arts 191–6 PSL); Morocco (Arts 369–72 Mudawwana); Algeria (Arts 169–72 CFL, whereby the Algerian rules build on the institute of tanzīl, which is a mixed institute composed of elements of representation and obligatory bequest); Iraq (Art 74 PSL); Kuwait (Art 1 Law on Obligatory Bequests, Law No 5/1971 [qānūn fī sha’n al-waṣiyya al-wājiba] of 3 April 1971, Official Gazette No 823 of 11 April 1971); UAE (Art 272 PSL, Federal Law No 28/2005 [qānūn ittiḥādī fī sha’n al-aḥwāl al-shakhṣiyya] of 19 November 2005, Official Gazette No 439 of 30 November 2005, 9–118); Yemen (Arts 259–60 Decree No 20/1992 [qarār jumhūrī bi-l-qānūn bi-sha’n al-aḥwāl al-shakhṣiyya] of 29 March 1992, Official Gazette No 6 (Pt 3) of 31 March 1992).

(161) Art 257 PSL.

(162) Art 279 PSL.

(163) Under the Pakistani scheme, the son will receive two-thirds and the daughter’s daughter one-third. For in Pakistani law, the granddaughter’s share corresponds to the share of her mother, had she survived together with her brother. Under Egyptian law, the daughter’s daughter will receive one-third as obligatory bequest, which will first be taken from the estate and the rest (100 per cent of the remaining two-thirds) will be given to the son as the residuary male agnatic heir.

(164) Art 149 Mudawwana.

(165) Art 46 CFL.

(166) Law No 58-27 on Legal Guardianship, kafāla and adoption [qānūn yataᶜallaq bi-l-wilāya al-ᶜumūmiyya wa-l-kafāla wa-l-tabannī] of 4 March 1958, Official Gazette No 19 of 7 March 1958, 306–7.


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(167) Law on the Protection of Children without Guardians [qānūn-i ḥimāyat az kūdakān va nawjavānān bī sarparast va bad sarparast] of 2 October 2013, Official Gazette No 19997 of 28 October 2013. This Law replaces the former Law on the Protection of Children without Guardians of 2 March 1975.

(168) On adoption in Iran, see Nadjma Yassaris, ‘Länderbericht Iran’, in Dagmar Kaiser, Klaus Schnitzler, and Peter Friederici (eds), NomosKommentar BGB, vol 4: Familienrecht (2014) 2812 ff.

(169) Cf Sultanul Alam Chowdhury (1964) 3 Islamic Studies 381: ‘… by an emotional push the principle of representation will be applied in all and sundry cases, causing final subversion of the law of inheritance which has been held unalterable and sacrosanct by the Muslim jurists and divines’. In 1993, the Federal Shariat Courts held in Allah Rakha v Federation of Pakistan [2000] 1 All Pakistan Legal Decisions Federal Shariat Court 1, 48, that s 4 MFLO ‘is repugnant to the Injunctions of Islam’ and the Court asked the Pakistani President to ‘bring the said provision in conformity with the Injunctions of Islam’. The decision is pending on appeal with the Supreme Court.

(170) Eg the daughter will not exclude the son’s son, as he will inherit alongside her as male agnatic heir.

(171) Sultanul Alam Chowdhury (1964) 3 Islamic Studies 384 .

(172) See also Coulson (1970) 32 Studia Islamica 101 ; Kemal Faruki, ‘Orphaned Grandchildren in Islamic Succession Law: A Comparison of Modern Muslim Solutions’ (1965) 4 Islamic Studies253, 254 .

(173) Cf Asian Development Bank (ed), Country Briefing Paper – Women in Pakistan (2000, <http://www.adb.org/sites/default/files/pub/2000/women_pakistan.pdf>).

(174) Coulson (1970) 32 Studia Islamica 101; Faruki (1965) 4 Islamic Studies 254 f.

(175) Similarly, Carroll (1983) 17 Modern Asian Studies 668 .

(176) Coulson (1970) 32 Studia Islamica 102 .

(177) Lucy Carroll, ‘The Pakistan Federal Shariat Court, Section 4 of the Muslim Family Laws Ordinance, and the Orphaned Grandchild’ (2001) 9 Islamic Law and Society 70, 72 .

(178) Cf Faruki (1965) 4 Islamic Studies 257–62 ; Sultanul Alam Chowdhury (1964) 3 Islamic Studies 384 ; Carroll (2001) 9 Islamic Law and Society 76 f ; Achim Umstätter, Das Testament im ägyptischen Erbrecht (2000) 78–82 .

(179) The Zahiri school is a minor school of law which emerged in the ninth century in Andalusia and which is almost extinct today: see entry AL-ẒĀHIRIYYA, in Hamilton Gibb, Johannes H Kramers, and Évariste Lévi-Provençal (eds), The Encyclopaedia of Islam (2002) 11, 394.


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(180) Hans-Georg Eberts, ‘Das Pflichttestament in arabischen Rechtsordnungen’, in Holger Preißler and Heidi Stein (eds), Annäherung an das Fremde, ZDMG Supplementa 11 (1998) 347 ; Coulson (1970) 32 Studia Islamica 104 .

(181) Cf Umstätter (n 178) 77, who classifies the obligatory bequest as a legal institute at the intersection of testate and intestate succession.

(182) Shahīdī (n 85) 19; Anderson (1965) 14 ICLQ 349 ; Yasir Billoo, ‘Change and Authority in Islamic Law: The Islamic Law of Inheritance in Modern Muslim States’ (2006–07) 84 University of Detroit Mercy LR 637, 650 .

(183) Cf Tahir Mahmood, ‘Law in the Qur’ān – A Draft Code’ (1987) 7 Islamic and Comparative Law Quarterly 1–32 .

(184) For an overview of legal reforms in Islamic family law, see Mallat (n 124) 366 ff.

(185) Cf Coulson (n 2) 4: ‘But the law of succession still continues to be applied in practice throughout the world of Islam largely because it constitutes such an integral and deep-rooted part of religious ethic’.

(186) Annelies Moors, Women, Property and Islam – Palestinian Experiences, 1920–1990 (1995).

(187) These strategies include gifts, acknowledgement of debts, sale or creation of a family endowment, as well as transfer of property subject to a reserved right of usufruct: see David Powers, ‘The Art of the Judicial Opinion: On Tawlīj in Fifteenth-Century Tunis’ (1998) 5 Islamic Law and Society 359 ff ; Lucy Carroll, ‘Life Interests and Inter-Generational Transfer of Property Avoiding the Law of Succession’ (2001) 8 Islamic Law and Society 245 ff .

(188) On the concept of deathbed-sickness (maraḍ al-mawt), see Hiroyuki Yanagihashi, ‘The Doctrinal Development of “maraḍ al-mawt” in the Formative Period of Islamic Law’ (1998) 4Islamic Law and Society 326–58.

(189) Powers (1998) 5 Islamic Law and Society 359, 360 .

(190) Coulson (1970) 32 Studia Islamica 108 .


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