Channel: Hatem al-Haj
Fiqh of Inheritance – Hindrances to Inheritance and Miscellaneous Issues
A Commentary on a primary text of Hanbali Fiqh manual written by the great Hanbali jurist, Imam al-Muwaffaq ibn Qudamah, ‘Umdat al-Fiqh (The Reliable Source).
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Since the majority consider Islam to be one religion and everything else to be one religion
it is the homies who said that the Christian will not inherit from a Jew, a Jew will not inherit from a Christian, a Christian will not inherit from us rostrvm is or Austria and will not inherit from, from a pagan, a pagan will not inherit from a Jew. The family said that because the harm buddy said that they are the each one of them has a distinct religion.
The more they said that when it when it applies to this particular issue, it's not like their religion blind, but when it applies to this particular issue of tomatoes, all the religions are one and Islam is one. So there are two religions, Islam and everything else. Anyway, he you know, he will particularly not be judges and you will not particularly the
arbitrator adjudicate any of these cases.
But what matters what is relevant in our times particularly is this idea of transfer of ownership and as we said transfer of ownership is not all court enforced transfer of ownership, which is the definitive definition of miraz It is usually bequeathing, which is fine between Muslims and non Muslims. Both ways, both ways.
Then the sheikh said what mortalidad is in matter for matter who say
okay, as for the pastor, he does not inherit from anyone and if he dies, his estate becomes a fight spoils go would go to the Treasury
to the position of the majority as well. And the American Tamia FFA, Dean said that the mortality has money will go to his children will go to his heirs, because they are more deserving because then the rest of the Muslims he has he is martyred. And we don't acknowledge this and we don't approve of it. So we will not ascribe him to any religion. You know, we will not ascribe him to any religion because not acknowledged in Islam.
But, but he said instead of taking the money and giving it to beta mad, which is for all the Muslims, his own family are more deserving, even if we treat the money like spoils, but he was just give it to his kids, because they're
at the end of the day, they are more deserving than
the rest of the Muslims.
Yeah, yes. So you have to give it to them or his Muslim kids. The pastor says This money will be passed on to his Muslim family after his death, according to the paid Dean, which is another name for the mayor. But that is not according to the official position of the former.
Which you have to keep that distinction. And we said that positions outside of the official of the forum as I have been need to be mainstreamed by widespread acceptance by sort of court enforcement by legislative legislatures in the Muslim countries adopting those positions or widespread acceptance among the larger Muslim community. And even that applies to everybody, you know, that despite my my, sort of
my partiality, I can't claim to be impartial to me as positions I am, to a great extent me and inclination, but, but that also applies to him, it applies to everyone, you know, positions outside of the official
sort of authorize the views and the form of have, there has to be a mechanism by which they can be they should be made and they can be mainstreamed. It's not like you're just gonna go into accept, sort of, it's not good, you're not going to do you're not going to have the liberty of basically selecting any position from anyone outside of the authorized positions of the former that there has to be a mechanism by which we recognize that the truth is not confined to the forum as I have. But we also recognize at the same time, the weight of the agreement of the forum as I have and the weight of the authorized positions in the forum as I have and the need for us to recognize that wait
for consistency and perpetuity perpetuity of
the legal sort of the framework
Then but she said a stanny Eric la sala have to do haha Then why
don't you Coronavirus aman Kinabalu Harun Marisa will work Risa
Remote female slavery. A slave may not inherit and has no estate to be inherited. One who is partially free will inherit his or her money may be inherited, and he or she may block others in proportion to the portion of himself or herself that is free. So why does the slave not inherit because he's owned that if you pass on property to him, it will be owned by the master. And so it's counterproductive. So if you want to be kind to a slave, what do you do? You emancipate them. That's the first step. emancipate them and then give them whatever it is that that you want to give them. But the first step is emancipation. That's the first act of kindness.
And then we have to be here. So if someone wanted to
emancipate the slaves upon his death, that's called the beer which is a promise of emancipation upon this
he says a year
for one cannibal to heroin what is our od sir?
hotter Bobby patrick murphy manohara which means one who is partially free will inherit
his or her money may be inherited, and he or she may block others in proportion to the portion of himself or herself that is free. So, like you have someone who had who is half emancipated, he will act like a half, he will take half of everything, because he will be acting in the capacity in which capacity
the half half half of the capacity of the free until the B becomes completely free, then he will act in the complete capacity of the free person, but he will act and half the capacity of the free and then he blocks also by his half
he blocks by this is half so everything is acting with the capacity of half. Keep in mind when we talk about blockage when we talk about millennia, there's no no there's there are marijuana.
There is some relationship between man on hats bright man is the hinder from inheritance and how to best of luck. The person who is my job, my job.
Basically, he's blocked not for for that his person or her person.
But they are blocked because of their position, their, their their position in the family tree makes them blocked, but they are not inherently blocked. The hindrances talks about the people who are inherently block, no matter which position they are in the family tree, they are blocked, they're out of this. They're out of the whole scenario. So the three which is you know, traffic D and the difference in religion, religious affiliation, or slavery, handled the murder, the murderer will not inherit, like cotton, no pattern or murder will inherit. These three do not exist. In the in the scenario. They just don't exist. They don't block they don't it. They don't exist. You just remove
them. But people who are blocked can they themselves block? Or can they be?
Yeah. Can they themselves block? You know, like the children of the material and siblings, maternal siblings, they exist.
Do they inherit with their mother? Yes, they do. Do they inherit with
No, they don't.
Certainly they don't inherit with a father or grandfather they inherit only when the deceased is kilala who does not have a male ancestor? So those are the maternal siblings. There is a grandfather, you will block them. Well, they still affect the mother and the black hair partially from one third to one sixth. Yes, they will.
So it means what they did not vanish. They are here there instead with us. They are sort of not
they're still active there, you know, but the three hindrances which is slavery, murder and
difference in religion. So the three hindrances
Make you non existent in this scenario
you are non existent. You don't
do anything to the salad mirrors.
Okay, but if a person is a slave and one quarter of him or her, was emancipated then they that he would act in the capacity of that one quarter
for the areas of cartilage to be paid to happen in Petra will be happy to happen concurrently we had done our piece awesome how cut Lila did it bury them yumna me Rasul Allah mem na merasa Okay, the third hindrances killing the killers are not inherit from one whom he or she can unjustifiably
be hired. And justifiably because this is important. However, if he or she came to the deceased, justifiably, such as for capital crime, or retribution, or when the legitimate authorities killed the rebels, then that will not be a hindrance against inheritance, that will not be a hindrance against inheritance.
Okay, so what does that mean? Killing? Certainly, if you allow the character to inherit the victim, that doesn't make any sense, right?
Because people will be sort of.
the prophet SAW Selim said that a killer a murderer will not inherit, they are so caught in layers. So which cartoon here but that's what the prophet SAW, Selim said, the killer will not inherit. But then the scholars tried to figure out which one of them because what if, what if I gave my son medicine that kills them?
Do I inherit?
It's not intentional. So you're saying that it has to be intentional, to be consequential? Okay, but what if people then
try to do things like under the table? Should we not deter them from hurting their family members?
Because how do you determine what's intention and what's not? Is it hard to determine what's essential, what's not, it is hard to determine what's essential, what's not. So, okay.
So we have two things here, two, we have two principles here that are to some extent, conflicting.
One principle is to implement the justice and did not deprive any inheritor from their fair share of inheritance, if they didn't do something wrong.
The other principle here is to deter people from murder from like, you know, bloodshed. deter people from bloodshed. So some of the scholars have looked at this, the Sherpa is looked at this and said, layout is powerful, no good are what inherit, it applies to any and every and each killer. whether this was intentional, or non intentional, direct, and indirect, justifiable and justifiable.
So, if you are the executioner of punishment, if you are the person who works for the courts to execute the death penalty, and you happen to execute it on some one of your family members, you will not inherit.
you can excuse yourself. Yeah.
but but So Amanda xfa Rahim Allah, he sort of tried to say I would err on the side of deterrence to deter people from bloodshed. Not nobody would inherit from someone they killed. Even it was by mistake, whoever told me it was a mistake. I mean, you're claiming it was a mistake, whoever can prove there was a mistake. You know, I would consider a mistake in court because I don't have proves that it was not or, but whoever told. So that's what you know. So at one end, he managed at one end, it is all killers.
At the mount Malik on the other end, sad. It is only intention of killing
So no kidding.
Okay, intentional killing that is unjustifiable
Keep in mind when it comes to justifiable and unjustifiable a hero when it comes to, you know, authorities getting the rebels authorities getting the rebels that is called the highly activated belly that is called the legitimate authorities getting the rebels that is called justifiable here or it is it is someone who has executed and get capital crime the retribution or punishment for a capital crime whether it has had the Orca sauce you know had the officers to execute or have the punishment for a capital crime is called justifiable. The amount of shefa he said even that no killer would inherit everybody justify the three other imams if it is justifiable, justifiable they
will inherit if it is justifiable they're here that's the medic is Hannah Hannah fees and honeyberries but medic Rahim Allah on one side, crema medically on one side and he you know, he took the other end of the extreme corn spectrum I should say. Family members felt he limited limited the killing and it will be hundreds hindrance to unjustifiable intentional killing. And Mr. Mr. Fairey said all killers Eman hanifa said certainly he excluded justifiable all of them except to serve a law excluded justifiable killing but that amendment behind he for also excluded in direct killing with a tool that would not usually result in direct caring was a tool that will they will not
usually result in death in direct caring with a tool that will not pray usually result in death. Remember honey for also excluded the killing by anon mukalla. The Killing by nanocatalyst such as the insane and the child of the if a child or an insane person killed their family member they'll still inherit according to the amount of money for the killing by the non macula the child and the insane
macula these are the exceptions that you know hanifa gave when it comes to the general and certainly justifiable all of them without justifiable will not. So those will be executed those are excluded from
the killing that will be a hindrance at the moment. There are two reports from an EMA
two reports from a runoff not one he only excludes the justifiable one, he only excludes justifiable killing. That's it.
So if you give your child medicine and it kills him, you don't inherit
big because we're he's only x including just the fiable. So in this sense, he's like a chef le with one exception that the chef does not execute justifiable.
So remember, Matt in this sense is very close to emulsify with this exception.
And the other report from Mr. Ahmed, which is almost equally strong, he is very close to the Imam Malik, but not all the way there. He said, if there is if there is retribution
indemnity which is their
reputation attributions, what causes indemnity is what their or expiation, which is what confirm
he will not inherit.
He will not inherit. If there is no retribution indemnity or expiation, he will inherit
expiation, Guevara is what
is particle copper, copper copper which has unintended killing, mistaken killing mistaken killer Yeah, I guess I translated in the book has mistaken Katalin hotter.
in there, indemnity will apply to both Scotland cover and armed retribution applies to intentional killing of the land. Okay. So he says
If someone comes and we will not apply to him, retribution indemnity and expiation, he will not he will inherit Can you give me an example someone who killed somebody, but that no retribution knowing them at no expiation
both are right. So that I saw, you know, if you can, if it is proven that the person was saw and there were where they will not be, but But the idea here is
we're not talking about justifiable because we agreed on justifiable before. All of that is justifiable killing, but he means to add
any permissible act that will result in someone's death will not become a hindrance of inheritance. So, if I give my child medicine and it kills them, hi, we'll still inherit because it was a permissible act.
It did result in killing but none of these will be applicable to me.
It was a permissible act there was no negligence on my part to call this Cutler hotter or mistaken getting
there was no negligence No, like, you know, so if I if I if I'm driving, you know, the speed limit and someone just jumped in front of my car.
It's not Cutler, haha.
I'm driving in my lane. And I'm going business. If I am driving beyond the the speed limit, then it says Cutler
there has to be some degree of fear Oh,
yeah, some some degree of error on my part.
Or if I if I'm holding if I'm holding a spear or something and someone ran into it, you know it that is not my mistake.
is not clear. Now that I think we have covered this part.
If there is no error on my part, I will not be responsible for retribution underneath your expiation.
There is no error on my part, I will not be responsible for retribution indemnity and expiation. It is not a hindrance. I want you to remember this because it's actually like a good position and it's easy to remember.
If I am not going to be responsible for retribution indemnity or expiation for pizzazz there are afara
Once I'll be responsible for Casa de ARCA fara, I should not be able to inherit does not include mistaken Kevin. It's not only intentional, like Mr. Malik said it includes mistaken caring because in mistaken caring I am not responsible for retribution or indemnity or I could be responsible for them. But I'm responsible for the expiation I'm not responsible for retribution for sure and I'm responsible for indemnity and expiation
not retribution. But so that is the difference between this and Mr. Malik mistaken killin
will not get me basically,
sort of, does not make me clear.
You don't inherit according to the only you will only inherit according to the mimetic
I guess that's it for hindrances. Let's just start to the next chapter, because the next chapter will may bleed into the next session, which is bad masane chapter chapter on miscellaneous issues, but I want you to remember when it comes to hindrances, that person who is hindered from inheritance does not exist vanishes. Does not you know
that myself chapter chapter on miscellaneous issues that she accept Rahim Allah is a matter on Hamelin URIs who work after whom Eros is the Quran in Ghana, mira Suma AXA, what a la mirada owns a fatality Coronavirus in India. We're talking about the hotbed of a an inheritance of fetuses. If one
dies. While there is a fetus, or fetuses that would inherit from him or her, he reserved for them the greater of the inheritance of two males or two females, then you give all other heirs what is certainly theirs, and you keep the rest until the outcome of the pregnancy is clear, you keep the rest until the outcome of the pregnancy is clear. And that is really because we take those things for granted. We don't appreciate the beauty of the dean and the beauty of the tertiary of the dean, because we just we take it for granted and we're just like, but
give the fetus all of those rights the fetus has so many rights in Islam
that's it's amazing how many rights are due to the fetus in Islam, but to give the fetus even the right inherit from their family members, not only their parents, but family members could be the fetus of
not my own servi my wife or you know, it could be any fetus that may inherit if he was existence, if he was outside feels like outside is called halaya.
You know what it means?
so we have two different types of layer, we have layer two juvenilia
layer two and a yet
what is unlimited and
how are you authorized to perform certain acts or not authorized limited? Will do are you entitled to certain rights are not entitled. So that is why we call this sometimes liability.
It's a it's a capacity halaya means capacity, capacity, capacity, legal capacity, you know, so Alinea through beleaguer capacity has an entitlement you know, so, sometimes they call this eligibility eligibility Are you eligible or not and the Japan Li t Okay. Are you eligible or not?
Are you liable or not unethical Do you know certain things become whadjuk for you, because you become entitled to certain things become due to you due to you allotted other you know certain things because you become liable for certain things eligibility and liability, you could come up with any kind of translation for this you could call this passive and active also sometimes they call this
passive capacity because you are receiving here the capacity to receive and they call this active capacity, which is the capacity to perform
the exercise sometimes they say this the coldest the capacity to capacity exercise capacity to receive I guess yeah capacity received capacity to exercise or passive and active or eligibility or liability, but you get what that means. Now, the fetus, the fetus, the fetus have delayed
Okay, fetus has a layer would you add layer to a job this is the fetus half complete, Elliot would you know it is called the Marcus and layer two job nakiska It is called incomplete
eligibility or incomplete passive capacity. And when the fetus comes out, it is the Helen modasa sorry, Hanwha is the handle modal worries.
Sorry, what is the meaning of that? So, when that when the child comes out crying, the Prophet sallallahu Sallam says when the fetus comes out crying or the newborn, do this the newborn when the newborn comes out crying, he or she inherits comes out crying is the heart of the comes out cry, but crying is a sign of life. If the medical team determined that the kid the baby came out here alive through other signs of life is then it also applies because the scholars that not limited to crying they also talked about, you know, Hurricane hurricane was born, which is movements that are voluntary movements that are not just like
voluntary movements they consider this to be an indication of life anyway. Just remember that when the newborn comes out alive they inherit even if they died a second after they came out, they inherit and then their inheritance becomes distributed to their own inheritors.
So, the fetus has layer to tube Nafisa. So, we have now a fee like you know, someone died and their wife is pregnant, or someone died and their mother has this pregnant their mother is pregnant. That brother or sister may inherit Well, what do we do? He mama Ahmed says we would recommend for the rest of the heirs to wait until we figure out what's happening here until childbirth and we figured out what is happening
and then we will you know the longest duration of pregnancy This is like a whole different discussion but the you know, the wait could sometimes be longer
because the coordinating mothers could last up to four years pregnancy which we have Yeah.
We didn't talk about this before we talked about Yeah.
And then there and family law we were coming back to family law because you guys are forgetting some parts of it. So but but anyway, no one ever said two years. I said four years the nomadic set five to seven. You know, Chef I said for as well you know nominal chef value set for our honey for say two and the Imam Malik there is, you know, five to seven to unlimited In summary, but finally, that laws use the position of an Imam Muhammad Abdullah Abdullah hakam, who was
medic, he shot for a medic in Maliki's in Japanese and medically scholar
who said one year, American Houseman said nine months
it hasn't been said he said something that pretty much alludes to 10 months.
And if he did actually say that he was actually you know, the sort of the most accurate
but at any rate, that laws go by one year for sort of
precaution, margin of safety
laws in Egypt and Syria and other parts of the Muslim world. Consider one year the position of Mohammed Ahmed Hakan, which is one lunar comedy year.
Let's go back to where we are. So we're in our mindset we will recommend that the wait but we will not force them to wait the mathematics said no, they have to wait they ought to wait until childbirth and then we divide
but the majority said no, we will not keep them because like I said the pregnancy is them could last for a long time they said that we can't hold them up all the all the time to wait for the division of the inheritance What are we going to do a mama sad we will have we will sort of
suppose that there are two males
or two females
whichever will have a greater inheritance
whichever will have greater inheritance we will keep enough reserve enough for two males or two females can two males have greater inheritance inheritance than two females
here Yeah, but we can right yeah. So
let me give you a like a very sort of easy example here.
the two males will have more than the two females to females will have more than two males when they will have the same thing. You know the easiest example is say, hey man was survived by his wife
and two parents.
his wife was pregnant.
Two females will have more or two males
to females. We'll have more two males.
Guys, come no you have to come through for me here because we've been doing this for
Okay, think about it.
Two parents will get what?
Each one will get one six, both will get one third. What is the wife getting here?
one eighth? If If, if the if these come out alive, right? Okay.
So two females will get what?
Two thirds? Regardless? I don't have two thirds for them, they'll still compete, we will do our proportional reduction.
What will the two males again, they will get the leftover the rest? So what they get less than the two females? Yes. Because they are getting their share. After that what is this? When you see eight and another number that is not a factor of eight?
You multiply so 24. So 23 over 24 and eight over 24. Right? What is eight and three is 11? over 24? What do we have left? 13 over 24 is what we have left? The two man's will get 13 over 24. Certainly you will have to multiply that by two to get you know, so it will be 48 and then this would be 26. And then each one of them would get 13 out of 48 of the mains. Now if you have two females, what do you get? You will they will compete with they'll they'll be two thirds. So what is two thirds? Two thirds is what 16 over 24? Because we will go to 24. Right? We said when you see eight another number that's not a factor of 18 to 2416 over 28. The wife will get what three over 24. The parents
will get what?
Three out of 24 what the parents are getting one third one third
888. So eight and three is 1111 and 16 is what 27. So what do you do in this case?
The numerator becomes the denominator that 27 goes down here on the on the bottom, that 27 goes down on the bottom. What do the two girls get? 16 out of 27? What does each girl get it out of 27?
Well, obviously eight out of 27 is more than 13 out of 48
was just math but it's it's quite obvious because the girls were not when not get the leftovers which are less than two thirds they would go in with the two thirds and then there'll be proportionate reductions. So, when you find if you find something interesting then when it comes to immediate family the girls have like security that they must inherit they must be get under the they have like fixated designated shares to secure them
Okay, so that is when do they when when the two when or when do the two males inherit just like the two females?
This who you want to remove somebody here
Okay, can you remove the wife? No.
no but she will die after the guy died anyway. Because if she if He is survived she is carrying the fetuses she can be the
okay, but anyway
if he divorced his wife a third divorce during the pregnancy does she become Batman and he is not interested in this.
She did demand that the chibi divorce you know so there is you cannot suspect to him at all of any foul play. She demanded it he gave her the third divorce she becomes a bad finalized divorce that she inherited. No finalized divorce does not inherit she's not gonna die. You know, so she does not inherit and then after he gave her that bet and divorce, she is still pregnant. He died and then she gave birth. And this particular scenario, if you remove to the wife here
to a man's will be just like two females because the parents got to one third. What is left is two thirds. The two man's will get what is left two thirds, the two females will get not what is left two thirds, okay? They because they have this designation
if the parents are not there and the wife is divorced, yeah, the fetus is working everything. So I am reserving this for them. I'm reserving this for them. Sometimes only males will inherit the fetus. If he's male, he would inherit, sometimes it's only a female that would inherit, right?
If the fetus is a female, will inherit, but if the fetus was made, will not inherit, like, we'll give you an example.
a woman was survived by
a woman was survived by his out husband.
And you survived by a full sister.
what does the husband get?
What is the full sister get?
Her father, who is married, is married to some woman, the father of the deceased, who is married to some woman, the father died.
The father her father, but the woman is her stepmother is pregnant. her stepmother is pregnant. Now, what are we expecting out of this pregnancy? We are expecting a paternal sibling. That paternal sibling could be paternal brother or paternal sister.
Who would inherit
only the sister?
Why is it the paternal brother is not inheriting? No leftovers.
No leftovers. The full sister. We said took the half. The husband took the half. Do we have anything for asaba? This will be awesome. Do we have anything for residuary? Err, no. pre-tournament sister? What does she get?
She does she get?
we will treat her like a granddaughter with a daughter. A granddaughter gets the one sixth, the remainder of the two thirds, the daughters should get locked up but the paternal sister will get the one sixth, the remainder of the two thirds that sisters the genre of sisters
is entitled to so since we have only one full sister and and sisters as a genre are entitled to two thirds, we are given her one sixth,
you will say there is no room for her
proportional reduction how
she has a designated chair. It's not like she's the resident where he or she will take the leftovers. He has this he or she will compete and get her. So you will find that close female relatives are always sort of having some security to get their thing.
And unfortunately, I was, you know too optimistic to think that we will finish
the best chapter on miscellaneous issues which we were only able to add even there is like one point that I need to mention at the end. Because sometimes only I made what I heard, but but these are examples just to sort of broaden your horizons. But the one thing that I should mention is what if we have more than two fetuses?
Ah, one, if we have more than two fetuses,
they will still claim their money after its distribution, they'll still claim their money there. They are protected.
After it's the resolution, we spent it. The IRS will say we spent it
you have to give it back to me. Because you should have been a little bit more careful because this is an unsettled matter. So you you will have to give it back to us. If you spent it if we have more than two fetuses, they will still claim their money. What if we have less than two fetuses? Are we the you know that they did not live or something redistribute
They're among the inheritors as if they did not exist. redistribute. It's not like you're going to give their inheritance to their own inheritors. No, they did not come up with a life. They did not exist in the end. That is why it's called La da casa, because it is an incomplete capacity because it only they they are only entitled and then they can pass it on if they came out alive, if they are alive inside but they don't come out alive. Then in that period, we're just reserving it for them but they are not completely new transfer of ownership according to the stronger position. There was no transfer of ownership. You know, when they are fetuses the transfer of ownership happened after
they came out but according to their agreement, they will not be entitled to inheritance unless they come out alive.
So that is the that's the discussion on the inheritance of the fetuses. Next time inshallah we will go over the inheritance of the missing divorce in terminal illness or the diversity in terminal illness and dispute Lin lineage the intersects they remind you of it, and dying all at once it got cold hot, cold, hot man drowning fire and under the rubble. calcarea does. Chronicle Birmingham dik[???]ar la land as the vehicle to wake