THE RIGHTS OF WOMEN TO INHERITANCE UNDER ISLAMIC

LAW: A DETAILED ANALYSIS

ABSTRACT
The idea of succession is as old as the history of mankind as this paved the way for the
continuity of property and civilization. Noteworthy is the fact that most societies have been
essentially patriarchal; but in no area of political, social and religious life has the despicable
plight of women been more conspicuously noticeable than in the aspect of inheritance. This
work is therefore an analysis of the inheritance rights of women in the Islamic legal system
which have evolved from a system whose primary purpose was the support and liberation of
women to one in which women enjoy the same rights to inherit and own property as their
male counterparts. This work gives an overview of the system of Islamic law and of course
the place of women. It then provides a detailed description of the ways in which the law
govern the rights of wives, mothers, daughters, and other female relatives to inherit property
without living behind the examination of the historical, legal and philosophical foundations
of the practices of women’s rights to property in this jurisdiction.
Keywords: Islamic law of inheritance, women’s rights, property.

1.0.0: INTRODUCTION
The idea of succession is as old as the history of mankind. This is because from time

immemorial people inherited certain things from their predecessors and this paved the way

for the continuity of property and civilization.1One of the important branches of the Islamic

family law is that relating to inheritance.2 It is a significant part of the Shari’ah which

prescribes the mode in which the estate of a deceased Muslim, whether male or female, shall

be distributed among his heirs after certain legal requirements in that respect have been

complied with.3

1
Pindiga, U.E.H. Practical Guide to the Law of Succession (Mirath) in the Shari’ah , Tamaza Pub. Co.
Ltd., Kongo-Zaria, (2001), p. 4.
2
Abdul Salam H. A., “Achieving Equitable Wealth Distribution: Exposing The Rule Of Mirath As A
Redistributive Agent”, Al-Maslahah (Journal of law and Religion ), Vol. 6, 2014-2016, p 56
3
Dalhatu Idris Esq., “The Means of Acquiring Private Ownership of property in Islamic Law: An Appraisal”,
Nigeria Islamic Law Journal NIJL (CIVIL) volume 1, 2013, p 229.
Islamic law has two terminologies for succession `ilmul Mirath and `ilmul faraid, i.e. the

knowledge of succession and that of the ordinances of the distribution of estate respectively.

Both refer to the Islamic law knowledge of who is, and who is not entitled to inheritance.4

Metaphorically Al-Mirath means the transfer of ownership or possession of the deceased’s

belongings to the surviving heir. It is all the same whether the deceased’s belonging is

money, immovable property or right possession among the legal claims allowed by Shari’ah.5

The science of estate distribution takes prominent position in the two highest sources of

Islamic law viz: Quran and Sunnah. The Quran contains about 35 verses referring to

succession and these are known as Ayatu-Al-Mawaariith.6 The Quranic bases of the

distribution of estate are in Suratun Nisai, (Chapter 4) verses 7-10 and 176-177 respectively. 7

Allah apportioned the inheritance with His wisdom and His knowledge. He distributed

among the relatives in a better and more honest way, in conformity with His extensive

comprehensive mercy and knowledge. The verses of inheritance and Ahadith (prophetic

traditions) have brought forth comprehensively all possible incidences of inheritance. Some

of these incidences are plainly clear that everyone can understand while others need to be

considered and treated with care.8

Stephen Sapp9opines that the essence of these verses are to moderate the economic

differences between the haves and have–nots, i.e. to keep wealth in circulation and to

encourage its distribution among many people.10

4
M. A. Ambali, The Practice of Muslim Family Law in Nigeria, (Princeton & Associates publishing Co. Ltd.
Lagos, 3rd Edition, 2014) p 340
5
Ishak Aliyu, Inheritance in Islamic Law, Zazzau Ventures, 2005, p 10
6
Hussain A, The Islamic Law of Succession, (Darussalam Riyadh. 2005) at, p 26
7
M. A. Ambali, The Practice of Muslim Family Law in Nigeria, Ibid
8
See Dr. Ishak Aliyu, Inheritance in Islamic Law, p. v
9
S. Sapp, “Religious Views on Legacy and Intergenerational Transfers, Generations”, (San Francisco, Calif.
1996) v20 p31-6 fall ’96. (Aiu library)
10
Ibid
In the present clime, when a man dies, the devolution of his self acquired property depends

upon whether or not he has made a will. If he has made a will, the property will devolve

according to the directions contained in the will. Where a will is made in accordance with the

law, the contents of the will, will apply absolutely as nobody can change the wish of the

maker of the will11. This type of succession is described as ‘testate succession’. Though under

Islamic law it is only limited to one-third of the estate of the deceased and it may be subjected

to some particular amendments when it goes against the basic rulings of Islamic law of

inheritance. If he has made no will, or has made one which at his death has become totally

inoperative, he is said to die intestate, and the devolution of his property will be governed

entirely by the rules of law prescribing the order of succession upon intestacy 12. The ilmul

faraid applies totally to the estate after the deductions of some dues out of the property like

funeral expenses and debts.

In effect, the Islamic law of succession is hinged upon two pillars- the Mirath and the

Wasiyyah. The Mirath covers the entire aspects of intestate succession under the Islamic law

and gravitates to lay a firm foundation for the procedure of Wasiyyah- the testate succession

which allows the Muslims to devise of not more than one-third of their estate as testamentary

gifts – as well as partial testacy under Islamic law.13

It must be noted that the idea of inheritance has featured well in the history of the Jews,

Romans, Israelite, Egyptians, Caledonians, Pre-Islamic Arabians as well as most African

customs long before the Advent of Islam. So it is not only obtainable or innovated by the

coming of Islam.

11
As held in the case of Igboidu v Igboidu [1999] 1 NWLR pt 585 pg 27
12
Nwabueze B. O, Nigerian Land Law. Nwanife Publishers Ltd. (1972). Pgs 380-403.
13
Yusuf Abdulrashid & Sheriff E.E Okoh, Succession under Islamic Law, (Malthouse Press Limited, first edition
2011) p. 3
Women have had their shares whether adequate, little or nothing in all those laws. So an

examination of such proportions would not be a mirage. According to Prof. Sani Idris he

posited that:

In all the schemes/systems of inheritance that existed in the history of

mankind prior to the advent of Islam and to some extent even thereafter up

to today, women have been placed in a very disadvantaged position. In some

systems they are not only deprived from inheriting any portion but they

themselves are considered chattels capable of being inherited.14

Consequently from the above, there is the need to examine the development of the Islamic

law of inheritance in relation to the rights given to the women and the applicable rules of

testacy or intestacy and without much ado, the legal justifications for the unequal fractions of

property specified to the male compared to that of the females. This is what this chapter

discusses.

1.1.0: THE PRE-ISLAMIC LAW INHERITANCE AND THE PLACE OF WOMEN

The pre-Islamic period is known in Arabic and Islamic Literature as “Jahiliyyah” period,

literally meaning the “era of ignorance”.15

The law of inheritance in Islam developed as a result of the inadequacies and inequalities in

the distribution of the deceased’s estate amongst the heirs prior to Islam in different

communities of the world. For instance, the rules and customs of Arabia on inheritance

before the advent of Islam, the pagan African customs, as well as, the Hebrews are to the

effect that only the senior male child of the deceased person can inherit him to the exclusion

of all other heirs.16

14
Ibid
15
Ibid
16
Qadri A.A; Islamic Jurisprudence In The Modern World, Taj Company, Delhi, (1986); p.424
During the pre-Islamic period, women and young males do not inherit, for the Arab used to

say: “Only those who could fight (in wars) and collect the booty are to be given

inheritance.”17 Succession among the Arabs before Islam was confined only to able male

relations. Daughters, widows, mothers, minors and incapable persons had no share in the

inheritance. Women were regarded as among the chattels that came down for inheritance.

The basic principle of inheritance was that one must be capable of defending the honour, of

the family and tribe.18

The Islamic law of succession prohibits all barbaric and inhuman practices that were in vogue

prior to its serial revelations and established new categories of heirs outside the common

heirs. It is worthy of note that prior to this divine law, women were highly abused as they

occupied a position far below those of slaves and at best were considered to be chattels.19

According to Dr. Hussain20, the exact details of the rules of inheritance before the advent of

Islam are not known. What is known is that the rule of inheritance was confined to the male

agnate’s relatives of the deceased.

In Roman, as well as, in the ancient Greek law, where the daughter was considered incapable

of participating in or continuing the domestic religion, she would be deprived of the right of

inheritance or she will not even inherit at all, neither before nor after marriage. 21 Under the

African custom, particularly the old Yoruba system of inheritance, the eldest son inherited the

property of the deceased father to the exclusion of all heirs, including the co-wives of his

mother.22

17
See Dr Ishak Aliyu, Inheritance in Islamic Law, p. v
18
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), Jodda Press Ltd. Zaria,
Nigeria 1998, pp 9-10
19
Yusuf Abdulrashid & Sheriff E.E Okoh, Succession under Islamic Law, (Malthouse Press Limited, first
edition 2011) p. 18
20
Hussain A, The Islamic Law of Succession, (Darussalam Riyadh. 2005) at page 24
21
Ibid
The object and purpose of the old customary system of inheritance of inheritance amongst the

Arabs was the maintenance of the goods within the family. Heir-ship among the early Arabs

was determined by consanguinity, adoption or contract. Like other ancient societies, the old

Arab society enjoyed the complete freedom of testamentary disposition.23That is: A person is

free to make personal arrangement to confer right of inheritance on some other persons

outside the family cycle.24Uterine relations such as uterine siblings were also completely

excluded. It is likely that the rules of priority that operates amongst the ‘Asabah in Shari’ah

law are a carryover of the old customary agnatic system. 25 Because: The Sunni jurists take the

view that the intention of the Quranic injunctions was not to replace the old customary

agnatic system entirely but merely to modify it with the objective of improving the position

of female relatives.26 Their rights have been recognized and guaranteed by fixing specific

shares for them.27

In the words of Abdul Hamid Siddiqui 28 expressing his view on the status quo ante before the

legal revolution the Islamic inheritance brought he said:

In pre-Islamic Arabia, and other countries where there had been tribal

societies, not only were women deprived of the right to inheritance but even

weak and sick persons and minors (children) were given no share in the

inheritance. The common practice was that “he alone is entitled to inherit

who wields the sword.

22
Ati, H.A., Family Structure In Islam, Academy Press Ltd, Lagos, (1982); P. 250; case of Dawodu Vs.
Danmole (1962) I ALL NLR, 702
23
A. Hussain, The Islamic Law of Succession, pp 24-25
24
Muhammad A. S., Mawaariith Fish Sharee’atil Islamiyyati ala Dhau’il Kitāb was Sunnah, Mecca, (1979) PP.
17-1
25
Ibid
26
Ibid
27
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), p 9
28
Abdul Hamid Siddiqui, ‘Inheritance in Islam’, available at (www.IslamOnline.net - Shari’ah and Humanity
2007, p 2) accessed 15/06/2016
Allah abolished the above rule which was based on ignorance and injustice and made women

to become partners of men in inheritance according to the amount that can fulfil their

demand.29

Accordingly and summarily, the grounds of inheritance known among the pre-Islamic Arabs

range as follows:-

a. Blood relationship–Nasab: -This is a form of inheritance on account of blood

relationship. It was only confined to the paternal male relations and even among them,

only those who had the ability to hold arms and had actually fought along with the

deceased were competent to inherit out of the estate left behind by the deceased.

Hence, female and those male descendants that lack the ability to hold arms, such as

minors, incapable and old people were impeded from sharing in the estate on account

of their inability to wage war and bear arms in defence of the family or tribe.30

Under this ground of inheritance it is clear that there is no share for wife(s), mothers,

daughters, sisters etc and beside the female category even among the male, the weaker

ones such as the aged and minors are also deprived of a share. It is worthy to note that

it was against the background of this injustice that the verses relating to inheritance

were revealed directing clearly how the estate of a deceased is to be shared among his

relations.31

b. Adoption-Al-tabanni:- Another ground of inheritance known to pre–Islamic Arabian

custom was by way of adoption. This is a method by which a person adopts another as

his biological descendant and by so doing the paternity of the adopted son would be

linked to the person that adopted him rather than his real biological parents. This

29
Dr Ishak Aliyu, Inheritance in Islamic Law, p v-vi
30
Idris, S.,” An Appraisal of Women’s Right of Inheritance under Islamic Law”; in Ahmadu Bello University
Journal of Islamic Law (ABUJIL), vol. iv-v, Faith Printers International, R/Tsiwa Estate, Kongo, Zaria, (2007);
p. 114
31
Ibid
 adopted son will inherit the whole property of the person that adopted him

should such a person die without a son and if such a person is survived with a son

then the adopted son as a matter of right was allowed to claim his share from the

estate of the deceased like any of his biological sons.32

Here again the right of women to inherit has been neglected since the concept of

adoption is that of a male child not female. In fact during the period under

consideration the birth of a baby girl was seen as a disgrace and a lot prefer to bury

their female babies alive than to leave with the disgrace of keeping them. In such

circumstances the issue of adopting a baby girl does not arise.33

c. Military Compact-Al-halaf: -Another important ground of inheritance during this

period was the military compact between members of different families. It is a

defence pact by which parties, strange to each other by blood relationship, enter into

an agreement that they should in return for a consideration of defending each other in

cases of war be entitled to a share in each other’s estate. By this agreement whoever

among them pre-deceases the other is entitled to inherit 1/6 of the estate of the other.

The pact is made in the following terms: “My blood is your blood and my avenge

murder is your avenging murder. You will have the right to inherit me and I shall

have the right to inherit you. You shall owe for my blood”. If this was accepted by the

other party the pact was deemed completed.34

It is observed here again that the women are also excluded since the issue of defence

pact simply has to do with war for which women are not engaged hence they cannot

inherit under this ground too.35

32
Keffi, S. U. D., Some aspects of Islamic Law of Succession, Rukhsa Publications, Kano, Nigeria, (1989), P. ix
33
Idris S.,” An Appraisal of Women’s Right of Inheritance under Islamic Law”p.15
34
Ibid
35
Idris S., ” An Appraisal of Women’s Right of Inheritance under Islamic Law”, p.16
 d. Marriage –Nikah: – Another important means and ground of inheritance that clearly

portrays injustice and discrimination against women is inheritance on the basis of

marital relationship. It only favours the husband; he has the sole right to take the

whole estate of his deceased wife to the exclusion of her blood relations. On the other

hand the wife has no reciprocal right to inherit her husband, to say the least the wife

was considered as part of the deceased estate capable of being inherited. In the

absence of any arrangement by the deceased, the estate is shared among the able male

relations of the deceased per capita where they were of equal strength in relationship

with the deceased.36

It has been opined that: Females were further disentitled out of the Arabs desire to limit the

circulation of estate within the family cycle, to which women were not believed to belong.

More so, they were in their own rights considered as heritable property forming part of the

estate.37

These inequalities and exclusion of women from inheritance thereby, degrading them to the

position of chattels or even more to the lowest status, have been removed by the emergence

of Islam and a more equitable and just principle has been introduced and adopted in

inheritance, thereby ensuring absolute rights of women in different capacities, as mother,

sister, daughter and wife.38

In all, Islamic law of inheritance developed to make a reform of those ancient rules and

customs. And the pre-Islamic system of inheritance continued at the beginning of Islam for

some time, until when a major systemic and systematic reform took place.

1.2.0: INHERITANCE DURING THE EARLY PERIOD OF ISLAM: A SUMMARY

OF THE REFORMS
36
Gibb H. A. R. et al “Shorter Encyclopaedia of Islam”, (1953), p
37
Idris S, ” An Appraisal of Women’s Right of Inheritance under Islamic Law” Ibid; Qadri A.A, Islamic
Jurisprudence in the Modern World, Taj Company, Delhi, (1986), p. 8
38
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), Ibid
It was in the midst of the above uncertain and discriminatory system of inheritance that Islam

came. Islam felt and realized the need for revolutionary changes in the affairs of mankind,

which inter alia includes the law of inheritance. 39 The Islamic reform rebuilt the rules of

succession and introduced equality among the sexes in accordance with their natural position.

These were based upon the principles that the property of the deceased should devolve on

those who have the strongest claim to be benefited by it and in proportion to the strength of

such claim with harmonious distribution of estates among the claimants. 40 The Islamic rules

of inheritance were introduced through a divine revelation to remedy the apparently unjust

and unequal treatments of the entitled heirs.41

The Pre-Islamic system of inheritance of facilitations, relationships, adoption, oath of

brotherhood and patron continued even at the beginning of Islam until when a major reform

took place by the Prophet (May the peace and blessings of Allah be upon him). The Prophet

initiated a temporary system of inheritance based on Islamic fraternity called, “mu’akhah”.

Mu’akhah’s inheritance is based on brotherhood and, in effect, means that when a Makkah

immigrant died having no blood relatives in Madinah to inherit him, his Madinise brother in

faith will inherit him.42

Therefore, Muslims that emigrated from Mecca to Medina in other words known as

Muhajirun established a link of brotherhood with the people of Medina who are referred to as

the helpers in other words known as Ansar to the extent that they became like blood brothers

and they in effect started to inherit each other’s property if one of the two died.43

39
Qadri A.A., Islamic Jurisprudence in the Modern World at p. 424
40
Salako Taofiki Ajani et al, ‘The Value Of Islamic Inheritance In Consolidation Of The Family Financial
Stability’, IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 8, Issue 3 (Jan. - Feb. 2013),
p 15, PP 15-23e-ISSN: 2279-0837, p-ISSN: 2279-0845. Accessed through www.Iosrjournals.Org on 15/03/2016
41
Coulson, N. J; pp. 31-32
42
Qadri A A,, Islamic Jurisprudence in the Modern World , Ibid
43
Ibid, P. 11 As quoted from Tafsir al-Tabari vol. 8 PP.277-288
In fact, this period was a period when the emigrants were indeed cut off and stopped from

dealing with their blood relations that believed but did not emigrate. 44To this end the holy

Qur’an provides thus:

Those who believed and adopted exile, and fought for the faith, with their

property and their persons, in the cause of God as well as those who gave

(them) asylum and aid, these are (all) friend and protectors one of another.

As to those who believe but came not into exile, ye owe no duty of

protection to them until they come into exile.45

Consequently, by virtue of the above verse, Abdullah, Y A in his commentary stated that

the Emigrants and the helpers became like blood brothers and were so treated in matters

of inheritance during the period when they were cut from their kith and kin. 46 It has been

submitted that the wisdom of this legislation was to encourage Muslims to migrate with a

view to foster and inject in them a sense of unity, love, compassion and to transform them

into one solid force.47

However, the military compact was allowed to continue as a ground of inheritance but was

later abolished by the provision of the Holy Qur’an relating to inheritance. After the verses of

inheritance were revealed the prophet (SAW) added a great deal of information and

knowledge by his explanations and interpretations of those verses, which leads to the

development of Islamic law of inheritance till date.48

A more equitable and fair principles of inheritance has been introduced and adopted by

Islamic law, thereby ensuring the absolute right of women in different capacities as mothers,

sisters, daughters and wives(s) and all those categories of persons that were excluded by the

44
Idris S. at ,p.17
45
Abdallah Y. A,. The Holy Qur’an Text, Translation and Commentary, Dar-al Arabia, Beirut Lebanon, chapter
8 verse 72, (1968), PP. 433 – 434
46
Ibid
47
Keffi S. U. D., Some aspects of Islamic Law of Succession, P. x
48
Ibid
pre-Islamic rules of inheritance, to inherit and benefit from the property of their deceased

relatives.49 Initially all the above stated grounds of inheritance continue to apply in the

distribution of the estate of a deceased person. Islam however introduced reform in a

transitory manner.50

Furthermore, the second phase of the transition witnessed the abrogation of inheritance on the

basis of Islam brotherhood. This was perhaps on account of the cessation of the

circumstances of prevailing hospitalities meted on Muslims which subsided on account of

Islam gaining more ground and recognition as a force reckoned with leading to mutual pacts

entered into with the Mecca’s rulers, the effect of which was to allow Muslims resident in

Mecca that did not migrate to Medina to deal with their Muslims brethren that migrated to

Medina. This stage crystallized with the liberation of Mecca.51

The first revelation in this regard upholds the strength and priority of blood relationship

without making reference to the relationship established between the Muhajirun and the

Ansar. The Holy Qur’an provides thus: “Kindred by blood have prior rights against each

other in the book of Allah.” Thereafter, inheritance on the basis of Islamic brotherhood

among the muhajirun and the Ansar was abrogated.

In its abrogation the Holy Qur’an provides; “Blood relations among each other have

closer personal ties in the Decree of Allah (regarding inheritance) than (the brotherhood of

the believers and muhajirun).”

The abrogation of the Islamic fraternity as a basis of inheritance was followed by the

abrogation of adoption and defence pact as ground of inheritance and in their place definite

rules were ordained to govern inheritance.52

49
Idris S, “An Appraisal of Women’s Right of Inheritance under Islamic Law”, Ibid
50
Ibid
51
Ibid
52
Mary F. Radford, “The Inheritance Rights of W omen Under Jewish and Islamic Law”, 23 B. C. Int' l &
Comp. L. Rev. 135, (2000), available at <http://lawdigitalcommons.bc.edu/iclr/vol23/iss2/2> accessed 15/06/16
The Quran established rights of inheritance between husband and wife and in favour of

certain close females blood relatives the mother, the daughter, and the sister by prescribing

fractional parts (faraid) of the deceased’s estate as the entitlement. The new rules introduced

by the Holy Quran do not altogether abrogate the customary system but merely modify them

by imposing upon it a new legal class of heirs. The male agnates, those who used to inherit in

Jahiliyyah period still inherit but now after the satisfaction of the claims of those relatives

introduced by the Quran.53

Islamic Reformation on Inheritance Islam removed all the abnormalities in inheritance

through the proclamation made in Qur’an chapter 4 verse 7 as follows:“For men is a share

and for women is a share of what is left by parents and those nearest related, whether, the

property be small or large – a legal share”

Women were therefore made to inherit their husband and vice versa. And daughters,

mothers, sisters and granddaughters were granted right to inheritance as their male

counterparts. As reported by Ambali. 54Children have right in the property of their parents.

Parents have shares in the estate of their children and vice versa.

In fact, it is noteworthy that it was a woman according to M. A. Ambali: that Allah used to

liberate the weak from the injustice of the strong and caused a revolution the better of which

human civilization is yet to witness. The widow of Sa’da to Rabi brought the two female

orphans of Rabi to the Prophet protesting “Oh Apostle of God, here are the two daughters of

Sa’da b. Rabi who was killed / martyred while fighting on your side in the war of Badr. Their

uncle sat on their property and did not give them anything. They cannot be married without

money. The Prophet replied that God will decide. Then the verse of succession was revealed.

53
Ibid
54
See I O Oloyede and A.F. Ahmed, “Al-Mīrāth : Islamic Law Of Succession”, online material available at
www.nou.edu.ng accessed 15/03/2016, p. 20
The Prophet (PBUH) sent for their uncle and said. Give the two daughters of Sa’ad 2/3 of the

estate; give their mother 1/8 of the estate. The rest is for you.55

In summary the reforms introduced by Islam in the rules of inheritance is two folds:

a. It makes the female a co-sharer with the male, and

b. Divides the property of the deceased person among the heirs on a democratic basis,

instead of handling it all over to the eldest, as is been done by the law of

primogeniture, that is by giving rights of inheritance to those who were by the ancient

law.56

It is crystal clear that the inevitable changes required in establishing the Islamic law of

inheritance were the reforms done to the inheritance under prior to the Shari’ah.

1.3.0: ISLAMIC RULES OF INTESTATE AND THE RIGHTS OF WOMEN

Basically, there are situations where the devolution of property takes place without the

intervention of the owner. The situation arises where the owner of such property dies without

specifying how and in what manner his property is to be distributed among his heirs. In this

situation, he is said to have died intestate. In order to avoid injustice by denying those entitled

to inherit as was the case prior to the advent of Islam, the distribution of such property is

made by Allah57:

Allah in His infinite wisdom has prescribed in a number of verses the system of inheritance in

Islam. Indeed the revelations of the Mirath in the Quran and the Hadith are privileged honour

to mankind for Allah has proclaimed that: “… we have honoured the children of Adam...”

what an honour indeed to have a man’s succession plan constructed and structured by the All-

knowing Allah some several thousand years before his creation.58

55
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), Ibid
56
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate)pp 49-50
57
Dalhatu Idris Esq., “The Means of Acquiring Private Ownership of Property in Islamic Law: An Appraisal”,
Nigeria Islamic Law Journal NILJ (CIVIL) volume 1, 2013, p 229
58
Yusuf Abdulrashid & Sheriff E.E Okoh, Succession under Islamic Law, p. 2
The Holy Quran Provides: “From what is left by parents and those nearest related there is a

share for men and a share for women, whether the property be small or large…59

The verse stipulates that both male and female relations of the deceased are entitled to their

proportionate shares. There are two classes of heirs i.e. those who have specific shares (fard)

mentioned in the Quran and the Asabah, i.e. those who are entitled to the remainders of the

shares.60

Succession under Islamic law has many requisites which can be called constituents of

succession: before the estate of a deceased Muslim is distributed among his heirs the

following must be established:

a. Death of the person to be inherited: All the jurists agreed that death is a necessary

condition of inheritance in Islamic. This death can either be in fact or in law. A

deceased person is said to have died in fact where his death has been proved by some

strong evidence such as testimony of witnesses who attended his funeral or by

certified evidence such as certificate of death duly signed by a physician who

conducted post-mortem on the remains of the deceased. A deceased person is said to

have died in law when he is declared dead by a competent court, as in the case of

missing person.61

b. Survival of an heir: An heir is a person who is related to the deceased person as

stated in the Quran verses 11, 12 and 176 of chapter 4. For the heir to inherit, he has

to prove that he has survived the deceased. Survival here may either be actual or

59
Quran Chapter 4 verse 7
60
Abdul Salam, H A, “Achieving Equitable Wealth Distribution: Exposing The Rule Of Mirath As A
Redistributive Agent”. p 59
61
Dalhatu Idris, “The Means of Acquiring Private Ownership of property in Islamic Law: An Appraisal” pp
229-230
 constructive (such as in the case of an unborn child). In order to inherit, the child must

be born alive within the recognized period of gestation.62

Where some people died simultaneously calamity such as in an accident and it is not

practicable to determine who died first, none of them will inherit the other and the

estate of each of them goes to his heirs who are living. This is the view of Imam

Maliki, Shafi’i and Hanafi.63On the other hand, Ali Ibn Abi Talib and Ibn Mas’ud

hold that some of those deceased persons shall inherit from others, that is, the younger

relatives will inherit from the older ones. 64

c. The estate to be inherited: the deceased must have left behind inheritable property.

The property forming part of the estate must be legal in the eyes of the law. It is said

to be legal if there is no textual prohibition regarding its use. Furthermore, it must be

capable of being used.65

It must be noted that when a person dies, his property is not subject to inheritance

until after all existing liabilities are paid from it. These liabilities include debts,

whether secured or ordinary, funeral expenses, and Wasiyyah.66When these liabilities

are discharged and still there is something remaining, then what remains goes to the

heirs.

d. Absence of legal impediments: there must not exist any legal impediment to inherit

the deceased by the heirs. These impediments include apostasy, difference in

domicile, slavery and homicide. Muslim jurists are unanimous that an apostate shall

not inherit his Muslim relations. But the apostasy must be voluntary and the apostate

62
Ajibola, A.D., Introduction to Islamic Law, International Islamic Publishers, Karachi, (1981) p 296
63
Gurin, M. A. , An introduction to Islamic Law of Succession (Intestate and Testate), p 19
64
Ibid
65
Ibid p. 8
66
Ibid
 must be a legally incapacitated person.67The jurists, however, differ on whether a

Muslim can inherit an apostate. Majority are of the view that a Muslim cannot inherit

an apostate. On the other hand, minority hold that a Muslim can inherit an apostate

provided that the property is acquired prior to the act of apostasy.68 Similarly, all the

jurists agreed that a person who intentionally kills another should not inherit his

victim.69This prohibition sounds perfectly rational because without it people will be

encouraged to kill their wealthy relations.70

In summary, most of the scholars agree that before the deceased property could be shared

among his survivors, the following five rights in order of preference should be observed:71

a. Settle his mortgages

b. Pay his funeral expenses

c. Finding out if he has debts to pay and pay it without delay.

d. Execute his will if he has willed certain things to certain people not exceeding one

-third of the property.

e. Distribute the remaining property among the heirs in line with the Islamic law.

To Hanafi and Maliki schools, mortgaged property is not shared until cleared. But Hambali

and Shafi’i said that they should distribute it to the heirs who will balance the mortgage under

the supervision of the judge.72These are the preliminaries to inheritance of the heirs under the

Islamic law of inheritance. Therefore after all the above have been considered then the shares
67
Isa J. B. ,“The Law of Succession in Shari’ah”, The Jurists (Journal of Muslim Students Society, Nigerian
Law School chapter), 2002 , Vol.2, No 2, Fayousuf Communication ltd, Lagos, p 154
68
Ibid
69
Ibid p. 155
70
See Dalhatu Idris, , “The Means of Acquiring Private Ownership of property in Islamic Law: An Appraisal”
p. 231
71
W. A. Coggins, (2004), “Succession in Traditional Islamic Law”, Journal of the Missouri Bar 60 no
4 180-4 JI/ Ag. 2004. (aiu library)
72
Taofiki Salako and ors, ‘The Value Of Islamic Inheritance In Consolidation Of The Family Financial
Stability’, p 3
of the heirs would be determined and given to them accordingly. Hence: the need to discuss

the female heirs and their respective shares.

1.3.1.0: THE FEMALE HEIRS AND THEIR SHARES

The female heirs are generally seven and circumstantially ten as follows:73

a. Daughter

b. Mother

c. Son’s daughter (and son’s female descendants)

d. Wife (widow)

e. Father’s mother (and her ascendants, e.g. mother’s father’s mother, etc)

f. Mother’s mother (and her ascendants, e.g. mother’s mother’s mother)

g. Full sister (germane sister)

h. Half sister of the same father (consanguine sister)

i. Half sister of the same mother (uterine sister)

j. Female Emancipator of a slave74

The shares allotted to women as daughters, mothers, sisters and wives by Allah in the Holy

Qur’an the details of which were worked out by Prophet Muhammed are summarised below:

1.3.1.1: Daughter’s share75

A daughter is a primary heir as stipulated in the Holy Qur’an and she is always entitled to

inherit. She takes her fixed share in the absence of a son and becomes a residuary in the

presence of a son76. A daughter of a deceased has three ways of inheritance under different

situations:

73
See Dalhatu Idris, , “The Means of Acquiring Private Ownership of property in Islamic Law: An Appraisal” p.
231
74
See Muhammad Al-Jibaly, Inheritance Regulations and Exhortations, 2nd edition, p 35
75
Q4:11
76
Dr A Hussain, The Islamic Law of Succession, p 179
 a. In the absence of a son, she is entitled to half (½) of net estate of her deceased parents

when she is the only child of the parents.77

b. Two or more daughters (in the absence of a son are entitled to two-thirds (2/3) of the

net estate. They will share the two-thirds (2/3) equally.78

c. In the presence of a son or sons, the daughter (one or more) become

residuary. Each daughter gets half (½) of the share of the son.79

1.3.1.2: Widow/Wife

The widow is in the group of primary heirs who always get a share of the inheritance (unless

there is some impediments) and she is also of those heirs who can be partially excluded.

Technically speaking, when a husband dies, his wife becomes a widow, so the inheritance

share is strictly speaking that of a widow not a wife although the term wife is often used in

this context.80

 The widow gets a fixed 1/8 share if there is a child or son’s son (how low so ever) and

son’s daughter (how low so ever)81

 The widow gets a fixed share of ¼ if there is no child and no son’s son (how low so

ever) or sons daughter (how lo so ever). 82

 If the widows are more than one window, they share in the allotted share of 1/8 or

1/483

1.3.1.3: Mother’s Share

The right of a woman to inheritance in her capacity as a mother is stated in the Holy Quran

thus:
77
Ibid
78
See Gurin M A, introduction to Islamic Law of Succession (Intestate and Testate,) p 61
79
Ibid, p 60
80
Dr A Hussain, The Islamic Law of Succession, p 164
81
Ibid
82
Ibid
83
Ibid
 For parents a sixth shares of inheritance to each if the deceased left

children; if no children and the parents are the (only) heirs, the mother has

a third; if the deceased left brothers (or sisters) the mother has a

sixth… Ye know not whether your parents or your children are nearest to

you in benefit. These are settled portion ordained by Allah and Allah is All-

Knowing, All-Wise.84

The mother of a deceased is a primary heir. She is always entitled to inheritance. In the Holy

Quran, the mother is entitled to 1/3 (maximum) and 1/6 minimum) as her share. There are

three conditions that may affect her share. These are as follows:

a. She gets one sixth (1/6) with a child or with the son’s child howsoever low or with two

or more brothers and sisters whether full or half blood (consanguine and uterine).85

b. She gets one-third (1/3) of the total property when there is no child or son’s child and not

more than one brother and sister; Full blood relationship means the relationship through

both parents e.g. real brother or sister, half blood relationship means relationship

through only one of the parents, e.g. brothers and/sisters where only father or mother

is common, consanguine sisters/or brothers mean the children of the same father by

different mothers; uterine sisters and or brothers mean the children of the same

mother but by different fathers.86

c. She gets one third (1/3) of the balance not of the total, in the presence of the father and

spouse of the deceased. This means that a mother gets one third (1/3) of the balance after

giving shares to the husband or wife in two cases when there co-exists a husband with

both parents (b) or the wife with both parents. However, if there exists a grandfather

instead of father the mother takes one third (1/3) of the whole property.87

84
4:11
85
See Gurin M A, introduction to Islamic Law of Succession (Intestate and Testate,) p 62
86
Dr A Hussain, The Islamic Law of Succession, p 171.
87
Ibid, p 172
1.3.1.4: Grandmother’s share

The grandmother is not specifically mentioned in the Holy Quran as a legal heir. Rather, she

was added to the list through a Hadith.88

This means that the grandmother is not a primary heir. She is a substitute for the mother and

is therefore entitled to inherit only in her absence. 89 The mother excludes all grandmothers

paternal or maternal. The true grandmother inherits as a sharer in the absence of the mother.

All true grand mothers are excluded by the mother.90

Her share is one sixth (1/6) in all circumstances. A grandmother never gets one third (1/3) of

the mother’s maximum share. This means that in conditions where a mother gets one third

(1/3) a grandmother will get only one sixth (1/6).

More than one grandmother will divide one sixth (1/6) among themselves equally. The

paternal grandmother is excluded by the father. However, she is not excluded by the

grandfather. Therefore she co-inherits with the grandfather.91

1.3.1.5: Sisters’ Share

With regard to the right of inheritance of a woman as a sister, the Holy Quran says:

They ask thee for a legal decision. Say; Allah directs (thus) about those who

leave no descendants or ascendants as heirs. If it is a man that dies leaving a

sister but no child she shall have half the inheritance… If there are two

sisters, they shall have two thirds of the inheritance (between them)…

Thus doth Allah make clear to you (His law) lest ye err? And Allah hath

knowledge of all things’.92

88
As in the narrated Hadith, which says: ‘From Ibn Muraydah from his father that the Prophet allotted one-sixth
to the Grandmother in the absence of the mother of the deceased’ Transmitted by Abu Daud and al-Nisai. See
Ibn Hajar al-Asqalani, Bulugh al-Maram min adillati al-Ahkam (Dar Masr Press Cairo) p. 200.
89
See Gurin, M A, An introduction to Islamic Law of Succession (Intestate and Testate, p 62
90
Dr Hussain, The Islamic Law of Succession , p 213
91
Ibid, p 215
92
Quran 4:176
The sister of a deceased who can inherit could be sister of full blood, consanguine

sister or uterine sister. Different conditions govern the sisters’ inheritance based on

whether they are full, consanguine or uterine sisters.

1.3.1.6: Full sisters (sisters of the same mother and fathers)

A full sister (also called germane or real sisters) has the same father and mother as the
93
propositus. When the full sister is entitled to inherit, she may inherit as a share or a

residuary. The following conditions govern the sisters’ rights of inheritance:

a. If the deceased has one sister and no father, children or grand children, the sister will

inherit half (1/2) of the estate.94

b. If there are two or more sisters and no father, children or grand children, the

sisters will receive two thirds (2/3) which they will share equally among themselves.

c. If the deceased has full brothers, one or more, the full sister will also receive the

balance of the estate. A sister will take half (1/2) of the amount a brother receives.95

d. Sisters will not inherit if the deceased has any of the following relatives: father,

paternal grandfather, great-grandfather, son, grandson or great grandson.

1.3.1.7: Consanguine sisters (same father different mothers)

The conditions governing their rights of inheritance are as follows:

 If the deceased has only one consanguine sister, she will inherit half (1/2) of the

estate.96

 If there are two or more consanguine sisters, they will jointly inherit two thirds (2/3) if

there is no full sister. The two third (2/3) will be shared equally among them.97

93
Hussain, The Islamic Law of Succession p 276
94
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), p 60
95
Ibid , p 99
96
Ibid p 101
97
Ibid, p 61
  If the deceased has one full sister, she takes half (½), the consanguine sisters will

receive one sixth (1/6) to complete two third (2/3).98

 If the deceased has two or more full sisters, the consanguine sisters will not

inherit.

 If the deceased has any of the following, a son, grandson, great grandson,

father, grandfather, great grandfather or full brother, the consanguine sisters will

not inherit.

 She takes the residue in the presence of the daughter or granddaughter99

 If the deceased has a consanguine brother, she will inherit the residuary. The

residuary will be divided between her and the consanguine brother. A consanguine

brother will receive twice the share of a consanguine sister.100

1.3.1.8: Uterine Sisters (Sisters of the same mother but different fathers)

The uterine (cognate) sister has the same mother as the propositus but they have different

fathers. The uterine sister inherits as a sharer101 The uterine sister has three conditions

regarding her right of inheritance;

 She will inherit one sixth (1/6) if she is the only uterine sister of the

deceased.102

 Where the uterine sister is more than one, they will jointly receive one third

(1/3). They will share this equally among themselves.103

 The uterine sister will not inherit if the deceased is survived by children, son’s

children, father or paternal grandfather.104

98
Ibid , 101
99
See Dr Hussain, The Islamic Law of Succession, p 284
100
Ibid
101
See Hussain, The Islamic Law of Succession, p 288
102
Gurin, M A, An introduction to Islamic Law of Succession (Intestate and Testate), p 62
103
Ibid, p 61
104
Ibid
1.3.1.9: A female emancipator of a slave

It has been established by scholars that it is in this kind of relationship (through fictitious

relationship) (Wala`) that a female emancipator of a slave can inherit him or her. Wala`

literally means friendship and assistance. It is a bond between two individuals which creates a

relationship between them allowing inheritance. The Hanafi jurists recognize two kinds of

Wala`, the master manumitted slave (Wala` Al-Itaq or Mawla Al-Itaq) and the successor by

contract (Wala` Al Mawala or Mawla Al-Mawala`)105

It is lucid that Grandmothers, mothers, aunts, sisters (both full and half), daughters and

granddaughters all have rights of inheritance under Islamic law thus granting to them as

women a legal and economic status which was not achieved by their counterparts under the

European and other legal systems until very recently.106

1.4.0: PRACTICAL ILLUSTRATIONS OF THE FAIRNESS OF THE ISLAMIC LAW

AS REGARDS WOMEN

As stated earlier, various claims abound on the issue of women “subjugation” by men as

regards inheritance share in Islam as stated above. These claims need to be checked so as to

depict the exact position where women stand in the law of inheritance under the Islamic law

whether or not women are being actually discriminated against. 107

1.4.1: Cases where a woman inherits half or less the share of a man108

 Where the deceased is survived by a son and a daughter, the Quran says: “Allah

instructs you concerning your children, to the male, the equivalent portion of two

105
Ibid, p 44
106
Abdurrahman I Doi, Women in Shari’ah, P 168
107
Sabit Ololade Qasim, “Refuting The Subjugation of Men Vis-à-vis the rights of women to inherit under
Islamic law”, Al Maslahah (Journal of Law and Religion), Vol. 6 2014-2016., p 67
108
See Ali Gomaa, “Do women take unequal shares in inheritance in Islam”, available at
http://www.daralifta.org/foreign/viewasrticle.aspx?ID=120&CategoryID=3 accessed July 2016-07-17
 females.”109 Or in summary, if the deceased leaves a daughter and a son, or a son’s

son or a son’s daughter.

 If the deceased only leaves a father, mother and does not leave any children, whether

the deceased is a husband or a wife and leaves his/her partner. The father gets twice as

much as the mother.110

 If the deceased leaved full sisters and half brothers (the same father and the same

mother).

 If the deceased leaves paternal half sisters and brothers.

1.4.2: Cases where women inherit while the male counterpart does not inherit111

By a diagrammatical illustration this case would be better understood. Where a woman is

survived by a husband, father, mother, a daughter, a son’s daughter or son’s son leaving

behind N195, 000:

A.

Heir Quranic share Calculation amount

Husband ¼ 3/15 x 195,000 39,000

Father 1/6 2/15 x 195,000 26,000

Mother 1/6 2/15 x 195,000 26,000

Daughter ½ 6/15 x 195,000 78,000

Son’s Daughter 1/6 2//15 x 195,000 26,000

B.

Heir Quranic share Calculation Amount

Husband ¼ 3/13 x 195,000 45,000
Father 1/6 2/13 x 195,000 30,000
Mother 1/6 2/13 x 195,000 30,000
109
Quran 4 v 11
110
The spouse gets his/her share whether ¼ or ½ then the mother of the deceased gets her fractional share while
the father gets the remainder. This is called a case of Gharawayn. See Al- Jibaly M., Inheritance: Regulations &
Exhortations, 2nd ed. Al Madinah Al-Munawarah: Al Kitāb and Sunnah Publishers, 2005, P 47.
111
A.O. Yekini, “Jurisprudential study of the status and protection of female heirs under Islamic law of
succession”, Nigeria Islamic Law Journal NIJL (CIVIL), Volume 1, 2013, p 288
 Daughter ½ 6/13 x 195,000 90,000
Son’s Son Remainder NIL

Here, the son’s daughter inherits N26, 000 as a first-degree share while the son’s son inherits

nothing.

1.4.3: Cases where women have a share equal to men112

 If the deceased leaves a father, a mother, and a son’s son.

 If the deceased leaves a uterine brother and sister.

 If the deceased leaves full sisters, and uterine brothers and sisters.

 If the deceased leaves a daughter, brother, or the nearest residuary ('Asabah) to the

father (with no one to exclude anyone from inheritance).

 If the deceased leaves a father, a maternal grandmother and a son’s son.

 If the deceased leaves a husband, a mother, two uterine sisters and a full brother.

According to ‘Umar, two uterine sisters and full brothers share one third equally.

 If the deceased leaves her husband and a full sister, her sister inherits the same as the

male. If the deceased leaves a husband and full brother, the husband is entitled to half,

while the remainder goes to her brother as a residuary. If she leaves a husband and a

sister, then the husband has half and the sister receives the remaining half as well.

 If the deceased leaves a uterine sister and a full brother. If there is a husband, mother,

uterine sister, and a full brother, then the husband is entitled to half, the mother is

entitled to a sixth, and the remainder (one sixth) is given to the full brother as

residuary.

 If there are no shares or residuaries, then the Dhawul - Arham (distant relatives) are

the heirs. In this case, the estate is divided among them equally. For instance if the

112
Sabit Ololade Qasim, “Refuting the Subjugation of Men vi-a-vis the rights of women to inherit under Islamic
Law” pp. 71-72
 deceased leaves a daughter’s daughter, a daughter’s son, a maternal uncle and a

maternal aunt, everyone will receive an equal share.

 Where a deceased (wife) is survived by a child, his parents and a husband. The

husband gets ½; father gets 1/6 mother gets 1/6 and son gets the remainder. (here the

father and mother gets the same share.)

 There is also equality between siblings of full blood (germane brother and sister)

 If the deceased leaves a uterine brother and sister.

1.4.4: Cases where the female inherit more than male113

It is manifest that the biggest first-degree (fixed and mandatory) share of inheritance in Islam

is two-third (2/3) and this share is granted to females not males as presented in the preceding

discussion. The following case study would suffice:

Case study1:

Where a woman is survived by a husband, father, mother, and two (2) daughters or two sons

leaving N60, 000 (sixty thousand naira), the distribution is as follows:

Heir Quranic share Calculation Amount

Husband ¼ 3/15 x 60,000 12,000
Father 1/6 2/15 x 60,000 8,000
Mother 1/6 2/15 x 60,000 8,000
2 daughters 2/3 8/15 x 60,000 32,000
The denominator of the distribution will be 15 instead of 12.114

Where the heirs are two sons, the distribution is thus

Heir Quranic share Calculation Amount

Husband ¼ 3/12 x 60,000 15,000
Father 1/6 2/12 x 60,000 10,000
Mother 1/6 2/12 x 60,000 10,000
2 sons Remainder 8/12 x 60,000 25,000
The denominator is 12

113
A.O. Yekini, “Jurisprudential study of the status and protection of female heirs under Islamic law of
Succession”, p 285
114
Using the ‘Awl principle
NB: In the case of the daughter, they get N16, 000 each while the two sons in similar scenario

will get N12, 500 each.

Case study 2

Where a woman is survived by a husband, mother and 2 sisters or 2 brothers leaving behind

N48, 000

A.

Heir Quranic share Calculation Amount

Husband ½ 3/8 x 60,000 18,000
Mother 1/6 1/8 x 60,000 6,000
2 Germane sisters 2/3 4/8 x 60,000 24,000

Were the 2 germane sisters to be germane brothers, then the distribution will be as follow:

B.

Heir Quranic share Calculation Amount

Husband ½ 3/6 x 60,000 24,000
Mother 1/6 1/6 x 60,000 8,000
2 Germane brothers Remainder 16,000
Therefore one germane sister receives N12, 000 while her brother counterpart receives N8,

000

Case study 3

Where a woman is survived by a husband, father, mother and a daughter or son leaving

N156, 000

A.

Heir Quranic share Calculation Amount

Husband ¼ 3/13 x 156,000 36,000
Father 1/6 2/13 x 156,000 24,000
Mother 1/6 2/13 x 156,000 24,000
A daughter ½ 6/13 x 156,000 72,000
B.

Heir Quranic share Calculation Amount

Husband ¼ 3/12 x 156,000 39,000
Father 1/6 2/12 x 156,000 26,000
Mother 1/6 2/12 x 156,000 26,000
 A son Remainder 65,000

Here the daughter takes N72, 000 as a statutorily prescribed share. In the case of a son, he

inherits N65, 000 as a remainder after which those with fixed shares might have been settled.

From the above representations it is crystal clear that it is not in all situations that the female

take less the share of male. Also it is established that on many occasions the female may take

the equal share of a male or even more.

1.5.0: THE RIGHTS OF WOMEN IN THE TESTATE ISLAMIC INHERITANCE

SYSTEM

2.5.1: A Brief History of Wasiyyah and what it means

Prior to the coming of Islam, Wasiyyah (bequest) is known among the ancient societies.

Testate succession is another mode of acquiring private ownership in Islamic law. It can

simply be described as a gift of property or usufruct therein by its owner to another,

contingent to the donor’s death.115

Therefore, in the Jahiliyyah period before Islam, Arabs disposed of their property as they

liked because no law concerning bequests or inheritance existed to guide them. They could

make a bequest in favour of anyone, depriving their own parents, children and wives. At

times the bequest was made in favour of rich and influential members of the clan.116

Succession could be absolutely testate or intestate, or even partial testacy, but a Muslim’s will

must of necessity be in tandem with the dictates of Islamic law. As a general rule, a Muslim

is allowed to exercise only two rights with regards to his rights to determine who succeed his

estate: he may exercise the right to die “partially testate or absolutely intestate”. Absolute

testacy is though not novel to the canons of Islamic law, owes its application to necessity and

115
Dalhatu Idris, “The Means of Acquiring Private Ownership of property in Islamic Law: An Appraisal” p 231
116
Doi A. I., Shari`ah Islamic Law, 498
innovative trends in areas where the Shari’ah law has not gained primacy in terms of its

application to individual Muslims or the Muslim Ummah in general.117

Thus it can be rightly said that, absolute testacy under the Shari’ah law is only necessitated

by environmental and legal constraints encountered by Muslims. Therefore in face of these

realities, succession under Islamic law may be broadly divided into three categories:

intestacy; partial testacy; and absolute testacy.118

Allah says in Suratul Baqarah verse 180 that:

It is prescribed for you, when death draws near to one of you, and leaves

behind some property. That he makes a bequest in favour of his parents and

relatives according to reasonable usage: an obligation on the god fearing

Wasiyyah is derived from the Arabic word wasa which means he conveyed. Wasiyyah is a

gift of property by its owner to another contingent on the giver’s death. In Islamic law, a

Muslim is allowed to ‘will’ out not more than 1/3 of his property and he cannot make a will

to his legal Quranic heirs either to increase or decrease their shares. 119It may signify a moral

exhortation, a specific legacy or the capacity of executor.120

After a person’s death, his debt if any should be paid first, then his bequest and distribution of

the remaining property among his heirs.121If Wasiyyah is made for a dead person, it will go to

his heirs. The will could be made orally or through writing.122

A will from the Islamic point of view is a divine institution; since its exercise is regulated by

the Holy Quran and the Sunna of the prophet (may the peace and blessing of Allah be upon

117
Yusuf Abdulrashid & Sheriff E.E Okoh, Succession under Islamic Law, p. 3
118
Ibid
119
Salako Taofiki Ajani et al, ‘The Value Of Islamic Inheritance In Consolidation Of The Family Financial
Stability’, p 8
120
Gurin .M.A, , An introduction to Islamic Law of Succession (Intestate and Testate), p 133
121
See Abdurrahman, ‘Inheritance in Islam’ (an Article on Inheritance in Islam 2008), available at
www.jannah.org/mad accessed 15/03/16
122
Gurin .M.A, An introduction to Islamic Law of Succession (Intestate and Testate), p 135
him).123 The concept is that a Muslim as well as what he earns in life belongs to God. When

the former dies the ownership of all what he had reverts to God, Who decides what to do with

His property. The one-third for the Wasiyyah is God’s grace for the beneficiaries.124

After taking out the funeral expenses and debts, i.e. the debts of the right of Allah and that of

individuals, the Wasiyyah or the bequests will be carried out. The bequests include all the

gifts that are made during the final illness of the deceased, since the majority of the jurists

consider them all as bequests. The bequests and gifts added together must not exceed the one-

third of the estate of the deceased unless consented by the heirs.125

1.5.2: Essentials of Bequest

For a bequest to be valid there must exist the following:

The valid Wasiyyah has four principles:126

1.5.2.1: Testator (Al-Musi):

Musi, the testator, i.e. the person who makes the will; part of the attributes of Musi is

adulthood, independence, sanity, absence of coercion in the decision and that he has full right

in law to dispose of the property in question. He is free to rescind his decision any time.127

The prophet (S.A.W) as reported by Sa’ad Ibn Abi Waqas who had no heirs except a

daughter, and he asked the prophet (S.A.W) whether he could dispose of the whole of his

property by Wasiyyah to which the prophet (S.A.W) replied that he could not dispose the

whole, nor even two thirds nor one-half, but only one-third.128

1.5.2.2: AL-Musa-Lahu – the beneficiary of Wasiyyah or the legatee – should not be an

heir. The prophet said: “A Will should not be made in favour of an heir”. However, an heir

123
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate), p 133
124
M A Ambali, The Practice of Muslim Family Law in Nigeria, p 388
125
A.I. Doi, Shari`ah Islamic Law, p 439
126
M.A. Ambali, The Practice of Muslim Family Law in Nigeria, p 386
127
Ibid
128
Ibid
can enjoy Wasiyyah in his or her favour if other co-heirs who attained adulthood approve it.

But if the co-heirs are divided the enforcement of such will shall affect only the share of the

heirs who approve it. For instance, a man dies and leaves behind three sons as heirs. His

estate is valued at #30,000. He willed #6,000 out in favour of child A and B disapproves of it

while child C Okays it. Without implication of the Wasiyyah, each child is entitled to

#10,000. But in the circumstance of disagreement between B and C over the Wasiyyah in

favour of A, and B who disapproves takes his due share of #10,000 as if there was no

Wasiyyah while child C who approves it will take #8,000. The child in favour of whom it

was made takes #12,000.129

Similarly, the principles apply to a Wasiyyah in favour of non-heir but which violates the

maximum of one third of whole estate. Its implementation is at the mercy of the heirs. Where

they disagree, its implementation is restricted only to the heirs who approve it.

1.5.2.3: Offer and acceptance (Sigha)

This Rukn is Seegah, i.e. the format in which Wasiyyah is made. It varies from person to

person but Islamic ethics demand that it be introduced with the following preambles as it

used to be the practice of Companions of the Prophet, peace of Allah be on him.

The position of a potential beneficiary to a Wasiyyah on the date of death of the testator

determines the entitlement of the beneficiary.130

1.5.2.4: The subject matter of the bequest (Al-Musi Bihi)

This Rukn is the quality of the item of property upon which Wasiyyah is made. It should be

valuable at the time of death of the testator and should be what Islamic law allows Muslims

to possess or what Islamic Law permits Muslims to invest in.131

129
M.A. Ambali, The Practice of Muslim Family Law in Nigeria, p 386
130
Ibid P 387
131
Ibid
1.5.3: WHAT THE WOMEN (FEMALES) GET IN WASIYYAH

The question here relates to whether a woman can be a legatee. It has been established earlier

that the person in favour of whom Wasiyyah is made, must be capable of ownership whether

he exists or is capable of existing, whether insane or sane, adult or minor. If he/she is not

capable of receiving like minors or insane persons, it can be accepted by his guardian on

his/her behalf. The only essential condition is that he/she must not be among the heirs. 132 The

Maliki Jurists have based their authority on the authority on the Hadith of the Prophet: “A

Will should not be made in favour of an heir”.133

Also it has been established that according to the Maliki School a Wasiyyah can be made in

favour of a legatee known to be dead, in which case the amount, will be used to pay off his

debts or will be divided among his heirs;134therefore even if a woman is a dead she can still

receive property through Wasiyyah.

Wasiyyah is also valid if made in favour of an institution or for a religious or charitable

object which is not opposed to Islam. 135It has been observed that the potentialities of the

Wasiyyah as an instrument of injustice have never eluded the mind of the framer of the

Islamic law. Allah has always known that, if man is allowed unlimited freedom to make

bequest to his loved ones, man would abuse such charity manipulating the freedom in favour

of a selected heir.136

Wasiyyah to a person not in existence at the testators death is said to be void; but Wasiyyah

can validly be made to a child in the womb according to all schools, but according to the

Hanafi school, the child should born within six months from the date of the Wasiyyah: in

132
Abdurrahman I. Doi, Shari’ah: The Islamic Law, BILQISU ILORI, 1404 A.H., A.S. Noordeen, available at
<www.ansnislamicbooks.com> accessed 17/07/2016 p 331
133
Abu Dawud, Vol III, p 113;
134
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate) p 138
135
Ibid
136
Yusuf Abdulrashid & Sheriff E.E Okoh, Succession under Islamic Law, p 181
which case it is presumed to have been in existence at the time of the Wasiyyah. The right of

the Wasiyyah is establishes upon birth, and until then no person can exercise any right on its

behalf. Neither the father of the child nor its mother can exercise any right on its behalf.

Neither the father nor the mother can exercise any right in respect of any legacy left to such a

child, even though it is a part of the body. 137If the child is delivered dead, the legacy is void

but if the child be born alive, and then dies, the Wasiyyah is lawful and should be distributed

among the child’s heirs.138Therefore if a woman should fall among this category the law is

not discriminatory on gender at all, she can inherit.

Wasiyyah can also be made to a non Muslim according to all schools except Shafi’i, who

regards a Wasiyyah by a Muslim to a non Muslim to be unlawful. But all the other school

admit in validity of a Wasiyyah made in favour of a non Muslim who doesn’t belong to

Darul-Harb (hostile country) and consequently, is not alien.139In relation to the share of

woman in this regard even when she is not a Muslim Wasiyyah according to the above stated

opinion can be made to her.

It is safe to conclude that as far a woman in whatever capacity does not fall short of the above

impediments and many other ones that are relevant she can get any portion bequeathed unto

her without any encumbrances in the eyes of the law. Since the Wasiyyah has been left in the

discretion of the testator, there is no particular discrimination on the basis of gender. Few

individual instances of perceived discrimination can only be noticed at times because the

testator is said to have it all.

137
Gurin M A, An introduction to Islamic Law of Succession (Intestate and Testate) p138
138
Ibid , p 139
139
Ibid
1.6.0: THE INEQUALITY OF THE SHARES OF WOMEN COMPARED WITH THE

SHARES OF MEN: A LEGAL JUSTIFICATION

One of the issues that has been generating hot debate in the circle of scholars both Muslims

and non-Muslims is the unequal proportion of inheritance between males and females in

Islam. It is believed that women are being short-changed by making their portion half that of

men. The holders of this erroneous belief could not see the reasons behind the unequal shares

between men and women in Islam.140

It is evident from the discussion of the rights of women to inheritance under Islamic law both

the testate and intestate systems, that in certain cases, a man takes double the share of a

woman. For example, a son inherits double the share of a daughter, a brother inherits double

the share of a sister and a husband inherits double the share of a wife. This inequality of

shares of inheritance has been misconstrued and criticised as a discrimination against women

by non-Muslims and some Muslim scholars/writers on Islamic law.141

Islamic law is unequivocally affirmed as the superior law because it is imbued with eternal

justice and perfection. Despite the perfection in the law, there are several protests from some

western scholars and Orientalists against its efficacy and certain Muslims are of similar

attitudes.142 One area that is subject of attack is the area of the status of women in Islam. With

particular reference to inheritance, it is widely believed that the Islamic law inheritance is

unjust to women. In fact, some have described Islam as a misogynist religion. 143In order to

justify the justice and equality system of Islam, the following points would be examined:

140
I.O. Oloyede and A.F. Ahmed, , “Al-Mīrāth : Islamic Law Of Succession”, p 76
141
Ali Shaheen Sardar, ‘Women’s Human Rights in Islam Towards a Theoretical Framework’ (2008)
International Law and Islamic Law p. 130..
142
A.O. Yekini, “Jurisprudential study of the status and protection of female heirs under Islamic law of
Succession”, Nigeria Islamic Law Journal NIJL (CIVIL) Volume 1, 2013, p 272
143
Ibid
Firstly it must be noted that: In Islam, the absolute owner of everything (living and non

living) is Allah144, the Glorious Quran says: to Allah belongs all that is in the heavens and

earth…145impliedly, right of ownership granted man or woman under the law of Islam is

partial and temporal. Like any other right, one’s right to own one thing or the other subsists

as long as that person lives. Out of Allah’s mercy mankind was created to be His appointed

trustees over all that belongs to Him on earth. 146 Thus, it is stated in the Quran that: “…and

He (Allah) has subjected to you, all that is in the heavens are on the earth! Behold, in that
147
are portents for those who reflect. This Quranic verse is addressed to both man and

woman as human being.

Allah says in Quran 18 verse 49 that: God is no oppressor of His servants, and Your Lord

wrongs no one. Therefore the issue of injustice may not be the right discussion as to women’s

rights in inheritance under Islamic law; because the inheritance of heirs is not based on

gender but on three primary conditions.148 Which are:

A. The extent of kinship to the deceased. The closer the heir to the deceased whether

male or female, the more such an heir inherits. A paradigm of this is seen where a

woman dies leaving behind a daughter and a husband the daughter receives half of the

woman’s estate while the husband receives one-fourth of his wife’s estate. In this

instance a daughter inherits more than her father.149

B. The generation to which the heir belongs. Regardless of gender, the daughter of a

decedent inherits more than the grandparents whether the grandfather or the

grandmother of the decedent because of the difference in the line of generation. For
144
Ibid
145
Quran 2:284
146
Ibid
147
Suratul Al – Jathiya, Quran 45:13
148
Sabit Ololade Qasim, “Refuting the Subjugation of Men vi-a-vis the rights of women to inherit under Islamic
Law”, p 67
149
Ibid p 69
 instance where a father dies leaving behind his father and mother and also a daughter.

Each of the grandparents inherits one-sixth while the daughter takes half. Here also a

woman has a greater share.150

C. Financial responsibility and maintenance: Chaudhry, Mutahhari, Ati, Ali-Khan,

Mahmud, El-Nimr and Maududi suggest that the reason why men take double the

share of women is not because Islam considers women as inferior to men. It is

therefore not a discrimination based on sex. Rather, the rationale for the double share

of inheritance given to men under Islamic law is based on the financial/economic

responsibilities which Islam imposes on men.151

Further explanations were given that the quantum of distribution of inheritance and the

designation of the circumstances in which a woman inherits a half as much as a man in the

cases shows that these rules are designed to strike a balance between rights and obligations.

Below are some of the reasons, explanations and rationale proffered by the divine law:

a. A man is the one saddled with the responsibility of the maintenance of the wife,

children and other needy relations under the Islamic law. It is his duty by law to

assume all financial responsibilities and maintains his dependants adequately.152

b. It is also his duty to contribute financially to all good causes in his society. All

financial burdens are borne by him alone. In contrast distinction to the above a

woman has no financial responsibilities whatsoever except very little of her personal

expenses, the high luxurious things that she likes to have. She is financially secured

and provided for.153for example:

150
Ibid
151
Chaudhry Muhammed Sharif, “Women’s Rights in Islam” page 75.
152
See A. O. Yekini, “Jurisprudential study of the status and protection of female heirs under Islamic law of
Succession” p 290 and Suratun Nisa’ verse 34
153
F. Soliman, ‘Women’s Life, Ethics & Values, Human Rights’, available at <http://www.readingislam.com>
accessed 15/06/2016
 I. Where she is a wife, her husband is the provider,

II. Where she is a mother, it is the son,

III. Where she is a daughter, it is the father,

IV. Where she is a sister, and it is the brother, and so on.

Where she has no close male relations on whom she can depend, maintenance of such a

woman is the responsibility of the society as a whole and the state I n particular. She may be

given welfare benefit or a job to earn her living, and whatever money she will be hers.154

c. She is not responsible for the maintenance of anybody else beside herself. So in the

hardest situation, her financial responsibility is limited, that of the man is unlimited.155

Now we have a male heir, on one side, burdened with all kinds of financial responsibilities

and liabilities. We have, on the other side, a female heir with no financial responsibilities at

all or at most very little of it. In between we have some properties and aid to redistribute by

way of inheritance. If we deprive the female completely, it would be unjust to her because

she is related to the deceased. Likewise if she is given a share equal to the brother brother’s it

would be unjust to him. So instead, of doing injustice to either side, Islam gives the male

brother a larger portion of the inherited property to help him to meet his family needs and

social responsibilities.156

d. She is entitled to the fourths of her father’s estate. As a wife she is entitled to demand

of her prospective husband a suitable dower that will be her own. She is entitled to

complete provision and total maintenance of by the husband and family expenses. She

is free to retain, after marriage to all of her belongings.

154
A. Zakariyyah, ‘The True Position of Women’s Inheritance under the Islamic Law’, Islamic Education Trust,
Minna, (Unpublished paper, 2006)
155
J. Rafidah, ‘The Issues on Inheritance for Women’ (September 2005), available at
<www.bismikallahuma.org> accessed on 15/06/2016
156
Sorowar, “Muslim Inheritance Law: Is it Injustice to women?” (2008) available at <www.shodalap.com>
accessed 15/06/16
In the words of Dr. Hussain, ‘those who ask the question why daughters only get half the

share of the son need to understand the whole system of Islamic law, of which inheritance

law is only a part, to appreciate this difference’.157 Dr Ishak Aliyu stated that Allah gave to a

woman half of what is given to man of her class. He also neither deprived her, as did the pre–

Islamic people nor put her on the same level with man as did some divergent from the

required natural disposition and rationality.158 Then Allah says: ‘Ye know not whether your

parents or your children are nearest to you in benefit. These are settled portions ordained by

Allah: and Allah is All-knowing, All wise.159

In other verse He says:

“Those are limits set by Allah: those who obey Allah and His Messenger

will be admitted to Gardens with rivers flowing beneath, to abide therein

(for ever) and that will be the supreme achievement. But those disobey and

His Messenger and transgress His Limits will be admitted to a fire, to abide

therein and they shall have a humiliating punishment.”160

In the third place He says: “… thus doth Allah make clear to you (His law), lest ye err, and

Allah Hath Knowledge of all things.”161

In the above verses, Allah explains that: He apportioned inheritance in accordance with His

knowledge and what necessitates of His wisdom. That is an order from Him which is

obligatory and which is not lawful for any believer to either go beyond or to diminish. Allah

also promises who obeys Him, with regard to His divine ordinance and be guided by the

same principle in what he limits and ordains, paradise with those whom Allah has shown

157
Hussain, The Islamic Law of Succession ,p 25
158
Ishak Aliyu, Inheritance in Islamic Law, p vi
159
See Surah 4: 11, The Holy Qur-an, English Translation of the Meanings and Commentary, (revised and
edited by The Presidency of Islamic Researches, Ifta, Call and Guidance), King Fahd Holy Quran Printing
Complex, Madinah Al-Munawarah, The Kingdom of Saudi Arabia, 1410 AH (1999), p 210
160
Surah 4: 12-14, Ibid, p. 212
161
Surah 4:176, p. 274
mercy and favour of the prophets and the saints and the martyrs and the righteous. He also

threatens those who act contrary and transgress His limits that He will make them enter

hellfire.162

In addition, Abdul Salam H. A. explained that the value of equality or better still equity is not

to be mistaken for or confused with identicalness or stereotype. Islam teaches that in the sight

of God, all men are equal but they are not necessarily identical. 163 Hammudah Abdallah

submits in this regard thus: “one basic element in the value system of Islam is the principles

of equalities but those are differences of abilities, potentials, ambitions, and so on. Yet, none

of this difference can by itself establish a status of superiority of one man or race to

another.164the only distinction from the above statement is that which God recognizes is the

distinction in piety and the only criterion which God applies is the criterion of goodness and

spiritual; excellence.165 In the Quran, God says:

O mankind, we have created you from a single (pair) of a female and a

male, and have made you into nations and tribes that you may know each

other. Verily the most honoured of you in the sight of God is the most

righteous.166

It is interesting to note that in consideration of women’s position, their deferred dower forms

part of what should be removed from the entire estate before distribution.167

According to ‘Abd ar-Rahman I. Doi;168 the laws of inheritance of Islam distributes wealth in

algebraic proportions among the heirs, thus reducing capital’s drive to monopoly and the

162
Dr Ishak Aliyu, Inheritance in Islamic Law, p vii
163
Abdul Salam H A, “Achieving Equitable Wealth Distribution: Exposing The Rule Of Mirath As A
Redistributive Agent”. p 60
164
Hammudah Abdallah, Islam in Focus, U.S.A., Islamic Teaching Centre, N.D. p 35
165
Abdul Salam H. A., “Achieving Equitable Wealth Distribution: Exposing The Rule Of Mirath As A
Redistributive Agent”. Ibid
166
Q49 verse 14
167
Abdul Salam H.A., Ibid
168
A.I. Doi, Shari`ah Islamic Law, (Ta-ha Publishers Ltd London, Second Revised Edition2008), p 411
economic injustices which result. He further stated that their rediscovery and re-application

by the Muslims will be of the highest importance. For example as husband, son, father etc,

the male is charged with the material responsibility of the female as contained in, among

others, the following quotations from the Qur’an:

(a) Qur’an 4:33 –“men shall take care of women with the bounties which Allah has bestowed

more abundantly on the former than the later, and with what they spend of their wealth”

(b) Qur’an 65:6:“Lodge them (your wives) where you live within your capacity and do not

hurt them to incapacitate them. And if they are pregnant, spend on them until they deliver

their burden. Then if they suckle for you, give them the recompense…”

(c) Q2:233: “And mothers shall give suck to their children… And the man to whom the

child belongs shall be responsible for their (mothers) food and clothing in a befitting

manner”169”

However, some contemporary Muslim writers who opine that Islamic law of inheritance is

discriminatory against women have argued that the men’s greater economic responsibility in

the family in Islam used by conservative Muslim scholars to justify men’s double share of

inheritance is no longer tenable in contemporary world. Their argument is that in the socio-

economic circumstances of the present day, many women are no longer

financially/economically dependent on their husbands and male relations because women in

many families around the world today are responsible for the entire household expenses of

their families. Therefore, the economic responsibility of men to maintain women as stated in

Quran 4:34 as justification for double share of inheritance for men is no longer tenable. 170

169
Surah Baqarah ayah 233, p 102
170
See Jaiyeola M.B., “A Comparative Study Of Women’s Rights Of Inheritance In Nigeria Under Islamic Law
And Some Customary Laws”, (PHD Thesis, Faculty Of Law, University Of Ilorin, Ilorin, Nigeria, 2011) P 148-
149
It was suggested that in this connection, in situations where men do not discharge their

economic responsibility and women contribute equally to family income, women should get

an equal share of inheritance as men.171

They have therefore advocated that Islamic law should be reformed so that Muslim women

and men will have equal rights in inheritance and other matters to conform to the standard of

the international human rights document like (CEDAW). 172But it is notable that the failure of

one set of people in a particular jurisdiction cannot serve as a basis for the amendment of the

Islamic rules established for succession.

Moreover, despite the criticisms of the unequal shares of inheritance to men and women

under Islamic Law by some liberal Muslim writers/scholars, many Muslims even women

believe that the law is the command of Allah and man can only obey it.173

Yusufari174 emphasised this belief when he stated with reference to Quran Chapter 33 verse

36 thus:-‘Believing men and women do not have the right to question (nor have they any

choice on) Allah’s and His Apostle’s decrees’. Quran Chapter 33 Verse 36 says, ‘It is not

fitting for a Believer, man or woman, when a matter has been decided by God and His

Apostle, To have any option about their decision; if any one disobeys God and His Apostle,

he is indeed on a clearly wrong path’.

It is thus not gender discrimination but gender equity which pairs legal rights with legal

responsibilities. Since laws are made based on what is normal and most usual, exceptions to

171
Ibid
172
Ibid Convention on the Elimination of all Forms of Discrimination Against Women
173
Jaiyeola M.B., “A Comparative Study Of Women’s Rights Of Inheritance In Nigeria Under Islamic Law And
Some Customary Laws”, (PHD Thesis, Faculty Of Law, University Of Ilorin, Ilorin, Nigeria, 2011) P 148-149
174
Yusufari Lawan, ‘Shari’a Based Reservations And The Convention on the Elimination of All Forms of
Discrimination Against, Women (CEDAW): A Tale of Two Worlds’, University of Maiduguri Law Journal
(2004) Vol. 7, p 136
the rule, where the female discharges the legal responsibilities of the male cannot be made the

basis of the norm.

1.7.0: CONCLUSION

It is evident from our discussion of the verses of the Holy Quran on inheritance that Islamic

law regards women in their capacities as wives and daughters who were denied inheritance

during the pre- Islamic period as Quranic or primary heirs 175 who always have right of

inheritance. As Quranic or primary heirs, wives and daughters of a deceased man in the

context of Islamic law are amongst the proper relatives upon whom the estates of the

deceased should first devolve by operation of law. In addition specific shares of a deceased’s

estates are allotted to them in the Holy Quran.

Consequently, the fact that the Holy Quran makes wives and daughters primary heirs and

clearly specifies their shares mean that Islamic law has safeguarded their absolute rights

of inheritance as their rights as Quranic or primary heirs are indefeasible. The Islamic law

recognizes four types of relationship in determining the legal heirs under which woman’s

right is included. These types include the following: relation by blood, relation by affinity

(through marriage), relation through slavery and relation through religious fraternity which

manifested in the establishment and operation of the Baytul-mal (Islamic treasury) in an

Islamic state. Any woman that falls within that falls within any of the four types of

relationship has the inalienable right to take her own share from the estate of the deceased.

It is interesting to note that the heirs whose portions have been fixed in the Quran, women or

females take the lion share. Eight out of twelve heirs are females while male four are males.

175
Gurin M A, An Introduction to Islamic Law Testate/Intestate, p 58.: he says Quranic heirs consist of
certain close relations of the deceased to whom a specific share is allowed in the Quran. These include
four male and eight female sub-classes. The male sharers are: The husband, the father, true grandfather how
high so ever and the uterine brother. The female sharers are: the wife, the mother, the true grandmother,
the daughter, the son’s daughter, how low so ever, the germane sister i.e. (full sister), and the uterine sister (of
the same mother but not father).
The female are the wife, daughter, and son’s daughter however so low and full sister, others

are consanguine sister, uterine sister, mother and true grandmother. 176Therefore women’

rights to inheritance in the Shari’ah are seen as fundamental human rights to property and

cannot be taken with levity.

176
Abdul Salam H. A. “Achieving Equitable Wealth Distribution: Exposing The Rule Of Mirath As A
Redistributive Agent” p 63