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“Learn the Qur‟an and teach it to the people, acquire the knowledge of faraid (laws of estate distribution) and teach it to the people, for I am a person who has to depart this world and the knowledge will be taken away and turmoil will appear to such an extent that two people will not agree in regard to a case of estate distribution and find none who would decide between them.”
Ahmad Razimi (2016) has highlighted the property under faraid which is land, building, jewelry, insurance and cash, and animal livestock. Faraid are directly based on al-Qur‟an, sunnah and the consensus of prophet Muhammad companion. The authority about inheritance in faraid can be seen in surah an-nisa verse 11,12 and 176. Al-Qur‟an had mentioned:
“Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children - you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah. Indeed, Allah is ever Knowing and Wise.”(a-Nisa‟, 11)
In surah al-Nisa‟, 12:
“And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah, and Allah is Knowing and Forbearing.” (an-nisa4:12)
Al-Qur‟an has also mentioned:
“They request from you a [legal] ruling. Say, "Allah gives you a ruling concerning one having neither descendants nor ascendants [as heirs]." If a man dies, leaving no child but [only] a sister, she will have half of what he left. And he inherits from her if she [dies and] has no child. But if there are two sisters [or more], they will have two- thirds of what he left. If there are both brothers and sisters, the male will have the share of two females. Allah makes clear to you [His law], lest you go astray. And Allah is Knowing of all things.” (a-Nisa‟, 176)
From the verses above, we can conclude that the law giver has directly mentioned the portion for the beneficiary are entitle to get from the asset. Kamarudin and Hisyam (2018) from the verse concur that legal heirs can be divided into group which is asbah al-furud heir and Asabah heirs. Heirs in Ashab al-Furud are legal heirs who are entitled by the law giver based on those verses which are their spouse either husband or wife, parents and daughter. While Asabah heirs are son or any other male heirs (Abd Wahab et. al 2017; Abdullah, Mohd Radzi, Johari, & Dastgir, 2014; Nik Hussain &
Abdul Razak, 2014). Table 1 explains the general Ashab al-Furud in faraid.
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Table 1: Ashab Al-Furud heirs
Heirs Portion Condition(s)
Husband 1/2 Deceased has no children
1/4 Deceased has children
Wife 1/4 Deceased has no children
1/8 Deceased has children
Mother 1/6 Deceased has children
or
Deceased has two or more brothers or sisters (full, consanguine or uterine)
1/3 Deceased has no children
or
Deceased only has one brother or sister
Father 1/6 Deceased has son(s) (one or more)
1/6 + Asabah (balance) Deceased only has daughter(s) (one or more)
Daughter 1/2 Deceased only has one daughter and
no son.
2/3 Deceased only has two or more
daughters and no son.
Asabah bi al-ghayr. Ratio 1:2 (Daughter(s) =1, Son(s) = 2)
Deceased has son(s) (together with daughter(s).
Sources: Ismail (2013), Mahad Musa & Hasbullah, (2015) dan Wan Harun (2013)
Prophet Muhammad SAW had stressed out about legalization of faraid law:
“Tawus reported on the authority of his father Ibn Abbas (Allah be pleased with them) narrating that Allah's Messenger (may peace be upon him) said: Distribute the property amongst Ahl al-Fara'id, according to the Book of Allah, and what is left out of them goes to the nearest male heir.” (al-Bukhari)
“Ibn Abbas (Allah be pleased with them) reported Allah's Messenger (may peace be upon him) as saying: Give the shares to those who are entitled to them, and what remains over goes to the nearest male heir.” (al-Bukhari)
DISTRIBUTION OF WEALTH IN MALAYSIA
In this section, the process of applying the distribution of the deceased‟s wealth is discussed involving the jurisdiction involved (also institutions involved in resolving the distribution) according to the wealth value as well as the process (step by step) in the application of the distribution of the wealth.
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Table 2: Jurisdiction involved according to wealth value of the deceased
Type Wealth value Jurisdiction involved
Little inheritence - Movable property (MP) only - Value less than RM600,000 - Without will
- Amanah Raya Berhad (ARB) - Akta Perbadanan ARB 1995 Small inheritence - Immovable property (IP) only
- Value less than RM2 million - MP + IP < RM2 million - Without will
- Pentadbir Tanah/Daerah
- Akta (Pembahagian) Pusaka Kecil 1955.
Large inheritence - Movable property with value more than RM600,000
- IP more than RM2 million - IP + MP more than RM2 million - With will or without will
- High Court
- Akta Probate dan Pentadbiran 1959 - Kaedah-Kaedah Mahkamah Tinggi
1980
Based on Table 2, the wealth value and jurisdiction involved are presented. For little inheritence which consists of movable property that value less than RM600,000, Amanah Raya Berhad is responsible in the management of distribution of the wealth. As for small inheritence which consists of immovable property only or both movable and immovable property that value less than RM2 million, the application of the distribution of the deceased wealth can be made in Pejabat Tanah/Daerah where the wealth belongs to. For large inheritence that consists of movable property with value more than RM600,000 or immovable property more than RM2 million or immovable property and movable property more than RM2 million, the High Court will hear the application of this large amount of wealth. Figure 1 shows the flow chart of the application of distribution of wealth of the deceased in Pejabat Tanah/Daerah.
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Figure 1: Flow chart of application in Pejabat Tanah/Daerah
PROBLEMS IN IMPLEMENTATION OF FARAID
Faraid is recognized as an effective tool of estates allocation but its inefficient implementation has created a negative perspective on this system. In Malaysia, there are various challenges and constraints in the allocation of the estate using the faraid system. From previous studies, it can be concluded that the efficiency of estates allocation using faraid is hindered by several factors that can be categorized into two, that are faraid administration and understanding of faraid among the Muslim.
Applicants fill in and file Form A at Pejabat Tanah/Daerah
Application processed by Pejabat Tanah/Daerah - Form B is filled and sent to the High Court Registrar
Investigation conducted by Placement Officer / Penghulu etc.
Notice of hearing to heirs - Form D.
Appeal to the High Court (Form K2, K1, K3).
Gathering of information
Appeal decision order from Pejabat Tanah/Daerah
Objections or caveats - Form N.
Order of distribution - Form E, F.
Appeal period (14 days) from the date of the order Faraid certificate obtained from Syariah Court.
Confirmation from the High Court Center Registration - Form C.
Trial by Administrative Officers
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Faraid administration in Malaysia faces difficult challenges as it relates to legal issues.
Conflicting and inter-twinning constitutional issues in the legal system which is the legacy of British colonial has made it impossible to set up a unique Syariah-compliant system that can enable faraid law to be practiced efficiently in Malaysia (Noordin, et al., 2012 ; Buang, 2008). Conflicts of law occur as there is no special statute relating to the inheritance of Muslims (Wan Harun, 2009). Legal practitioners only refer to faraid books whose implementation varies according to different Mazhab.
For example, there are differences in opinion among the Mazhab in some of the inheritance issues such as inheritance by the 'Rad' method, inheritance by the 'Dhawi al-Arham' heirs, Muqasamah distribution methods and so on (Wan Harun, 2009; Musa, 2017).
In addition, conflict exist between faraid law and the Land Act (Group Placement Area) 1960 which provides for Land Plans such as FELDA, FELCRA and Rancangan Tanah Pinggir only to be named for two owners only. Thus, division of land using faraid will create conflicts among the heirs if the takharruj approach (legitimate heirs withdraw from the inheritance right) is not choose as a solution.
Inefficient administrative processes also contribute to the inefficient flow of claim. According to Mujani, et al. (2011), complaints about the complex and time consuming in estate administration process closely related to the existence of various jurisdictions in the process of distribution of property in Malaysia that became cause of confusion to the public. This confusion occurs because each authorities having different standard and procedures (Abd Aziz and Nordin, 2015; Noordin, et al., 2013). Lack of information and confusion regarding various jurisdiction of administration process has contributed to lengthy time, increased cost and delay the process of approval (Mujani, et al., 2011;
Abdul Rashid and Yaakub, 2010; Ahmad Razimi, 2016; Noordin, et al., 2012). According to Abdul Rahman (2008), on the heirs‟ side, this confusion contributes to the high degree of ignorance of procedures to claim inheritance.
Previous studies identified some weaknesses at the administrative level itself. Among them issuance of the Certificate of Faraid is not properly implemented as they release without investigation or have clear procedure for inspection on beneficiaries (Mujani, et al., 2011; Abdul Rashid and Yaakub, 2010). As a result, there are high potential of conflicts will happen between siblings and disrupted the relationship between family members because of disputes (Buang, 2008).
The delay in faraid settlement in Malaysia is also contributed by lack of knowledge and understanding of the system. Low level of awareness on the faraid implementation process among the Muslim has caused the administrator to deal with incomplete claims of information (lists of heirs and numbers and types of property), lack of cooperation from heirs (absence of trial) and failing to show the evidence of death or death are not registered. This situation causes the settlement of the inheritance to be delayed for a longer time (Abdul Rashid and Yaakub, 2010; Alma‟amun, 2010; Md Azmi and Sabit Mohammad, 2011; Jaafar, 2016).
Difficulty in solving allocation of estates was contributed by the misrepresentation of the heirs. The lack of awareness on the need for immediate settlement of the heritage, the negative assumption of the community towards the beginner of the claim as a greedy person and the responsibility on the hand of the eldest are among the misconceptions in Muslim societies in Malaysia (Mujani, et al., 2011; Ahmad Razimi, 2016; Abdul Rashid and Yaakub, 2010). This misconception creates a layered claim when death occurs among the heirs and this condition is further complicated if the inheritance is not completed for generations.
Beside of that, heir who deliberately refuses to make an inheritance settlement because they assumed that faraid will break the property to a small portion (Mujani, et al. 2011; Abdul Rashid and Yaakub, 2010; Abd Wahab, et al., 2017) or property concerns will be transferred to the other heirs.
Therefore, they choose to retain property on the deceased's name (Abd Wahab, et al., 2017). The inherent attitudes which do not make such claims have contributed to the problem of layered claims that are difficult to resolve.
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Faraid is an estate allocation solution that comes directly from Allah SWT. Hence Muslims need to believe in the effectiveness of faraid law in resolving fair and just inheritance. However, human weaknesses are either as an administrator or heirs as well as the laws that are formulated as a source of ineffective management of inheritance among Muslims in Malaysia. The previous studies presented some recommendations such as creating a Court of Inheritance, re-enacting the Act of Faraid (Awang, 2008), making faraid knowledge and inheritance management as a formal education in secondary school and higher education level (Noordin, et al., 2013; Alma‟amun, 2010; Kamarudin and Abdullah, 2016), and developed the Faraid calculator for public use (Noordin, et al., 2013).
CONCLUSION
Faraid is an inheritance system which applied by all Muslims in Islamic countries. Evidences on the legitimacy of faraid are stated clearly in theal-Qur‟an. Faraid system should have managed to resolve the distribution of the deceased‟s wealth. However, there exist some problems and challenges in implementing it especially within the Malaysian law. It is hoped that the authority should take proactive action in the implementation of faraid system in Malaysia, hence the intergenerational wealth management will run smoothly.
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