Where there’s a will…Legator may not get their way.


By Abdusalam Hussein

islamic inheritance-nepjournal

The Kadhi’s court at Nairobi ruled on April 2015 that Abdullahi is entitled to a large share of his mother’s inheritance, overturning a will that left more than three quarters of her property to her adopted daughter. The court agreed with the argument of the petitioner the deceased had an unreasonable, capricious and harsh mother, who was wrong in never forgiving her only biological son for a misunderstanding that often arises out of parent-children relationship.

This ruling has huge implications on our worldly view to inheritance and disinheritance in regards to wills.

What is the purpose of the last will and testament? Legacies often express a person’s wishes and intentions regarding the disposition of his or her properties after his death but it can also be used for other purposes and for incidental matters, such as: the appointment of persons to administer the estate of the testator (personal representatives/executors), the appointment of guardians for the minors,   the appointment of trustees to administer trusts set up under will, making directions as to payment of liabilities among others.

In this, particular, case son wins 75 % of the entire deceased estate after a legal battle over the will against his adopted sister.

Wills can disclose shocking insights into the unseen world of the maker, now decently and safely buried away from repercussion. Prominent Scholars have always recognized wills as charged microcosms of family dysfunction.   The author of the will may want to have a sense of control of the scene around his death with an effect to organize the next chapter of family drama or to rewrite the past. The division of an estate after death comes with many emotions. The slightest difference can result in hurt feeling, family disunity, recrimination and disorganization in the family order as a result of this with relatives realizing real or imagined earlier promises made before the death were words written in the wind.

Money, jewelry and other properties may take a new weight and resonance, coming to represent all dynamics of love and power within a family, even an items that has a little or no value can take on an enormous importance. The fake pearls a mum once wore can become not a sign of union but a fracture and rapture.

The new insightful ruling from the Kadhi’s court has been corroborated by a recent US court of appeal decision in Ilot v. Mitson (2015) EWCA Civ 797 delivered on July 2015, where the court overturned a will of a mother, who had left her money to three animal charities, and awarded her only daughter a large share of her mother’s inheritance. Both rulings means that our final wishes may now be subject of annulment.

One might ask that while Qanun is positive law the sharia is conterminous with natural law, where is distinction?

A binary jurisprudential distinction between natural law and positive law permeates Western jurisprudence. Positive law, made by human beings for human beings, is transient, rooted in history, modifiable, and even subject to repeal. By contrast, natural law, given by nature or God, is timeless, a historical, unchanging, and eternal. This distinction—found in the works of both Aristotle217 and Cicero218—has lost meaning in secular legal systems that have for the most part discarded notions of natural law and are presumptively founded on positive law

A will from Islamic law’s point of view is a divine Institution since it’s exercise is regulated by Holy Qur’an . It offers the testator the means of correcting to a certain extent the law of succession and of enabling some of those relatives who are excluded from inheritance to obtain a share in his/her properties and of recognizing the service rendered to him/her by a stranger or the devolution to him in his last moment. At the same time power should not be exercised to injure the lawful heirs.

The new ruling also introduces a right of a children raised under kafala system. Although they don’t automatically gain inheritance right from their guardians, it suggests that they may inherit guardians by will before distribution of the net estate of the deceased to his/her legal heirs. A substance of the will, after all, shall have two main limitations to testator’s right to make a will.

The first relates to the nature of the beneficiaries that are allowed to benefit from will; one may not bequeath his estate to his legal heirs. The second relates to the quantum of the estate that one can bequeath in a will to those persons who would not otherwise be entitled to inherit him/her intestacy; One may not bequeath more than one third of his estate, unless rendered valid by free consent of heirs if the intestate beneficiaries don’t approve the ultra vires excess, the testate beneficiaries shall take their allotment pro rata.

The verdict rendered by the Kadhi’s Court reveals that indeed our courts can anchor into unprecedented settlement towards the growth of jurisprudence. There’s an urgent need towards the documentation of decisions from Kadhis’ courts.

The court ruling is an example of wide trend of paradigm shift in regulating what healthy thinking and rational decision-making look like in society and persuasive decision for courts to emulate. If Abdullahi mother never let go her anger at her only child, the court is effectively decreeing that she had no right to extend her feelings beyond her death.

Abdusalam is a lawyer with a dual degrees in laws. He can be reached at: abdusalam.barrister@gmail.com




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