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I have a question about the inheritance law. I am totally convinced in the point of view of Javed Ahmed Ghamidi. However, I have developed a confusion regarding his view in this regard which follows:

Who receives the balance 5/12 of the inheritance in the following and other cases in which, after the distribution, there remains surplus?

In all these cases and many other combinations there is a surplus. What will happen to this surplus? Who will inherit it? To deal with this problem the law of "Usbah" comes to effect. This law is to regulate the unclaimed shares, which have no corresponding people to receive them. Of course if the Quran was clear with no errors, there would have been no need for all these “sciences” and amendments.

The law of Usbah is based on the following Hadith.

Sahih Bukhari 8. 80. 724

Narrated Ibn 'Abbas:

The Prophet said, "Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased."

According to this law, a man who dies and is survived by only his daughter with no other close male relative except a second cousin, his daughter will receive half of his inheritance and the other half will go to the man’s second cousin. This seems quite unfair to the daughter, but it would be especially unfair if the man had a needy aunt or a female first cousin that would receive nothing because they are of the wrong gender.

Now suppose that a man has no other heir except his wife and a distant male relative. The wife will receive 1/4 and the distant male relative gets the balance, i.e. three times the inheritance that his widowed wife gets. Is this justice?

What if the deceased has no male relative at all? What will happen to the rest of his inheritance? What happens in the reverse case when a wife has no relatives? The husband will receive half of her inheritance; who will get the other half?

Note that in the Quran there is no priority for the distribution of the inheritance. In nowhere it says “first give to these and from what is left, give to those”. Even if we had to reinterpret these laws and prioritize them in the order that they are mentioned, it still does not work because in that case, each subsequent inheritor will have his or her share shrunk. Also in most cases the total inheritance will never be used up. (http://faithfreedom.org/Articles/sina/inheritance.htm)

My questions relate to problems in inheritance laws. These questions are as follows:

I live with my family consisting of my mother, unmarried sister, my wife and three sons aged 7,5,3 yrs respectively. My father died in 1985 leaving behind 75 acres of agricultural land. I manage all this land. I am also working with Bank Alfalah Ltd as branch manager. We share our income for running my home and other issues. I am worried that my mother aged 77 would not be able to manage her land, my sister is also cardiac and is not capable to manage her share of the land. I also bear all my family expenses.

Now I wish to share the income generated from all recourses of my family after deducting expenses. I want to be guided by Islam in this regard.

I wish to establish a special trust for the benefit of my children. I intend to make a will with the conditions that all the property left over by me after my death shall not be sold or inherited but the rental income from the properties be distributed between my sons and daughters in the ratio of 2:1. According to this will, the daughters can benefit during their lifetime only and the offspring of my sons will be the only beneficiaries after my sons’ death. Finally in the event there are no more heirs from the family, the whole property be given for public cause. Can such a will be made? Is this proposal in accordance with the Shari‘ah? Please advise.

Dear Ghamidi Sb., AOA,

I have a question. Zaid dies, had no children. His wife had died earlier. He had 4 brothers and 3 sisters - out of which 2 brothers and 1 sister died before him. Question is: will the kids of these 2 brothers and 1 sister get a share in the inheritance? Is it correct that according to Hanafi Shariya, there is no share for these kids? Pakistan family ordinance 1961 mentions yateem grandchildren but does not mention in case of brothers/sisters. Text follows for the ordinance. Succession act 1925 section 44, 45 list a case for brothers, sisters but not sure if it applies to Muslims?

http://punjablaws.gov.pk/laws/777a.html
Family Law:

1. Short title, extent, application and commencement.– (1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961. (2) It extends to the whole of [2][the Punjab], and applies to all Muslim citizens of Pakistan, wherever they may be. ..

4. Succession.– In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

http://sja.gos.pk/assets/BareActs/SUCCESSIONACT 1925.pdf

PART V Intestate Succession CHAPTER I PRELIMINARY 29. Application of
Part.___

(1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, 1 [Muslim], Buddhist,
Sikh or Jaina. (2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of 2
[Pakistan] in all cases of intestacy. 1Sub. by F.A.O., 1975, Art. 2 and Table, for “Muhammadan”. 2 Subs. by the Central Laws (Statute Reform)
Ordinance, 1960 (21

27. Persons held for purpose of succession to be similarly related to deceased. For the purpose of succession, there is no distinction___ (a) between those who are related to a person deceased through his father, and those who are related to him through his mother; or

44. Where intestate’s father dead and his mother, a brother or sister, and children of any deceased brother or sister, living. If the intestate’s father is
dead but the intestate’s mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, shall be
entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate' s death. Illustration
A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them. 45. Where intestate’s father is dead and his mother and children of any deceased brother or sister living. If theintestate’s father is dead, but the intestate’s mother is living,and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.

Illustration
A, the intestate, leaves no brother or sister, but leaves his mother and one child of a deceased sister, Mary, and two children of a deceased brother, George. The mother takes one third, the child of Mary takes one- third, and the children of George divide the remaining one third equally between them.