A Brief Overview Of Islamic Inheritance From A South African Law Perspective

Source: Abdul Buckus buckusattorneys@gmail.com

Succession, colloquially referred to as inheriting, is the process whereby the heirs of a deceased person succeed to the assets which the deceased left behind at the time of death. Assets in this instance refer to the residue after all liabilities and debts of the deceased have been settled.

INTESTATE SUCCESSION

The provisions of the South African, Intestate Succession Act, are applied where the deceased entirely or partially died intestate. This means that the deceased did not attest to a valid last will and testament before his or her demise.

Intestate succession will determine the heirs to a deceased estate in the following circumstances:

– When the deceased failed to attest to a valid last will and testament, or

– Where it is impossible to carry out the wishes of the deceased because the beneficiaries, for example, predecease the testator, or do not wish to inherit.

A person can die completely intestate or only partly intestate. The latter would be where, for example, a testator specially bequeaths one portion of his estate in a valid last will and testament, but omits to deal with the rest of his or her assets. In this instance the portion that has been bequeathed by will, shall devolve testate as set out therein, while the rest of the estate will devolve according to the rules of intestate succession.

Where spouses were married in community of property the estate will first be divided in half. The surviving spouse will receive half by virtue of the marriage in community of property and the other half will devolve in terms of the Intestate Succession Act.

According to prevailing South African case law, persons married in terms of Muslim rites should be regarded as spouses for purposes of intestate succession and are entitled to inherit from their deceased partner in terms of the Intestate Succession Act, despite the fact that their “marriage” is not recognised as a valid marriage in terms of our current law.

In Daniels v Campbell NO & Others 2004 (5) SA 331 (CC) the court recognised the wife to a monogamous Muslim marriage as a “spouse” for purposes of intestate succession and the Maintenance of Surviving Spouse Act. In Hassam v Jacobs N.O. & others (2008) JOL 22098 (C) a case dealing with polygamous Muslim marriages the court found no justification for excluding the widows of polygamous Muslim marriages from the provisions of the Maintenance of the Surviving Spouses Act and the Intestate Succession Act. The court held that the continued exclusion of the widows of polygamous Muslim marriages from the benefits of the Acts would be unfairly discriminatory against them and be in conflict with the provisions of section 9 of the Constitution. Marriages in terms of Muslim rites are generally regarded as being out of community of property.

If a Muslim passes on without having left a valid will and testament, the provisions of the Intestate Succession Act would find application and not Islamic Law. Neither the surviving spouse, descendants nor ascendants, can compel the implementation of succession in terms of Islamic Law.

TESTATE SUCCESSION:

South African law allows for the freedom of testation, which means that where a deceased had attested to a valid last will and testament, setting out how his or her estate must devolve the stipulations therein are given effect to after his or her demise. A person can also nominate the person or persons, known as executors, who should administer the estate after their demise.

Where the deceased was married, in community of property, he or she can only dispose of his or her half share of the joint estate, in a will.

APPLICATION OF ISLAMIC LAWS OF SUCCESSION:

There is no intestate succession in Islamic law, every Muslim dies testate, as the Holy Quran sets out how the deceased’s estate should be distributed and administered. Since South African law embraces freedom of testation, it is imperative that every major Muslim, execute a valid will in accordance with Islamic law. It is also vital that the will is executed in compliance with the requirements of South African Law, and updated or amended with change in circumstance.

POINTS TO NOTE:

If the deceased was married in community of property, the joint estate is frozen upon the demise of one of the spouses. This situation often creates hardship for the surviving spouse, especially where the bank accounts were all in the name of the joint estate or in the name of the deceased, as no person may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets until appointment by the Master of the High Court.

Reporting and finalising a deceased estate in South Africa can be a lengthy and complex process, during which time most if not all of the assets will be under supervision and control of the master’s representative.

South African law also dictates fees and charges that are levied to wind up a deceased estate, which should be catered for, in order to avoid delay and financial difficulty to those left behind.

We are able to not only finalise for you, a will that complies with the requirements of both Islamic, and South African law, but also advise on estate planning and financial security for the period that a deceased estate is being administered.


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