Q. My wife’s parents died recently. They left behind six daughters and one son, as well as one grandson whose father had died before them. Some of their daughters also have children of their own. Could you please explain how their property is to be divided, and whether any of their grandchildren, particularly the one who lost his father, has a share of their property? If so, how much?
M.A.M. Qaisar
A. It is a rule of the Islamic law of inheritance that grandchildren inherit only when the deceased has no children of his own surviving him. This means that while all six daughters and the one surviving son inherit, none of their children does. However, the grandson whose father had died is a special case. The majority of scholars are of the view that he does not inherit by right because there are heirs who are closer than him to the deceased. They recommend grandparents to leave such grandchildren a share by will. It is often the case, however, that people omit to write a will, or they do not know the rules concerning their inheritance. This often leaves such grandchildren in a difficult position that does not seem to fit the keen sense of fairness Islam promotes.
A different view advanced by some eminent scholars, notably Imam Ibn Hazm, attempts to redress this situation. This view is based on what is known as “the compulsory will.” It considers that when grandparents fail to leave something to such grandchildren, whose father or mother had already died, then the judge will operate the principle of the compulsory will. It means that it was obligatory that the grandparent had to leave the grandchild a share, but failed to do so. His failure does not remove the obligation. Hence, a will is deemed to exist in favor of the grandchildren, giving them the lesser of 1) one-third of the deceased’s property, or 2) their deceased parent’s share had he survived his parent.
In the case we are looking at, if we are to take the first view, allowing no share for the grandson unless a will was made in his favor, the property would be divided between the one son and the six surviving daughters. It should be divided into eight shares, giving one share to each of the six daughters and two shares to the son. On the other hand, if we are to apply the principle of the compulsory will, which is more in line with the objectives and philosophy of Islamic law, then the property should be divided into ten equal shares, giving one share to each daughters, two shares to the one surviving son and two shares to the grandson. It should be added that a number of Muslim countries have included this principle of the compulsory will into their family laws. The reader should check whether it is applied in his own country.
