A Wasatiyah Approach to Estate Planning: Maqasid and Ethics of Planned Giving in Islam (Edition no. 8/April 2016)

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islamic willBy Ustaz Irwan Hadi Mohd Shuhaimy

Introduction

In discussing the topic of wealth planning in Islam, it is important that one takes into consideration its fundamental principles and spirit of estate and financial planning. This is important so that in engaging this topic of planned giving, we remain cognizant of the fundamental principles which act as the ethical parameters within which financial planning in Islam operates and is guided by.

Ever too often, when it comes to estate planning, Muslims would be quick to look to the detailed apportionment of faraidh without much appreciation and understanding of its spirit and the objectives (maqasid) which it seeks to achieve.

This oversight of the objectives and spirit is one which would lead to several issues such as unethical execution of estate distribution, causing much distress and even hardship for the dependents of the deceased.

It could also lead to the inability of one to consider other instruments of planned giving within the corpus of Islamic law beyond faraidh or even worse, it could lead to the perception of Islamic law being unjust, rigid, irreconcilable with the realities of contemporary life and differing socio-economic context and economic roles assumed by both genders in contemporary family life.

Maqasid (higher objectives) and faraidh[1] verses

The faraidh or Islamic law of inheritance is one of the more if not most elaborated laws revealed to Prophet Muhammad (pbuh). This is especially unique considering that the usual Qur’anic methodology of legislating laws is generic with its specifics explained by the second source of Islamic law which is the Prophetic sayings or tradition.

While the specific apportionment of inheritance is spelled out starting from the 11th verse of the fourth chapter of the Qur’an, the spirit or ethics of Islamic wealth distribution can be found starting from verse 7 of the same chapter, which says:

“For men there is a share in what the parents and the nearest of kin have left. And for women there is a share in what the parents and the nearest of kin have left, be it small or large, a determined share.” (The Qur’an, 4:7)

812201455856PMoffshore-estate-planningObjective 1: Securing the welfare of immediate dependents and ensuring disposition of wealth does not lead to causing hardship on them

To better understand the spirit and objectives of any Qur’anic verses and laws which were revealed to Prophet Muhammad, we would need to refer to the reason and context of revelation or what is known in the Qur’anic sciences as sabab al-nuzul. In the case of the verses of inheritance, it was narrated that a companion of the Prophet by the name of Aus bin Tsabit Al-Ansari passed on leaving two cousins, a wife and three daughters.

According to traditional Arabian societal norms of the time, only men were entitled to inherit as they were the defenders of the tribe and family and are the ones who bring food to the table to feed the family.

Premised on this norm, the cousins of the deceased had wanted to lay claim on his entire estate. However, they were met with resistance from the wife of the deceased and she reported this matter to the Prophet to seek redress.

Following this case which was brought forth to the Prophet, the verses relating to Islamic inheritance starting from verse 7 of the fourth chapter was revealed.[2]

It can be inferred from this understanding that one of the maqasid (higher objectives) of wealth disposition is to secure the welfare of the immediate dependents of the deceased.

By extension, where the implementation of any wealth disposition instrument within the Islamic law may potentially cause hardship of anyone of the dependents, it is to be negated and avoided.

This has been done in the past by scholars who have led to the creation of instruments such as conditional nazar,[3] or the acceptance of what used to be a less preferred or abandoned instrument like hibah ruqba[4] by contemporary scholars.

In fact, there have been instances where scholars have actually accorded Islamic legitimacy to customs which were otherwise not recognized in the Middle Eastern understanding of Islam.

This is exemplified in how scholars, such as the famed Prof. Dr. Haji Abdul Malik Karim prosesAmrullah (Hamka), from the Minangkabau tradition in Indonesia, who opines that the matriarchal division of wealth based on the customary rules of adat perpatih[5] is valid in Islam. To this end he proposed that the division be considered as a form of wakaf khas or specific wakaf.[6]

With this as a background and context, it is clear that Islamic inheritance came to reform the injustice which existed within the Arabian society of that time.

As mentioned by Imam Al-Qurthubi, who is an established authority in Islamic law, this reason of revelation shows Islam’s focus on the serving the family first and its attention to safeguarding the primary building blocks of a society which is the family.[7]

Ultimately, this context shows that Islamic estate distribution is intended to secure the rights of immediate family members who would most likely be the dependents of the praepositus or deceased, regardless of gender. This is where, for example, verse 7 of the chapter states clearly that just as men have a right to be beneficiaries so too women. This is especially significant in a society where a woman was not only denied rights to inheritance but in fact worst, they were considered as commodities to be inherited.

The traditional Arabian society had this practice that a male relative who first lays a cloth over the wife of a deceased relative claims the right over her. And when we observe closer the stipulated shares in the Qur’an is a reflection of the degree of responsibility of the individual within a family unit.

The Islamic inheritance law should not be seen as being mutually exclusive of such other existing parts of the whole Islamic law such as obligatory maintenance (nafaqah). This is why scholars have asserted that where the obligatory sustenance model is not present or functioning as it should due to any reason, be it socially, economically, culturally or even for simple negligence, this then necessitates a rethinking of wealth disposition using various instruments or even where needed, the creation of new instruments.[8]

This can be seen in the Muis Fatwa Committee’s position in considering the Central Provident Fund and revocable insurance’s nomination as a form of contemporary inter-vivos gift (hibah) different from the traditional hibah discussed in traditional fiqh.

In line with this reason and context of revelation too, Islamic scholars such as Ibn Abi Layla, Abu Thawr, Malik, Ahmad ibn Hanbal and Al-Qurthubi are of the view that the distribution of an estate can be delayed should it potentially cause suffering, hardship or danger for any beneficiary.[9]

This is guided by a Prophetic tradition which means “No distribution of estate is to be executed except what can be apportioned [without harming any beneficiary].” (Narrated by Al-Daruqutni).

This is premised also on the ethical parameter laid down by the Prophet which disallows Muslims from causing harm or reciprocating harm as seen in his tradition “Do not do harm nor reciprocate harm.” (Narrated by Ibn Majah and Ahmad)

Hence, in securing the welfare of the dependents, it is important to not only focus on the apportionment of rights but also in the execution of the distribution, whether or not, it would harm or cause any hardship to other beneficiaries.

It would be a contradiction, if in ensuring that one beneficiary obtains his/her right, another beneficiary suffers as a result from the distribution. Hence we always advise Muslims that in claiming rights from the estate of your deceased relative, it is your moral joint tenancy bookletduty and obligation to ensure that in doing so you do not cause any harm or suffering to the other beneficiary. And if doing so would lead to the suffering of any beneficiary then you are morally obliged to remove the factors causing the suffering before you claim your rights.

Objective 2: Graciousness in the disposition of wealth and maintaining relationship

As part of the ethics of estate planning, Muslims are also encouraged, where possible to give some token from the estate, to family members who may not qualify as a faraidh beneficiary and for that to be accompanied with kind and gracious words, regardless of whether a token has been presented to the non-beneficiaries or not.

This is as mentioned in the Qur’an:

“If the relatives (who are not heirs) and the orphans and the needy are present at the time of distribution, give them some of it, and speak to them in fair words.” (The Qur’an, 4:8)

In fact some scholars are of the view that it is compulsory for the beneficiaries to allocate a portion of their share for this group of people.[10]  This again emphasizes the importance of graciousness in estate distribution.

This verse seeks to remind Muslims that wealth distribution is not only about rights of self interest, but it is also about graciousness, honour, compassion and sensitivity towards the feelings of others around you.

Those who are not specifically mentioned as beneficiaries do not necessarily mean that they are to be entirely denied any portion of the estate. This is where in planning while we would want our dependents to get as much share as possible from our wealth, Muslims should not forget to allocate a token portion for their extended families, the needy or for charitable causes.

This ethical administration of wealth disposition in Islam should be one which is observed by Muslims lest we risk the instruments being charged with insensitivity and even injustice.

Objective 3: The need to plan for welfare of dependents

The Qur’an says:

“Those people should be fearful (in their behavior towards orphans) who, if they leave behind some helpless children, would remain anxious for them. So, they should fear Allah and say what is right.”(The Qur’an, 4:9)

This verse seeks to remind first, those who are planning, that they should seriously consider the welfare of their dependents so as not to leave them destitute.

This is as mentioned in the Prophetic tradition where a companion has only one daughter. He sought Prophet Muhammad’s view if it was permissible for him to will away two-thirds of his wealth for charitable causes. The Prophet advised him against it and he then reduced it to a half and then third after the Prophet prohibited him from doing so.estate planning-diagram-1

In fact, in the same narration, the Prophet stressed an important consideration in estate planning and the being “It is better to leave your children with wealth than to leave them poor and having to beg from people.” (Narrated by Muslim)

This tradition is significant as it proves clearly that even for a charitable cause, the welfare of a Muslim’s dependents take precedence and has to be accorded priority before other causes.

Secondly, this verse also seeks to remind those family members, friends or advisers of the people who are making their wealth distribution plans, that it is their moral duty to advise them against denying the rights of their dependents or beneficiaries.

Thirdly, this verse also addresses those who receive a share from any estate as a reminder that just as they would not want their dependents welfare to be ignored then they should also think of the immediate dependents of the deceased from whom they have inherited a share. With the right over shares that they inherit, it comes with it the responsibility for them to ensure that the welfare of the dependents of the deceased is taken care of.

Novel ijtihad based on maqasid shari’ah in financial (mu`amalat) issues

At this point, it is important to note another principle that while there are some aspects of Islamic law which are immutable and cannot be changed such as those related to ibadah or rituals, there are aspects of the law which are dynamic and even open to novel or new interpretations, albeit it has to be guided by established and authoritative methodologies of Islamic legal scholars.

Primarily, it is recognized in traditional Islamic scholarship that substantive law must remain guided by the spirit and objectives of the law as principles.

This is as asserted by Ibn Qayyim Al-Jawziyyah who said, “The shar`iah is based on justice, mercy, the good of human and wisdom. Every situation in which justice succumbs to tyranny, mercy to cruelty, goodness to corruption, wisdom to foolishness, has nothing in common with the Sharia, even if it is result of an allegorical interpretation.”[11]

This therefore demonstrates to us that while there have been rulings deduced by earlier scholars, it is the duty of jurists of every generation and era to focus their juristic efforts in ensuring that the rulings remain in line with the objectives of the law which is justice, mercy, goodness and one based on wisdom.

For aspects of the law which are mutable or permitted to be changed mu`amalat is an area where novel ijtihad or independent juristic reasoning is permitted. Mu`amalat mainly covers financial, economic and transactions of which Islamic financial planning and wealth distribution is one of it.

This is as indicated in the following legal maxim.

“The status of contracts and conditions is permissible, unless what is declared as prohibited by the shar`iah.”[12]

It is with this understanding that scholars have executed ijtihad in creating instruments for Islamic wealth and estate distribution to ensure that Islamic law continues to facilitate Muslims in their socio-religious life.

Conclusion

The writer has demonstrated thus far that planning for the needs of dependents and securing their welfare after an individual’s death is indeed an integral part of Islamic teachings.

The role of context and circumstances in the continued development of Islamic law particularly in the area of financial planning and wealth distribution is also important to be considered in this matter.

This is evident through the various instruments developed by scholars in this field and how novel ijtihad (ijtihad insha’i) or independent legal reasoning can facilitate in the creation of more sophisticated instruments of wealth distribution.

It is hence imperative for one who is planning to engage in planned giving to understand these objectives, tools and basis upon which traditional Islamic scholars have and will continue to employ in order to uphold the relevance and spirit of wealth disposition in Islamic law.

wariskan harta atau sengketa

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Note:

[1]Islamic intestate inheritance law.

[2]Narrated by Al-Tabari in Jami` Al-Bayan, vol. 4, p.176; Al-Naisaburi, Asbab Al-Nuzul, p.106.

[3]Ibn Hajar Al-Haytami, Tuhfat Al-Muhtaj Fi Sharh Al-Minhaj, Dar Ihya’ Turath Al-`Arabi, Beirut, 1983, vol.10, p.77.

[4]Malaysian Securities Commission, Resolutions of the Securities Commission Shariah Advisory Council, Securities Commission, Kuala Lumpur, 2007, pp.129-33. Hibah ruqba is “a conditional gift determined by the hibah giver whereby the hibah property will be owned by the hibah recipient in case the hibah giver dies. But if the hibah recipient dies before the hibah giver, the hibah shall be returned to the hibah giver”. Please refer to Al-Syawkani, Nail Al-Awtar, Dar Al-Fikr, Beirut, 1994, vol. 6, pp. 112–113; Ibn Qudamah, Al-Mughni, Dar Al-Fikr, Beirut, 1994, vol. 5, p. 335; Wahbah Al-Zuhaili, Al-Fiqh Al-Islami Wa Adillatuh, Dar Al-Fikr, Damascus, 1989, vol. 5, p. 10; Wizarah Al-Awqaf Wa Al-Syu’un Al-Islamiyah, Al-Mawsu`ah Al-Fiqhiyyah, Kuwait, 1992, vol. 23, pp. 5–6.

[5]Adat Perpatih (also known as Lareh Bodi Caniago) is customary law which originated from the Minangkabau Highlands in Sumatra, Indonesia. Their culture is matrilineal and patriarchal, with property and land passing down from mother to daughter, while religious and political affairs being the responsibility of men. For more information see http://www.journeymalaysia.com/M2state_negerisembilan.htm

[6]Karim Amrullah, Abdul Hamid (Hamka), Islam dan Adat Minangkabau, Pustaka Panjimas, Jakarta. 1984. pg.102-106.

[7]Muhammad ibn Ahmad Al-Qurthubiy, Al-Jami` Li Ahkam Al-Qur’an, Dar Al-Hadith, Cairo, 2002, vol.3, p.45.

[8]Dr Jasser Auda stated this in his Masterclass for Religious Teachers at the Islamic Religious Council of Singapore on 23 July 2015 with the theme of  “Islamic Ethics, Maqasid Shar’iyyah & Public Policies”.

[9]Al-Qurthubiy, Al-Jami` Li Ahkam Al-Qur’an, p.46

[10]One such scholar is the learned companion and cousin of the Prophet, Abdullah ibn `Abbas. See Al-Qurthubiy, Al-Jami` Li Ahkam Al-Qur’an, p. 48.

[11]Ibn Al-Qayyim Al-Jawziyah, I`lam Al-Muwaqi`in `An Rab Al-`Alamin, Dar Al-Kutub Al-`Ilmiyah, Beirut, vol. 3, p.1.

[12]Ibid, vol.1, p. 344.

 

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