1. 1
THE APPLICATION OF OBLIGATORY BEQUEST IN MALAYSIA:
ISSUES & CHALLENGES
Tajul Aris Ahmad Bustami1
INTRODUCTION
Before 1999, there was no specific legislation on Muslim bequest in Malaysia. While dealing on
issues related to bequest, syariah courts in all States in Malaysia, therefore, relied heavily on
non-codified hukum syaraâ and general provisions in their respective Administration of Islamic
Law Enactment.2
Selangor, through Muslim Wills (Selangor) Enactment 1999,3
was the first
State introducing specific law relating to Muslim bequest.4
The statute provides, among other
things, that any application relating to inheritance5
and bequest, including obligatory bequest,
shall be dealt with by the Syariah Subordinate Court or Syariah High Court depending on the
value of the subject matter.6
Later in 2004, Negeri Sembilan followed Selangor and enacted its
Muslim Wills (State of Negeri Sembilan) 2004 and then in 2005, Malacca passed its Muslim
Wills (State of Malacca) Enactment 2005.7
The statutes were prepared based on the legislation
enforceable in Middle Eastern Countries. There is no such statute in other States in Malaysia.
This paper shall attempt to discuss the position of the obligatory bequest as existed in
those Statesâ legislation and its application in the syariah courts. A comparative analysis shall be
done with the position of the obligatory bequest as existed in other Muslim countries. This paper
shall highlight legal constraints relating to the provisions and shall propose suggestions for the
improvement of the system.
Since Negeri Sembilan and Malacca have adopted almost words by words the provisions
in the Selangor Enactment, the reference shall be made to the Selangor Enactment throughout
this paper as to represent Negeri Sembilan and Malacca as well. The Negeri Sembilan and
Malacca Enactments shall only be referred to in case of the different provisions or wordings with
the Selangor Enactment.
1
The presenter is currently an Assistant Professor at Ahmad Ibrahim Kulliyyah of Laws, International Islamic
University Malaysia.
2
For example, see section 46(2) of the Administration of Islamic Law (Federal Territories) Act 1993.
3
The Enactment was only come into force in 2005.
4
Tajul Aris Ahmad Bustami, âPenghakiman Kes Wasiat Orang Islam: Satu Analisis,â in Mahamad Arifin et al.,
Pentadbiran Undang-undang Islam di Malaysia, Kuala Lumpur: Dewan Bahasa dan Pustaka, 2007 at 204. See also
Tajul Aris Ahmad Bustami, âPentadbiran Wasiat Orang Islam di Malaysia: Perkembangan dan Permasalahan,â
(2004) 16 KANUN (1) 8.
5
This includes an application for the issuance of inheritance certificate under section 65 of Administration of the
Religion of Islam (State of Selangor) Enactment 2003.
6
Section 62 (1) (b) of Administration of the Religion of Islam (State of Selangor) Enactment 2003 provides that for
any application which the value of the subject matter is less than RM100,000.00, the application shall be heard by
the Syariah Subordinate Court and any application which is more than that amount shall be heard by the Syariah
High Court.
7
The official English terminology for waĂiyyah used in the Statesâ Enactments in Malaysia is âwillâ not âbequestâ as
commonly used in the Middle Eastern Countries. Throughout this paper, reference to phrases âbequestâ or âwillâ
shall carry the same effect.
2. 2
BASIC ISSUES RELATING TO OBLIGATORY BEQUEST
The application of the doctrine of obligatory bequest can only be materialised when few relevant
issues are adequately understood and addressed, namely:
Obligatory Bequest: A Matter of Right or a Matter of Need?
It is clear that this doctrine was introduced as a safeguard to the welfare of orphaned
grandchildren. In al-Jaâbari system of inheritance,8
it was the responsibility of the eldest male
member of the family to protect the interest of the younger especially the orphans. During pre-
Islamic era, it was always the responsibility of the grandfather to look after his grandchildren if
their father died. Upon the grandfatherâs death, the responsibility was transferred to his surviving
sons (the paternal uncles of the children) to safeguard the interest of the orphans. Hence, the
orphans could continue their lives in the society competitively.
The question here is how far the eldest male member of a family, or in particular the
uncles, in this present day would fully protect the interest of the orphaned grandchildren? Kemal
Faruki and Coulson believe that the sense of the responsibility has very much decreased and
diminished in the modern days.9
The lack of this sense of responsibility, which became the
reason for the introduction of the modern device, seems to suggest that the protection can no
longer be guaranteed in our present life. It is hard to find, though not possible, an uncle who fully
looks after the welfare of his nephews and nieces as can be seen in the pagan system.
The other relevant issue here is what the justification of the implementation of the
obligatory bequest system would be: Is it a matter of right or need? If it were a matter of right,
the doctrine would be implemented regardless of the financial standing of the orphaned
grandchildren. If is a matter of need, the financial standing would be a determining factor in
granting this right to the orphaned grandchildren. What if the orphaned grandchildren are already
rich while their uncles are relatively poor? In this situation can the doctrine be still applicable? If
it is a matter of right as claimed by some writers,10
they are entitled to the obligatory bequest
regardless of their financial standing. If it is a matter of need, then it may suggest that when the
orphaned grandchildren are financially stable, it is not proper and justifiable for them to claim for
it.
As legal provision is silent on this matter, the presumption is that it is very much a matter
of right. This means that the court would not look at the financial status of the orphans and other
inheriting heirs. Nevertheless, it is suggested that, while determining the quantum of a reasonable
provision to be given to the orphans, the court should look at the financial standing of the
orphans and decides the application accordingly. In this situation the court has to have a specific
mechanism in determining the appropriate amount to be granted to the orphans.11
8
Al-Jaâbari system was an inheritance system applicable during the pre-Islamic era which was later adopted by
Islam with necessary modifications to make it in line with the Shariah principles.
9
See detailed discussions above.
10
For example, see N. J. Coulson, Succession in the Muslim Family, Cambridge: The University Press, 1971 at 144.
See also Ahmad Hidayat Buang, âAmanah dan Hartaâ, Massa, February, 2003 at 1-7.
11
This idea may be considered if relevant provision in the law is to be amended accordingly.
3. 3
Obligatory Bequest versus Voluntary Bequest12
In a competition between obligatory bequest and voluntary bequest, the law would operate in
favour of the former and the remaining, if any, would go to the latter.13
In case of the maximum
portion of one-third is exhausted by the former, it may be argued that not only the beneficiary of
the latter would suffer injustice, the testator would also be deprived from absolute dealing with
one-third of his personal property. This is because the optional bequest is executed based on the
testatorâs wishes while the obligatory bequest is an instrument âforcedâ by the court on his estate.
It is proposed also that while assessing the amount of obligatory bequest to be granted,
the court must also look at the provisions in voluntary bequest. In this situation, not only the
rights of the orphans is protected, the wishes of the deceased testator can also be fulfilled and
respected.
Obligatory Bequest: Faraâid or Bequest?
Another basic issue that has to be addressed is that under which instrument that the obligatory
bequest operates? Is it faraâid of bequest? This is material because it would determine which
legal ruling (hukm) to be referred to while applying the law relating to obligatory bequest.
From the nature and the implementation of obligatory bequest, it can be said that it is
similar to bequest in the sense that it is enforceable to non-legal heir and the amount granted is
up to one third of the net estate only but they differ on two aspects. Firstly the beneficiary of
bequest can be any non-legal heir whereas the beneficiary of obligatory bequest can only be non-
inheriting orphaned grandchildren. Secondly, bequest, generally, is a declaration of the intentions
of a testator during his lifetime with respect to his estate, which he desires to be carried into
effect after his death.14
obligatory bequest, on the other hand, is an instrument created by court in
favour of orphaned grandchildren should the deceased fail to provide any bequest or hibah in
favour of the latter during his lifetime.15
The intention of the testator is immaterial.
Obligatory bequest is also similar to faraâid where it operates automatically without any
planning on the part of the praepositus and there is no requirement for the recipient to accept it
(qabd) as the requirement in bequest. The orphaned grandchildren can only receive it in the
absence of their father.16
Nevertheless, they differ in two aspects. Firstly, the recipients of faraâid
shall be legal heirs while the recipients of obligatory bequest should not. Its recipient may be a
person who is normally being excluded under the normal rule of inheritance based on the
principle of hajb (rule of exclusion by a person who is nearer in degree to the praepositus).17
In
12
Ahmad Faraj Husayn, Ahkam al-Wisaya wa al-Awqaf fi al-Shariâah al-Islamiyyah, Iskandariyyah: Dar al-
Matbuâat al-Jamiâiyyah, 1997at 198-199.
13
See section 78 of Egyptian Law of Bequest 1946.
14
Section 1 of Egyptian Law of Bequest 1946 provides that âbequest is a disposition of the estate to take effect after
deathâ.
15
See Coulson, at 146.
16
In the presence of their father, the grandchildren will be excluded in faraâid through the operation of âasabah rule
âthe nearer in degree shall exclude the more remoteâ. They are also not entitled to claim obligatory bequest as they
are not yet âorphansâ at that time.
17
AĂmad FarĂj Husayn, at 199-200.
4. 4
this situation, the orphaned grandchildren can claim for obligatory bequest even in the presence
of the praepositus son. Secondly, the recipients of faraâid enjoy unlimited amount of share within
the formula laid down by the law while the recipients of obligatory bequest shall only receive up
to one third of the net estate.
As a conclusion, obligatory bequest perhaps can be said as a hybrid instrument between
bequest and faraâid where the beneficiary receive it following a representation rule in faraâidĂ
but the amount is limited to one-third rule as in bequest. The fusion of both faraâid and bequest
elements in one device shows the uniqueness of the system. As a new legal mechanism, proper
guidelines should be adequately available on its implementation so that justice can be served to
all relevant parties.
LEGAL PROVISION
Section 27(1) of Muslim Wills (Selangor) Enactment 1999 provides:
Where a person dies without making any will to his grandchildren through his son
who has predeceased him or dies with him at the same time, then his
grandchildren shall be entitled to the will of one-third of his estate and, if such
grandchildren is given less than one-third, his share shall be executed in
accordance with the provisions of the obligatory will provided for under this
section.18
The above provision provides an application of a specific legal device, in a given context,
that allows orphaned grandchildren,19
through a courtâs order, to claim a share in their
grandparentâs estate as representatives of their deceased parent based on certain conditions
provided by law. It is a legal instrument provided by the statute and granted by courtâs order
based on an application by the relevant party. It is not automatic as it must be sanctioned by the
court. This legal device is popularly known as obligatory bequest (wasiyyah wajibah).
CONDITIONS OF OBLIGATORY BEQUEST IN MALAYSIA
There are several conditions that must be fulfilled before an obligatory bequest can be enforced.
This part shall only look at the conditions as laid down in section 27 of the Muslim Wills
(Selangor) Enactment 1999.20
18
See also section 27(1) of Muslim Wills (Negeri Sembilan) Enactment 2004 and section 27(1) of Muslim Wills
(State of Malacca) Enactment 2005.
19
Orphaned grandchildren generally refers to grandchildren whose parental link with the praepositus predeceased
the praepositus.
20
This part should be read together with the general conditions as discussed in Chapter Five above.
5. 5
The Son should Predecease the Praepositus
The son through whom the orphaned grandchildren are related to the praepositus should have
predeceased the praepositus.21
These grandchildren are later being excluded by any surviving son
or sons (their uncle(s)) in the inheritance through the principle ânearer in degree excludes the
more remoteâ. For the application of the device, the grandchildren shall receive the share that
their father would have received should he survive the praepositus.22
This condition, rationally, is a basis for an obligatory bequest because should their father
be alive at the time of the death of their grandfather, there is no need for an extra legal
protection. Their father, with the share he receives from the praepositusâs estate, would,
definitely, look after their welfare.
There is no bequest by the Praepositus to the Orphaned Grandchildren.23
Generally, an obligatory bequest is only applicable when there is no voluntary bequest executed
by the praepositus to the orphaned grandchildren. This is so because the gift through the bequest
is considered adequate for their survival. However, if the amount is less than what they should
receive,24
the court shall increase the amount accordingly.25
If the amount of the bequest is more than the amount they are entitled to, the excess shall
be regarded, with the consent of heirs, as a voluntary bequest.26
Otherwise, without the consent,
the amount shall be limited to one-third only.
There is no Hibah (Gift) by the Praepositus during His Lifetime to the Orphaned
Grandchildren?27
In most of the statutes, if the orphaned grandchildren have already received a hibah from their
grandparent, no obligatory bequest can be applied.28
The reason might be that the legislatures
want to avoid a situation, with the operation of the doctrine, where the orphaned grandchildren
who originally receive nothing in inheritance to get double benefits from the praepositusâs estate
namely the hibah and shares in obligatory bequest. The interest of other legal heirs should also
be protected by the legislatures.
21
See Section 27(1) of Muslims Will (Selangor) Enactment 1999.
22
If the son of the praepositus (their father) is very much alive at the time of the decease, then this legal device
cannot be applied.
23
See section 27(3) of Muslims Will (Selangor) Enactment 1999.
24
The amount is either one that their parents would have entitled should they survive the praepositus or the
maximum one third of the net estate, whichever is less.
25
See proviso to section 27(3) of Muslims Will (Selangor) Enactment 1999.
26
See proviso to section 27(3) of Muslims Will (Selangor) Enactment 1999.
27
See section 27(3) of Muslims Will (Selangor) Enactment 1999.
28
See for example, section 76 of Egyptian Law of Bequest 1946. The law provides that if the amount of hibah is
less than their entitled amount under obligatory bequest, the court would complete it accordingly.
6. 6
LEGAL CONSTRAINTS OF THE PROVISION
There is only one short section in the enactment dealing with the obligatory bequest. The brevity
invites a question that whether the section is exhaustive to cover all relevant aspects of the
application of the law? Whether the conciseness means inadequacy of the law that may open to
various interpretations? The followings are the issues that must be seriously looked into in the
implementation of this devise.
What is Obligatory Bequest?
It is interesting to note that there is no legal interpretation of obligatory bequest in all enactments
in Malaysia.29
The enactments, instead, just provide a situation when the obligatory can be
applied.30
The absence of legal interpretation might lead the public to confusion as to what actually
this device is. For example, some writers referred obligatory bequest as as âsebahagian daripada
harta peninggalan yang diperuntukkan oleh undang-undang untuk anak-anak yang kematian ibu
bapa sebelum datuk atau nenek âŚâ31
In other words, the writers referred it as a share or portion
received by the orphaned grandchildren granted through legal process.
With due respect, obligatory bequest, like other instruments such as bequest (wasiyyah)
and gift (hibah), is a mechanism used by the court to ascertain the right of orphaned
grandchildren in the estate of their grandparent. It is not the portion granted by the court as it is
the outcome of the process. Hence, describing it as a âportionâ is not accurate.
It is understood that the terminology obligatory bequest (wasiyyah wajibah) is also not
defined in the Middle Eastern Countriesâ statutes. The reason might be because most of them
were enacted as early as in the 1940s and 1950s when providing legal interpretation was not a
standard format during that time. When Malaysian legislators wanted to have a specific statute
on bequest, they, unfortunately, just simply took the Middle Eastern Countries legislation almost
in verbatim without looking at contemporary needs and format. It is, however, quite strange and
unacceptable when such an important and basic terminology is not defined in the modern
statutes. Therefore, in order to avoid any misunderstanding, there is a need for an exhaustive
legal interpretation of obligatory bequest so that the device could be well understood by all. The
interpretation should clearly differentiate between obligatory bequest (wasiyyah wajibah) and
29
More interestingly, neither of the Middle Eastern Countriesâ legislation provide the interpretation on obligatory
bequest.
30
See section 27(1) of Muslim Wills (Selangor) Enactment 1999. See also section 27(1) of Muslim Wills (Negeri
Sembilan) Enactment 2004 and section 27(1) of Muslim Wills (State of Malacca) Enactment 2005.
31
Loosely translated as âa portion of share received by the orphaned grandchildren from their grandparentsâ estate or
in their own wordingsâ. See Mohd Zamro Muda & Mohd Syukri Jusoh, âKajian Mengenai Peruntukan Undang-
Undang Wasiat Wajibah di Selangorâ in Ahmad Sunawari Long et all., Islam: Past, Present And Future, Bangi:
Universiti Kebangsaan Malaysia, 2004 at 64.
7. 7
ordinary bequest (wasiyyah); and with the obligatory bequest (wasiyyah wajibah) as proposed by
Ibn Hazm and School of al-Zahiri.32
Who are the Recipients of Obligatory Bequest?
The Muslim Wills (Selangor) Enactment 1999 provides that:
Where a person dies without making any will to his grandchildren through his
son who has predeceased him or dies with him at the same time, then his
grandchildren shall be entitled to the will of one-third of his estate and, if such
grandchildren is given less than one-third, his share shall be executed in
accordance with the provisions of the obligatory will provided for under this
section.33
[Emphasis added]
Unlike Egyptian34
and Tunisian35
statutes which give protection to the daughterâs
children of the first generation despite the fact that they are distant kindred relatives (dhawu al-
arham), the above provision only recognises the agnatic grandchildren as the recipients of the
obligatory bequest to the exclusion of the cognatic grandchildren.
During early stage of the introduction of the Selangor Enactment, many contended that
the Enactment follows the Egytian law especially on the provisions relating to the orphaned
grandchildren.36
However, the different meanings of orphaned grandchildren is the first evidence
that the Selangor Enactment37
does not follow the Egyptian legal provisions.
The words âhis grandchildren through his sonâ in the section is very clear, suggesting
that no such protection is given to the daughterâs children. The provision, perhaps, suggests that
the basis of obligatory bequest is inheritance and therefore all rules pertaining to inheritance
should be applicable while enforcing the legal devise.38
Since daughterâs children are classified
as distant kindred relatives and have no place in inheritance,39
the obligatory bequest shall not
also be available to them. Though this argument may sound logic, it is not accurate either. This is
because in this device, the basic rule in the law of inheritance has already being upset when the
32
Ibn Hazm and School of Zahiri were of the opinion that leaving a bequest to non legal heirs relatives is still
obligatory based on surah al-Baqarah (2): 180. See also Abdul Monir Yaacob, âWasiat: Konsep Dan Perundanganâ,
paper presented in Seminar Pentadbiran Harta Menurut Islam organised by Institut Kefahaman Islam Malaysia
(IKIM), 16-17 November 1998, Kuala Lumpur, at 11.
33
See section 27(1). See also section 27 (1) of Muslim Wills (Negeri Sembilan) Enactment 2004 and section 27 (1)
of Muslim Wills (State of Malacca) Enactment 2005.
34
See section 76 of Egytian Law of Testamentary Bequest 1946.
35
See sections 191-192 Tunisian Law of Personal Status 1956 and Supplement Thereto 1959.
36
For example, Datuk Sheikh Ghazali Abdul Rahman, Director General/Chief Judge (as he then was), Jabatan
Kehakiman Syariah Malaysia, interview by thesis writer on 17th
June 2004 at Putrajaya, Wilayah Persekutuan.
37
The same argument is applicable to Negeri Sembilan and Malacca Enactments.
38
Y.A. Hj Abu Bakar Bin Daud, Selangor Syariah High Court Judge, interview by researcher on 2nd
February 2008
at Gombak, Selangor Darul Ehsan..
39
The priorities of inheritance according to Shafiâi School of law, as enforceable in Malaysia, is that in the absence
of inner family (asĂab al-furuĂ and ĂaĂabah), the estate would go to Bayt al-Mal. Hanafi School of law, on the other
hand, ruled that dhawu al-arham including daughterâs children shall only inherit in the absence of the inner family.
8. 8
grandchildren may inherit together with the son of the praepositus. Therefore, to say that the
basis of obligatory bequest is inheritance is not correct.
This strict interpretation of the recipients of obligatory bequest would defeat the original
purpose for its introduction in Egypt, which is to give an extra protection to the orphaned
grandchildren regardless whether they are the children of the predeceased son or daughter.40
This
is the reason why the recipients of obligatory bequest is more wider in Egypt rather than in
Malaysia. It is questionable, through this very strict interpretation in Malaysia, that the objective
of the law could be well achieved.
Secondly, the provision states that the obligatory bequest is available for the first
generation of the agnatic grandchildren without any mention of the lower generations. It is
argued that the word âgrandchildrenâ in the above provision may suggest that the application
should be limited to the first generation of grandchildren only and the protection cannot be
extended to the second and further generations of the orphaned grandchildren.41
Because of the
limited application of the meaning, the objective for the introduction of this law in giving legal
protection to grandchildren, might not be fully achieved as it is confined to the first generation
only and cannot extended to further generation of orphaned grandchildren.42
This is another evidence that the Selangor enactment was not enacted based on the
Egyptian legislation. Whilst Egyptian law expressly spells out the extended meaning of
orphaned grandchildren covering all agnatic grandchildren regardless of their degree of removal
to the praepositus,43
Selangor enactment prefers to use the general terminology âgrandchildrenâ
without specifying the generation involved. Hence, it is contended that the law applies to the first
generation of orphaned grandchildren only.44
Even though the law impliedly suggests that the protection is for the first generation of
the agnatic grandchildren, could it be extended to the further generations?45
To compare with, the
terminology abnaâ in Arabic in general and Islamic law inheritance in particular, refers to
children and also grandchildren how low soever. Likewise, abaâ refers to father and grandfathers
how high soever.46
If the court adopts this approach, it may interpret âthe grandchildrenâ as loose
as possible so long as justice can be served to the parties involved based on the principle of
maslahah (public interest). Very loose interpretation, however, should not be allowed, as it
would open to abuse of the process of the court. In this regard, the court should play a proactive
role in interpreting the provisions in accordance with local needs and, in the process, it may
adopt relevant scope as practiced in other Middle Eastern Countries. The interpretation in Egypt
40
In line with this contention, Datoâ Dr Abdul Monir suggests that the basis for the implementation of wasiyyah
wajibah is to establish justice in accordance with Islamic spirit. See Abdul Monir Yaacob, âWasiat: Konsep Dan
Perundanganâ, at 12.
41
See Mohd Zamro Muda & Mohd Syukri Jusoh, at 68.
42
Ibid.
43
The Egyptian law clearly states that obligatory bequest is only for daughterâs children of the first generation only
and agnatic sonâs children how low soever. See section 76 of Egytian Law of Testamentary Bequest 1946.
44
At least this is what is understood by Selangor Syariah judges as they would go to the literal interpretation of the
wordings (Y.A. Hj Abu Bakar Bin Daud, Selangor Syariah High Court Judge, interview by researcher on 2nd
February 2008 at Gombak, Selangor Darul Ehsan).
45
At least similar to the position in Egypt where any agnatic grandchildren from any generations could benefit from
the device.
46
See for example, the generality of abb over jadd in al-QurâĂn in Surah Yusof 12: 38 and al-Aâraf 7: 27.
9. 9
perhaps can be adopted as it covers extensive layers of grandchildren while at the same time
observing the basic principle of inheritance namely the Jaâbari rule. Alternatively, the legislator
may also amend the law to make it clearer and more precise.
Thirdly, is it a requirement that that the recipient of the obligatory bequest should be a
minor? Can a person attaining the age of majority benefit from the scheme? This issue arises
when the Bahasa Malaysia version of section 27(2) & (3) is referred to. The section provides:
(2) Kadar wasiat wajibah untuk kanak-kanak yang disebut dalam subseksyen (1)
hendaklah setakat kadar di mana ayahnya berhak daripada harta pusaka
datuknya sekiranya diandaikan ayahnya itu mati selepas kematian datuknya:
Dengan syarat wasiat itu tidak melebihi satu pertiga daripada harta pusaka
simati.
(3) Kanak-kanak tersebut hendaklah tidak berhak kepada wasiat sekiranya dia
telah mewarisi daripada datuk atau neneknya, mengikut mana berkenaan, atau
datuk atau neneknya semasa hayatnya, dan tanpa menerima apa-apa balasan,
telah membuat wasiat kepada mereka atau telah memberi kepada mereka harta
yang bersamaan dengan apa yang mereka sepatutnya menerima menurut
wasiat wajibah:
Dengan syarat sekiranya wasiat yang dibuat oleh datuk atau nenek itu kurang
daripada yang sepatutnya dia berhak, haknya hendaklah ditambah sewajarnya
dan jika bahagian tersebut adalah melebihi bahagian yang dia berhak,
bahagian yang lebih itu hendaklah menjadi wasiat sukarela dengan tertakluk
kepada persetujuan waris. [Emphasis added]
There is no issue in the English version of the section as the word used is âgrandchildrenâ
which is applicable to all regardless the age. Linguistically speaking, âkanak-kanakâ in Bahasa
Malaysia refers to an under-aged person or a minor. Would the obligatory bequest be confined to
the minor47
or could it be extended to adults as well?
Apparently, there is a slight contravention between the words âkanak-kanakâ in Bahasa
Malaysia version and âgrandchildrenâ in the English version of the Selangor Enactment as both
suggest contrary meanings. In Malaysia, when there is a conflict between Bahasa Malaysia and
English versions, the former would be given effect. Is âminorâ that was intended by the
legislature for the obligatory bequest? If the answer is in affirmative, then the scope of the
obligatory bequest in Selangor is narrower and limited in its application as compared to other
countries.
This issue does not arise in any other countries as the word used is âgrandchildrenâ or
ahfad in Arabic and there is no reference whatsoever to the minor in their respective legislation.
This issue is not discussed also in any writings or decided case in those countries. This may
suggest that age is not an issue for obligatory bequest in these countries. This stand is further
47
At least this is a stand taken by Mohd Zamro Muda when he insists that the word âkanak-kanakâ refers to minors
only to the exclusion of adults.
10. 10
supported by the fact that the word âkanak-kanakâ is not used in both Negeri Sembilan and
Malacca Enactments whereby the word used in their section 27(2) & (3) respectively is âcucuâ
(grandchildren). This may give inference that attaining the age of majority is not a bar to the
obligatory bequest in Malaysia.
It is submitted that, despite the word âkanak-kanakâ, the syariah courts in Selangor should
adopt wider interpretation on the recipients of the obligatory bequest by emphasizing that age is
not a barrier for the application of obligatory bequest. Fortunately, this is the present stance of
the syariah courts in Selangor that age is not a determining factor on the eligibility of one to
benefit from obligatory bequest.48
However, in the absence of legal interpretation of the courts, it
is hard to determine how long this stance would stand.
AMOUNT OF OBLIGATORY BEQUEST
By the application of obligatory bequest, the orphaned grandchildren, shall receive the amount
that their parent would have received should they survive the praepositus.49
In case where the
amount exceeds one third of the net estate, the orphaned grandchildren would be entitled to a
maximum portion of one third only.50
If the praepositus bequeaths to the orphaned grandchildren an amount which is less than
they are entitled to under the obligatory bequest, the court shall increased it accordingly.51
Interestingly, the word used in the Selangor enactment is âshallâ which means it is mandatory for
the court to increase the amount. This mandatory provision should be looked into as the court has
no choice except to enforce it. It is submitted that the more appropriate word is âmayâ instead of
âshallâ. The court should be given a full discretion on whether to increase the amount to a figure
that their parents entitled to should they survive the praepositus or not, depending on the question
of fact and the financial standing of all parties involved. Then, an appropriate order can be issued
accordingly.52
ADMINISTRATIVE AND PRACTICAL PROBLEMS IN APPLYING OBLIGATORY
BEQUEST
The Selangor, Negeri Sembilan and Malacca Enactments, being new legislation, do not provide
an exhaustive solution on the application of obligatory bequest. In applying the device, the
syariah courts in these States have to look at the experience of other countries which have
implemented this protection since a long time ago. The Egyptian courts, through their decadesâ
of experience, had shifted from the Courts System to the Muftiâs System and to Abu Zahrah
System. Abu Zahrah System, being the most practical, should be analysed and referred to by the
Malaysian syariah courts while deciding cases involving the obligatory bequest. Finally, a new
48
Y.A. Hj Abu Bakar Bin Daud, Selangor Syariah High Court Judge, interview by researcher on 2nd
February 2008
at Gombak, Selangor Darul Ehsan.
49
See section 27(2) of Muslims Will (Selangor) Enactment 1999.
50
See proviso to the section 27(2).
51
See section 27(3) of Muslims Will (Selangor) Enactment 1999.
52
See the detailed discussion on this issue at Chapter Five above.
11. 11
method of distribution was introduced in Egypt that seems more transparent, practical and more
compatible to the wishes of the testator praepositus but at the same time observes the obligatory
bequest to the orphaned grandchildren.53
Since obligatory bequest is a new legal device, particularly to the States in Malaysia, and
being developed by the contemporary Muslim jurists, there are many issues that should be
tackled before it can be effectively implemented in Malaysia:54
Shortage of References
Even though the obligatory bequest has been practiced long time ago by the Middle Eastern
Countries, the syariah court judges in Selangor find it difficult to get relevant and adequate
references. Most of the Arabic writings, which address this matter, provide its application in a
very general manner. The Middle Eastern Countries, following the civil law which gives least
emphasis on case report, have a very limited number of reported cases which are sometimes not
accessible to the non-Arab.
For effective application of the device, adequate references should be made available not
only by the Statesâ Jabatan Kehakiman Syariah but also by Jabatan Kehakiman Syariah Malaysia
which supervises the whole syariah courts in Malaysia.
Lack of Direction and Exposure
The syariah court judges do not only have an adequate reference to obligatory bequest, they also
do not have guidelines, even in general, on how it should be implemented. It is proposed that
Jabatan Kehakiman Syariah, either at State or national level, should provide an adequate
guideline, for example from to time issue Practice Directions (Arahan-Arahan Amalan)
pertaining to this matter to the syariah court judges.
Another important aspect that should be stressed is the importance of having continuous
training and exposure on the implementation of the obligatory bequest as it always involves
many complicated issues and confusing methods of calculation.
Lack of Knowledge / Awareness of the Protection
Another factor which slows down the development of obligatory bequest is lack of
knowledge/awareness among the public and syarie lawyers on the availability of this legal
device. No case has ever been reported on the application of obligatory bequest in the open
53
For the detail, see Chapter Five above.
54
This part is prepared based on the interview of the researcher with Y.A. Hj Abu Bakar Bin Daud, Selangor
Syariah High Court Judge and Y.A. Ustaz Abdul Razak Nayan, Registrar of Syariah Appeal Court Negeri Sembilan
on 2nd
February 2008 at Gombak, Selangor Darul Ehsan.
12. 12
syariah courts in Selangor,55
Negeri Sembilan and Malacca. Should the syariah courts have the
opportunity to decide many cases involving obligatory bequest, the public will be well-informed
on its existence and it could be a popular choice among the public. This will eventually
contribute to the rapid development of obligatory bequest in Malaysia.
Interestingly, the syariah subordinate courts at Shah Alam had applied the obligatory
bequest automatically if the court thinks that it is necessary at the time when a certificate of
faraâid is issued, even without the request of the parties involved. However, the process is not
done in the open court56
and so far there is no appeal filed against such distribution.
In the Estate of Fatimah binti Abdul Razak,57
a woman died leaving 5 sons, 2 daughters, a
grandson and 3 granddaughters of a predeceased son. The court discovered that there was no
hibah whatsoever provided to the grandchildren at the time of the death of the praepositus. By
applying section 27 of the Muslims Will (Selangor) Enactment 1999, the court reserved the
portion of the predeceased son (1/7) and distributed it to his children (grandchildren of the
praepositus) based on rule of âasabah. Eventually, the son received 2/35 and each daughter
received 1/35.58
Different Approaches of Judges
Because of lack of exposure on the application of obligatory bequest among the syariah court
judges, some of them adopted different approaches in determining the orphaned grandchildrenâs
share while preparing the certificate of faraâid. The difference is illustrated in the following case:
Heirs Predeceased parent
assumed Alive
Explanation
Husband 1/4 Al-Nisaâ (4): 12
Father 1/6 Al-Nisaâ (4): 11
Son A 7/24 Residuary heir
Son Bâs daughter 1 7/24
or 7/48 each
The daughters take in equal share the
portion that their father would have
received
Son Bâs daughter 1
55
The researcher only manages to get one unreported case for an application of the inheritance certificate in which
the obligatory bequest was applied. It was decided based on the ijtihĂd of the judge and not on the application of the
relevant party. Since it was decided in chambers not in the open court, it was not reported. See Appendix VI.
56
Because of this, the case is not reported. Attempts have been made to get the unreported cases but the thesis writer
is unable to get any from the Senior Registrar of the Selangor Syariah Court, except one, until this thesis is
completed.
57
Case no. KM 10200-040-0102-2006 (unreported ). See Appendix VI.
58
According to Y.A. Haji Abu Bakar Daud, the High Court judge who presided the case, the entitlement was
automatically granted by the court even without the request of the party. Upon submitting the application for
inheritance certificate, the court would enquire the applicant on the existence of children of a predeceased offspring
because in many cases, their names were listed in the application.
13. 13
It is interesting to note that the court in the above case resorted to the Courts System which is no
longer used by the Egyptian courts. By applying the obligatory bequest, the daughters exhaust in
equal share the portion that their father would have received should he survive the praepositus.
However, there is another way of calculation relied by another judge proving the non-uniformity
of approaches of the courts. The calculation is follows:59
Heirs Predeceased parent
assumed Alive
Explanation
Husband 1/4 al-Nisaâ (4): 12
Father 1/6 al-Nisaâ (4): 11
Son A 7/24 Residuary heir
Son Bâs daughter 1 2/3 of the 7/24 (residue) =
7/36 or 7/72 each
2/3 - al-Nisaâ (4): 11 when the number
of daughters is more than one
Son Bâs daughter 1
The above solution is very confusing because firstly; the total portion of the daughters
does not represent the total portion their fathers should have received and secondly; what
happens to the residue of 1/6? This person suggests that it should go to Bayt al-Mal since
daughters cannot exhaust the residue.
With due respect, the above calculation is totally misleading and based on the wrong
understanding of implementation of the system. Hence, extensive exposure and trainings on this
matter are very urgently needed by those in the syariah judiciary for a uniformed approach and
solution.
CONCLUSION
As a new legal device in Malaysia, the application of obligatory bequest should be carefully
exercised and implemented by the courts so that it may contribute to the positive development of
the Islamic Legal System in Malaysia. The non-exhaustive legal provisions might require
supports in the forms of complete guidelines and Practice Directions so that all the ambiguities in
the legal provisions could be adequately addressed. The followings are among the issues that
must be urgently looked into in the implementation of the obligatory bequest:
Firstly, it is said that the Selangor provision on obligatory bequest was legislated in
reference to the scheme applicable in Middle Eastern countries. Nevertheless, it seems that the
scope of orphaned grandchildren provided by section 27 of the Muslim Wills (Selangor)
59
For confidentiality reason, Y.A. Haji Abu Bakar Bin Daud did not disclose the identity of this judge. Because of
lack of guidelines, judges exercise their ijtihĂd based on their understanding of the issue, hoping that it would serve
justice to the parties involved.
14. 14
Enactment 1999 is narrower than the one used in the above countries. If the objective of the law
is to provide an adequate legal protection to the orphaned grandchildren, it is submitted that the
scope should be widen up, at least similar to the situation in Egypt or Syria. This is further
supported that, the main references that are referred to by our judges in implementing the system
are Arabic writings from the Arab continents particularly from Egypt.
Secondly, the method of the distribution should be looked into as there are few different
methods applied by the courts in the Middle Eastern Countries. If it is not possible to include
everything in the statute, then there should be a policy or directive from the relevant authorities
on the preferred methodology. The judge should also be systematically exposed to those
methodologies due to their complexity. The implementation of the system should be based on the
deep understanding of the judges on the objective of such instrument.
Thirdly, the Middle Eastern Countriesâ legislation provide that if the praepositus had
during his lifetime execute a hibah to the orphaned grandchildren, and the amount is less than the
share that their parents should receive had they survived the praepositus, the court shall, through
the obligatory bequest, complete the amount accordingly. However, there is no equivalent
provision in the Selangor, Negeri Sembilan and Malacca Enactments. The absence of express
provision in this matter might suggest the syariah courts in Malaysia have a more limited
jurisdiction in this matter as compared to its Arab counterparts. It is, therefore, submitted that the
relevant provision should be amended to include the power of the court in this matter so that the
Enactments would be as competitive as other legislation in the world.
Fourthly, the law provides that if the praepositus has left a bequest to the orphaned
grandchildren but the amount is not up to the share of their parents had they survived, the court
shall complete it accordingly or to maximum one-third of the estate, whichever is less. With
respect, it is submitted that the provision should not be made mandatory as it would affect the
rights of the legal heirs. The court should be given discretion to apply it if it thinks that it is
reasonable, for example in case where the orphaned grandchildren are very much in need of a
financial assistance and the amount of the estate is very large and the shares of the legal heirs are
not severely affected. If the court thinks otherwise, for example the amount of the estate is very
small and the orphaned grandchildren are already financially stable, then there is no need to
invoke the obligatory bequest in order to complete the amount. In short, it should be based on
question of fact not question of law. However, there should be a special mechanism or guidelines
or supervisory committee on this discretionary power to avoid any abuse of power.
Fifthly, presently, the orphaned grandchildren shall enjoy the share of their parents
should they (the parents) survive the praepositus or maximum one-third, whichever is less. It is
also submitted that the discretionary power should also be given to the court in determining the
amount to be granted to the orphaned grandchildren. The issue should not only be determined
based on question of right only but also question of need. The court has to strike a balance
between the protection to be given to the orphaned grandchildren and the rights of other legal
heirs in inheritance.
Sixthly, the legislature should also detail out many issues relating to competition between
obligatory bequest and optional bequest. It is a settled law that the former would be given
priority over the latter but it is suggested that the provision should not be made mandatory in
case the maximum amount of one-third is exhausted by the former. The court should be given
15. 15
discretion, to certain extent, to harmonise between these two, within the limit of one-third estate,
so that both instruments could possibly be given the effect. The decision must be depending on
the need of the orphaned grandchildren and nature of the optional bequest. In other words, if the
orphaned grandchildrenâs right, through courtâs observation, could be compromised due to their
sound financial standing, the court could deduct a certain small portion from their share to be
contributed to the optional bequest. In this situation, not only the right of the orphaned
grandchildren is protected, the wishes of the testator praepositus in dealing with his property is
also respected.
All the above proposals could take effect with slight amendments of the present legal
provisions. The proposals, to certain extent, might look extreme as they upset the normal
application of the law not only in Malaysia but also in Arab countries. Nevertheless, the
provisions relating to the obligatory bequest are all based on the juristsâ ijtihad since the issue is
not addressed in al-Qurâan and al-Sunnah. It is an established principle that an ijtihad may
change from time to time, from one place to another depending on the need, maslahah and âurf
of a particular locality. Hence, it is submitted that the States in Malaysia could set their own
standard and methodologies in the exercise of this instrument60
like the practice in Islamic
Banking and Takaful where there are operational differences between Malaysia and the Arab
countries.
The syariah court judges who are going to implement this device are expected to be well-
versed on its application through sufficient exposure and trainings. The experiences and practices
of other Muslim countries which are more advanced in this area should be referred to. They
should also be well-informed on the latest implementation of the legal device in the other
Muslim countries so that their approach would be up-to-date.
60
Arab countries are known to be very conservative and that is one of the reasons why their laws are not very
difficult to be amended. It is not strange if their laws which were legislated 50 years ago remain the same today.
However, unlike our courts which rely heavily on the express legal provisions, their courts play a very active role in
interpreting the law and widening up their power and jurisdiction. That is perhaps another reason for their laws
remain quite general.
