To Bequeath or not to Bequeath? A South African Law Analysis of the "Problematic Areas" Found in the Islamic Law of Intestate Succession

Abstract

The fairness of the Islamic Law of compulsory succession remains a heavily contested issue all over the world. Frequently debated topics, referred to in this article as the "problematic areas", include the 2:1 division of inheritance in favour of the male, the disqualification of a child born out of wedlock and the exclusion of an adopted child from the Islamic intestate inheritance equation. This equation is found in the primary texts of the religion of Islam i.e., the Holy Qur'ān and Prophetic teachings. These texts contain a formula dictating how the assets in a deceased person's estate should devolve, with individual freedom of testation limited to only a third of the net estate. The position followed in South African law is vastly different to the aforementioned. This article focusses on these so-called problematic areas found in the Islamic law of intestate succession. Part One of this article demonstrates these differences through the use of a hypothetical scenario involving person X. This hypothetical scenario includes an investigation of all three "problematic areas" mentioned. The article further progresses to uncover the rationale for each of these principles. The concluding section of this article provides recommendations on the lawful remedies available to Muslim testators wanting to create a more equitable distribution.