Fairness with faraid

THERE’S a staggering RM90bil in unclaimed properties in Malaysia, a significant portion of which involves Muslim families (2022).

This vast amount represents a major economic opportunity lying untapped, tied up in complex inheritance disputes.

Unlocking these assets could potentially boost our economy by opening up available property, and resolving long-standing family tensions.

Islamic law of inheritance

Let us first understand for Muslims at least, why these properties remain stuck and how Islamic inheritance laws, or faraid, come into play.

Faraid dictates how a Muslim’s assets are to be distributed upon their death. It is compulsory for Muslims because, in Islam, a person does not have absolute ownership of their property.

Instead, they are considered trustees of their wealth, holding it in trust for Allah. Upon death, this wealth must be distributed according to faraid principles to ensure that all rightful heirs receive their due share.

There are, however, exceptions to the strict faraid distribution rules. A Muslim can distribute up to one-third of their wealth to non-faraid beneficiaries or make special arrangements, provided all faraid beneficiaries consent to these wishes (wasiat). Another workaround involves the concept of gifting (hibah), where a person transfers ownership of their property while alive.

However, with priority given to faraid distribution, it is not always straightforward and can lead to disputes. This includes faraid heirs disagreeing with the deceased’s wishes on wealth distribution and even if they agree, they cannot subsequently agree on how to handle the deceased’s property collectively.

For example, some heirs may want to sell a property, while others, possibly living in it, may resist. This can cause delays and conflicts, leaving the property unresolved.

Challenges and misconceptions

Why would the deceased want to alter faraid distribution?

In most cases today, it is to ensure equal share between genders and to avoid the legal issues of parts of the property going to siblings or parents versus their spouses and children.

This is where typical misconceptions about faraid, such as the perceived injustices from women receiving less than men in the calculation, add another layer of complexity.

Admittedly, I once shared this misconception until learning about Islamic inheritance law while undertaking my law degree at the International Islamic University Malaysia.

In truth, Islam views both genders as equally important but with different roles to play.

Under Islamic law, men are expected to provide for the women in their families. This includes mothers, aunts, nieces and sisters in situations where they are unmarried or subsequently lose their husbands.

Men receive more to support the family, whereas a woman’s share is solely hers.

Faraid reflects fairness within familial roles, reflecting a distinct perspective on equity.Nevertheless, faraid often gets a bad reputation today due to some male heirs who demand their rights but aren’t as quick to perform their responsibilities.

Couple this with the fact that Malaysia has 14 different jurisdictions managing Islamic law at the state level, various procedures and bureaucratic hurdles only cause more delays and frustrations.

This complexity makes navigating the process daunting for the bereaved and often leads to prolonged disputes.

A close friend of mine experienced firsthand the frustration of dealing with state offices over inheritance matters.

As an unmarried female who was recently orphaned and with no siblings to count on, she is not just left with resolving current disputes but also worried about what might happen upon her demise. This leaves her with a negative impression of faraid despite it being our religious obligation.

Reforms to resolve faraid

In a world where resources are increasingly scarce, we cannot afford to leave properties idle and let them become sources of family discord and negative perceptions of Islam.

It is time to rethink how we manage the faraid distribution and these assets for the benefit of the economy and society.

I propose setting a 12-18 month time limit for resolving property distribution under faraid, and upon failure to resolve the distribution or if any one of the heirs makes a request, the court or land administrator should be empowered to sell the property and distribute according to faraid principles.

It can be conducted through a public auction, with the government taking a small administrative fee. The property’s price would decrease progressively until sold, incentivising heirs to reach an agreement beforehand.

We can also utilise the Unclaimed Moneys Act mechanism to store the unclaimed money if family members cannot be identified, traced or refuse to attend the court proceedings.

The property sale can be halted by the family at any time by filing a mutual resolution, promoting family reconciliation.

Additionally, for male heirs receiving their share, the court should designate a minimum amount and a recommended amount to spend on supporting female heirs.

A mechanism must be established where female heirs can request the minimum amount of support in certain circumstances. Let’s ensure the faraid responsibilities are enforced alongside the rights.

Islam is simple and we owe it to our society to make things easier and more transparent.

By addressing the challenges around faraid and implementing practical solutions, we can reclaim the narrative that Islamic inheritance laws are about fairness and justice.

In doing so, we unlock significant economic value and strengthen family bonds, driving forward Malaysia’s growth and prosperity.

AMIR ISYAM ABDUL RAHIM

IM Possible Solutions Sdn Bhd

managing director and Tunku scholar