ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 25'1
in prescribed proportions to the nearest living members of his
family.
The position of legacies deserves closer attention. True, legacies
cannot exceed one-third of the estate left after the satisfaction
of funeral expenses and debts and at least two-thirds must be left
for the family of the deceased. It is also true that although the
legacies rank third in order of priority (i.e. before the heirs) there
is no elment of compulsion with regard to providing for them by
will. But these considerations cannot detract from the higher
religious merit (within the bequeathable one-third) which many
juch bequests possess ; the more so when his family is reasonably
provided for.
Finally. it is worth recalling once more that the basis on which
the fourth category-of heirs-are to be provided for out of the
estate emphasize the family as against the tribal relatives and
within the family, emphasize the immediate agnatic lineal family as
against the collaterals and the more distant kindred.
It is in this context that the system of obligatory
bequests and the system of inheritance by right should be
compared.
II. The System of Oblisatory Bequests
The fullest development of the system of obligatory bequests is
to be found in the Egyptian law of 1946 which applies to predeceased
daughters' children as well as those of predeceased sons.
Briefly the 1946 law provides that the propositus is obliged to
make a bequest in favour of grandchildren by any son or daughter
who has predeceased him (if they would not be entitled to any
share on intestacy) provided that this bequest does not exceed the
limit of one-third for legacies or the equivalent of the share of the
predeceased son or daughter whichever is less. Should the grand-
father fail to make such a bequest the court will act as if he had
and such an implied or obligatory bequest will have priority over
any voluntary bequests which the propositus may have actually
provided for in his will. The main Islamic authority for this
reform is stated to be verse I1 : 180 of the Qur'an which states :
"It is prescribed for you when death approaches one of you, if
he leaves behind wealth the (making of a) bequest for parents
and relatives equitably as a duty for pious."
In the earlier verses of the Fourth Siirah2 fixed shares are allotted