ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW 259
be other orphaned children related to the deceased or other cases
of need amongst his relatives not close enough to benefit as heirs
equally entitled to enjoy the benefits of any system of obligatory
bequests that might be set up on this basis.
As long as tbe concept is preserved of a legacy being a
voluntary disposition by a Muslim of a certain proportion of his
estate the foregoing questions are not so pressing. The legator, on
the particular facts of his particular family, bequeathes legacies to
those deserving special consideration without it being necessary, in
the case of relatives, to determine whether they are close relatives
or not (in his own eyes or the eyes of the law). The test for a
justifiable legacy is primarily need and not the strength of the
blood-relationsbip. As long as bequests are voluntary dispositions
the beneficiaries will naturally and justifiably vary from case to case
and each such case is fully capable of keeping within the true
Islamic spirit regarding legacies. Thus where P dies at an advanced
age leaving one living son A and a grandson B by another
predeceased son C. the grandson being well over thirty at the time
of P's death and already well-provided for by his own father's
estate, it may well be that P should provide instead by legacy for
D, an infant or crippled grand-nephew. For legacies, almost by
definition in Islamic terms. are primarily for the needy rather than
the closely related.
But once this voluntary element from bequests is removed, it
becomes extremely important to base this third-party compulsion and
this alteration of the wishes of the deceased upon a consistent princi-
pleeither of need or of relationship combined with need. Otherwise
the system of obligatory bequests can easily become. in course of
time, a means wbereby a Muslim is deprived of dealing with one-
third of his estate in complete violation of the spirit of legacies.
Legacies are in fact. also almost by definition, voluntary dispositions
of a person's estate by will, and the phrase "obligatory bequest" is
(virtually) a contradiction in terms.
With these inherent difficulties in the system of obligatory
bequests, the question arises as to why it was adopted ? The
explanation seems to lie in the reformers having concentrated their
attention on trying to disturb the rights of the established heirs as
little as possible. Where other legacies to the extent of one-third
had already been made. the amounts to be received by the heirs
would not be affected at all; the obligatory bequests being extracted