ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

260 KEMAL FARUKI
from the estate at the expense of the voluntary bequests made in
the deceased's will. Where such bequests had not been made, the
obligatory bequests, while affecting the quantified amounts to be
received by the heirs, would be extracted, it was thought, from the
estate in such a way as to be equitably borne by all heirs in
proportion to their portions. This appears to have been the
theory.
But this solicitude for the heirs has been achieved at the cost
of distorting the theory which lies at the basis of Islamic succession
law. It will be recalled that there are four distinct categories in
Islamic succession, namely funeral expenses, debts, legacies and
inheritances in that order of priorities. The Qur'an is quite
c!ear that inheritances are to be distributed only after "bequests"
and "debts" have been paid. Indeed because "bequests" are
invariably referred to before "debtsw4 in the Qur'an, there was a
difference of opinion in earliest times on whether they ranked
prior even to debts. Even after this was settled in favour of a
higher priority for debts, the problem frequently remained to
distinguish between a debt and a legacy. Not all legacies have
been considered equally meritorious and some are not encouraged
at all5, but certain types of legacies have enjoyed the highest
Islamic approval. Such meritorious bequests have included one to
make good deficiencies in zakiit paid by the deceased in his lifetime
or as expiation for prayers missed or Easts not kept as well as
bequests to the poor or for the building of a mosque or a bridge or
an inn for travellers. Bequests have been the last means for the
deceased to make amends as far as materially possible for any
shortcomings during life and in that sense are as valid today as they
were in the past for any one who believes in a hereafter and a day
of judgment. But now all such testamentary wishes of the deceased
have to take last place, in the system of obligatory bequests, after
the satisfaction of inheritance portions and obligatory bequests.
The question, in fact, remains unanswered as to the justifica-
tion for disregarding the last wishes of the deceased. Is it on the
basis of what the deceased ought to have done or what the
deceased must be presumed to have intended to do ? If the obliga-
tory bequest is regarded as a morally desirable step, the same is
also true of the other objects for which legacies are recommended,
particularly those which are given priority when the bequests
esceed the bequeathable one-third. It might also be held, for