ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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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 obligatory 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
ORPHANgD GRANDCHILDREN IN ISLAMIC SUCCESSlON LAW 261 example, that it is more commendable to provide by legacy for a disabled infant rather than an adult well-settled in life and that these factors should take precedence over whether they are grandchildren or grand-nephews. If. on the other hand, obligatory bequests are based on the assumption that the propositus intended to provide for his orphaned grandchildren, this assumption can only survive in the absence of specific evidence to the contrary. But supposing the propositus actually made provision by will for his orphaned grandchild to the extent of, say, one-twelfth of his estate, then it is clearly absurd to assume that any oversight has occurred. He remembered his orphaned grandchild and provided one-twelfth of his estate for him on what, in the particular circum- stances of the case, appeared good and sufficient reasons. Yet the law, under the system of obl4gatory bequests, steps in after his death to alter his testamentary dispositions, raising the legacy to the grandchild to one-third of the estate (or the equivalent of the predeceased father's share, whichever is less) at the expense of other legacies or the living son of the propositus who may have been in greater need of the remaining 11/12ths. These are the contradictions which arise when the orphaned grandchild's provision is based on assumption or need instead of his rights. It is not difficult to imagine such good and sufficient reasons for the propositus acting as he did when the living son is physically handi- capped or mentally retarded while the orphaned grandson has attained his majority and has already received an adequate amount from his own father's estate. The system of obligatory bequests leaves unanswered the basis on which orphaned grandchildren are to be provided for. Are they provided for on the grounds that they are:close relatives of the deceased (inexplicably omitted, directly or by implication, in the Qur'snic verses on inheritance) whom it is inconceivable should be deprived of a portion of the estate because of this close relationship? Or, are they merely distant relatives who are to be provided for on compassionate grounds ? Either position raises serious difficulties when treated as an obligatory bequest. An obligatory bequest introduces an entirely new element into the very principles of Islamic succession. being neither a legacy nor an inheritance, neither testate nor intestate. and the unavoidable uncertainty about how it should be regarded is bound to raise in course of time far more difficulties than it.
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ORPHANED GRANDCHILDREN IN ISLAMIC SUCCESSION LAW

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