StarOnline, 11 April 2010.
BY SHAHANAAZ HABIB
When someone converts to Islam, the prickly issue of inheritance by his non-Muslim family members arises. But it needn’t be so if the convert is well informed on what he can do to provide for his non-Muslim family before his demise.
IN 1998, a year after M. Moorthy, who was in Malaysia’s first team to climb Mount Everest, returned from the expedition, he was paralysed from chest down.
He injured his neck while attempting a somersault over a barrier at the Sg Udang military camp in Malacca. For years, his wife S. Kaliammal nursed and took care of him.
In 2004, he converted to Islam but did not tell his family. He continued to live with his Hindu wife and practise Hindu rituals, including celebrating Deepavali.
The following year, Moorthy, 36 then, fell from a wheechair, slipped into a coma and died in hospital. It was only when the Islamic religious authorities came to claim his body to bury him as a Muslim that Kaliammal found out about her husband’s conversion.
Then there was another blow. Moorthy didn’t have a will and as a non-Muslim, Kaliammal and their child were not allowed to inherit his assets.
Only Muslims can inherit the assets of a Muslim.
But with a will, a Muslim can make a bequest of up to 1/3 of his assets to non-heirs (including non-Muslim family members who are deemed non-heirs) but Moorthy had died intestate.
Moorthy’s older brother, Sugumaran, who was married to a Muslim and had also converted to Islam, became Moorthy’s sole heir by virtue of the fact that he was the only surviving Muslim family member.
Fortunately for Kaliammal, Sugumaran handed it all to her and arranged with the religious authorities for his brother’s pension to go to her.
But many family members of Muslim converts have not been so fortunate.
Take the case of Lim Sek King aka Abdul Wahid Abdullah. The fireman converted to Islam in 1992 without telling his family and four months later, he died while crossing a swollen river to rescue 49 campers trapped near the foothills of Gunung Ledang.
He had no will and left his non-Muslim wife Ng Giok Song, and three young children aged five, 12 and 14 in a quandry.
Wahid’s estate worth RM100,000, comprising a medium-cost house, a low-cost house, EPF and some savings in the government co-operatives, went to the Malacca Islamic religious council (MAIM).
(When a Muslim convert dies, if there are no Muslim heirs, his assets would be placed with Baitul Mal which is the treasury body of the states’ Islamic religious councils.)
The Wahid Abdullah case surfaced 13 years later in 2005 when his non-Muslim family, who had become destitute, appealed for their father’s assets.
Wahid’s wife, Ng, had been working three jobs to support the family and their eldest child had Sturge-Weber Syndrome, a rare debilitating disease. And the second son had been helping out by washing dishes in a restaurant from the age of 12 (when the father died).
When the situation was highlighted by Bandar Hilir assemblyman Goh Leong San (from DAP) at the state assembly, the Malacca Chief Minister Datuk Seri Ali Rustam took it up and as MAIM chairman, proposed that half of Wahid’s estate be given to the family in the form of a donation.
So it took political intervention to help the family.
For Rafie Omar, CEO of AmanahRaya Legacy Services Sdn Bhd, which is the country’s premier trustee company and the main body drawing up wills for Muslims, Wahid’s case shows “the greatness of political power”.
“It is a clear-cut example of how justice has been served with the knowledge and wisdom of the umarak (leader). It is laudable,” he says.
But some may argue that when a family is as desperate as Wahid’s, should the members have to settle for just half the assets? No, they don’t have to settle for half if the convert in question had done the needful to provide for his family.
He can bequest up to 1/3 of his assets to his non-Muslim family members upon his death. But he can, while he is alive, give them all his assets.
He may also choose to set up a trust fund to take care of his non-Muslim family and ensure his pension goes to them after he is dead.
Question of being fair
But the key factor is that the convert must take the necessary measures to provide for his or her family before he or she dies.
Thus information provided to Muslim converts is crucial.
Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz says it is only fair that converts to Islam be told, before their conversion, about the faraid system (Muslim law of inheritance and distribution) and how it is going affect his non-Muslim family.
“Otherwise non-Muslim relatives might be aggrieved by his conversion which I think is not fair,” he adds.
“If you spend 20 or 30 years with your non-Muslim family, you must do the needful,” he adds.
Perkim secretary-general Tan Sri Dr Hamid Othman shares his views and says that the time has come for religious officers to do more.
It is their duty, he says, to inform would-be converts on the intricacies of the faraid law and advise them before conversion to distribute their assets to their non-Muslim family. They should also be told they can write a will to bequest one-third of the assets to their non-Muslim family.
“Don’t hurt the family you leave behind. Provide for your children and your parents. Your responsibility towards them doesn’t disappear when you convert to Islam. So give while you are alive,” says Dr Hamid who was formerly a minister in the Prime Minister’s department who held the religion portfolio.
But what happens if there is a fall out with his non-Muslim family upon his conversion and both sides are not on amicable terms?
“Religious officers have to ask questions when a person wants to embrace Islam and not merely say ‘welcome welcome’,” he adds.
He says they should find out if the reasons for conversion are genuine or if the person is using it as a means to run away from his responsibilities and escape his non-Muslim family.
He stresses that it is important to enter Islam peacefully and to leave one’s old religion peacefully – with no hostilities or hatred.
Nazri makes another point.
He says the religious councils should be more amenable when it comes to dealing with non-Muslims.
“As far as the religious council is concerned, the person has converted and that’s it – ‘he’s ours’. They forget about everything else. They think what happens to his non-Muslim relatives is not our problem. My personal view is that it is wrong.
“Islam is about spreading the religion, opening up, all embracing. It should be amenable. How can Islam be unjust to non-Muslims when Islam is a religion of peace?” he asks.
For him, the religious officers have a duty to ensure that Islam is just and also seen to be just to the non-Muslim relatives.
“Baru nampak Islam tu adil (Then the others will see Islam is fair).”
And in cases like Wahid Abdullah, he says, the council should play its role and help the family.
“It shouldn’t be that they (non-Muslim family) have to fight. The religious council should be the mitigator and not just think of the Muslim only,” he adds.
Concurring, Dr Hamid says that Baitul Mal can play a compassionate role towards the non-Muslim families of Muslim converts.
“They can help on a humanitarian basis. For example, they can let the (non-Muslim) family continue to live in the house of the convert after his death,” he says.
But why can’t non-Muslims inherit from Muslims? What is the rationale for this?
Prof Dr Mohammad Hashim Kamali, chairman and CEO of the International Institute of Advanced Islamic Studies (IAIS), says the Quran does not actually lay down a specific rule on the matter.
Obstacle to inheritance
The ruling, he says, originated from a clear Hadith: “A Muslim cannot inherit from a non-Muslim, nor can a non-Muslim inherit from a Muslim” which made religion an obstacle to inheritance.
He explains that the Hadith came about after Prophet Muhammad’s migration (Hijrah) from Mecca to Medina and after years of bad relations and persecution he suffered from the pagans of Mecca.
He says the Hijrah brought about a decisive rift between Muslims and non-Muslims, and then in Medina, the first Muslim community emerged.
“I guess it was to some extent related to a kind of boycott with the idolators that religion was made an obstacle to inheritance. Also there may be a question of identity as Islam emerged at a time when Christianity and Judaism were already well-established,” he said, adding that Muslims, however, can still bequest and hibah (give) to non-Muslims.
Prof Hashim also aptly points out that Prophet Muhammad himself had non-Muslim relatives. And was in fact raised by his uncle, Abu Talib, who till the end did not embrace Islam, although he was very supportive of his nephew, Prophet Muhammad.
Prof Hashim notes that there is a problem when a person dies intestate, resulting in injustice. In some countries like Egypt, he adds, the court assumes a bequest has been made even if it has not because the main concern of the Syariah (Islamic law) is justice.
In that context if such a provision is applied here, then even without a will, a non-Muslim family might be able to receive about 1/3 of their Muslim family member’s assets.
“If that is the only family that you have – and if you are convinced on the issue of fairness and equity – what are you doing with the other two-thirds of the assets?” asks Prof Hashim.
He says it is within the rights of the religious authorities to hibah the assets as a goodwill donation to the non-Muslim family if they are in need.
“Sometimes there is a need to get out of the box and not be tied down too much by technicalities of existing rules,” he says, adding that in Islam, the principle of justice and ehsan (goodness and fair dealing) is always important.
In cases of manifest unfairness, the principle of istihsan (juristic preference) can provide a way out.
“We would need to look into the realities of what they face and open the scope. If they have a good case, then we should fight for them,” he adds.
So is the reverse also true? That Muslims cannot inherit from non-Muslims?
The Muslim jurists are divided on this.
The practice here and in a number of countries is that Muslims can inherit from non-Muslims.
In Malaysia, non-Muslims come under the Distribution Act, so whoever they name as their beneficiary will receive whatever is willed to him.
But because there are opposing views, there have been cases where a Muslim convert took care of her Christian mother until death but was told by the religious authorities here that as a Muslim she is not entitled to inherit from her Christian mother and that her two Christian sisters who were living in Australia were her mother’s only heirs.
Hopefully, with the setting up last week of an inter-faith committee where experts from different religions sit down together to find solutions and a framework for better understanding, more issues could be resolved.
In future, there may be fewer cases like Moorthy and Wahid Abdullah and these would be quickly and fairly sorted out. And all sides will come out feeling satisfied.
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