INTRODUCTION
In Malaysia, the Syariah Court has exclusive jurisdiction to hear and determine all actions and proceedings in relation to the division, succession and inheritance of a Muslim’s testate and intestate estate. This is in light of Item 1 List II (State List) of the Ninth Schedule of the Malaysian Federal Constitution.
Grounds of permitting one from naturally inheriting under the Syariah Law in Malaysia are through marriage and blood ties.
a) Marriage
One of the basis for a person to inherit according to faraid (distribution according to Islamic law) is through marriage. However, the marriage must be valid and subsisting according to Islamic law. For Muslims, a marriage which ends with divorce is still considered subsisting provided that the divorce was a revocable divorce (talaq raj’ie – the pronouncement of divorce using explicit terms) and the husband dies within the waiting period (iddah). The waiting period (iddah) refers to the duration of 3 months after the divorce takes place. As such, if the husband dies within the 3 months period subsequent to the divorce taking place, the ex-wife shall be entitled to inherit from the estate of the late husband.
b) Blood Ties
Another ground to inherit a Muslim’s inheritance is through blood ties. In order to inherit, blood ties must be legitimate and formed through a valid marriage. The following are individuals who are entitled to inherit from a Muslim Deceased under the ground of blood ties:
(i) Father, grandfather how high so ever
(ii) Daughter, son’s daughter how low so ever
(iii) Mother, grandmother, how high so ever
(iv) Sibling
(v) Uncle
(vi) Nephew
POSITION ON THE ADMINISTRATION OF ESTATE OF A MUSLIM CONVERT (“MUALAF”)
BAITULMAL
In an ordinary situation, the abovementioned individuals would be able to inherit from the Deceased. However, if the Deceased was a convert whom had embraced Islam, the entire estate of the Deceased would essentially fall under the right of the baitulmal (religious charitable institution). If the Deceased was a Muslim convert whom had died leaving only non-Muslim heirs, the estate of the Deceased reverts to the right of the State, being the baitulmal as it becomes escheat. Baitulmal is a unit of the State Islamic Religious Council that manages the administration of state property for the benefit and welfare of Muslims in the country.
There are several authorities that uphold the aforementioned position under the Islamic Law in Malaysia which innately governs a Muslim convert.
a) Holy Scripture
One of the conditions in the Islamic law of succession is that the Deceased and the legal heirs must be Muslim. This is based on the following hadith reported by the companions of the Prophet (PBUH) that the Prophet (PBUH) had said that:
“A Muslim may not inherit from an infidel or an infidel from a Muslim.”
(Sahih Al-Bukhari, Volume 8, Book 80, No 756)
Notwithstanding, in relation between the mualaf (convert) and his non-Muslim family, Islam forbids severing relationship, especially with close family members, regardless of whether they are Muslim or not. This was explained in the Quran, Chapter al-Anfal, verse 75 to preserve family relationships which means: “…but those of [blood] relationship are more entitled [to inheritance] in the Book of Allah. Indeed, Allah is Knowing of all things”.
b) Case Laws & Statutes
The trend of case laws in Malaysia also shows that the courts in Malaysia strongly uphold the right of baitulmal to inherit the estate of a convert in the absence of any legal Muslim heirs.
In the case of Majlis Agama Islam Wilayah Persekutuan lwn. Lim Ee Seng & Satu Lagi [2000] 2 MLJ 572, the deceased had converted to Islam and he had never reverted to his original faith or embraced another religion prior to death. On the 27 August 1992, a letter of administration was issued in favour of the defendants, being the wife of the deceased under the civil law and his daughter. The plaintiff being a religious body claimed a declaration to revoke the letter of administration as it was null and void and that the estate ought to be given to the plaintiff. The defendant filed in a counterclaim for a declaration to be recognised as the administrators and representatives of the estate. The legal issue was whether the defendants had beneficial interest in the property of the deceased. The High Court in this suit allowed the plaintiff’s application and dismissed the defendant’s counterclaim. The High Court decided that the defendants had no beneficial interest over the estate of the deceased and thus were not entitled to inherit. As such, the High Court revoked the letter of administration granted to the defendants pursuant to section 34 of the Probate and Administration Act 1959.
In arriving at the decision, the High Court Judge referred to Section 2 of the Distribution Act 1958 which governs intestate estates in Malaysia. However, Section 2 expressly prohibits the application of this statute to the estate of a Muslim nor shall it affect the rules of Islamic law governing the distribution of the estate. As such, this shows that there is a clear distinction in regards to the applicability of the law towards Muslims and non-Muslims in Malaysia.
The High Court also made reference to an earlier High Court case In the Matter of the estate and effects of Timah bt Abdullah, the deceased; The Official Administrator FMS v Magari Mohihiko & Ors [1941] MLJ 51, which upheld the position that a non-Muslim is excluded from and cannot succeed to the estate of a Muslim. This translates and fortifies the position that under Islamic law, non-Muslim heirs are not entitled to inherit the estate of a deceased Muslim. The deceased in this suit was a Japanese lady who had converted to Islam to marry a Malay man. The deceased and her husband has passed away without leaving any children. The defendants were the mother and brother to the deceased who were non-Muslims. Hence, the court held that where a Muslim convert dies and the only next-of-kin are non-Muslims, the estate will go to baitulmal.
In another case of Re Mutchilin Alias Ashrhin, Deceased; Haji Mawar v AG [1960] 1 LNS 113, the Singapore High Court also upheld the decision of Timah as the deceased in this case was a Muslim whom had only left behind his widow and no other heirs. The court held that ¼ of the estate would be inherited by the widow while the remaining ¾ will go to the state (baitulmal).
Therefore, the law is clear that the estate of a Muslim convert will essentially fall to the state (baitulmal) if the Deceased had only left behind non-Muslim legal heirs. It should be noted that even if the non-Muslim heirs intend to apply for a letter of administration application in the civil courts, it likely that they will not succeed as the said application despite being granted may subsequently be challenged and revoked by the State Religious Authority under the basis of sufficient cause which will render their effort to be futile. This is pursuant to Section 34 of the Probate and Administration Act 1959 which allows the courts to revoke the letter of administration grant under the basis of sufficient cause.
REMEDIES
In view of the above, although baitulmal becomes the legal heir to the Deceased’s entire estate, there are certain options available to the non-Muslim heirs that may be explored in attempting to claim the right to the Deceased’s estate.
a) Debts
One of the modes to retrieve a certain portion of the Deceased’s estate if it can be proven that the Deceased was in debt. This is because, the payment of debt and liabilities are rights associated to one’s estate which must be settled before the distribution of the estate. Nonetheless, the burden of proof lies on the individual claiming to inherit to establish that the Deceased was in debt during his lifetime.
b) Wills
Non-Muslim beneficiaries intending to claim may also claim for a maximum share of 1/3 to the estate of the Deceased if they are able to prove that the Deceased had made a will prior to his death bequeathing his estate to them. Section 3 of the Muslim Wills (Selangor) Enactment 1999 recognises wills made orally or in writing. The said provision recognises the validity of an oral will provided that it was witnessed by competent witnesses. The witnesses shall be either 2 male witnesses or 1 male and 2 female witnesses as provided in Section 86 (5) of the Syariah Court Evidence Enactment 2006. The conditions imposed under Section 83 of the Syariah Court Evidence Enactment 2006 further states that the said witnesses must be Muslim, of sound mind, attained the minimum age of 18 years old, have a good memory, not be prejudiced and adil (carries religious obligations and duties and abstains from committing sins). The burden of proof lies on the individual claiming to inherit to establish that the Deceased had drafted a written will or made an oral will fulfilling the relevant requirements.
c) Jointly Acquired Property
Another mode for non-Muslim beneficiaries to claim for the estate of a Muslim convert (mualaf) mainly spouses, is through a jointly acquired property application. Jointly acquired properties are not only confined to the monetary value injected in acquiring the property but extends to the joint effort and contribution of either party such as by the exertion of effort, labor or time spent in acquiring the property and debts owed in acquiring the asset. This is in pursuant to Section 122 of the Islamic Family Law (Federal Territories) Act 1984. This principle can be observed in the case of Tarmizi Abu Hanipah v Zahara Saidin (2009) 28 JH (2) 277 where in determining the division of the matrimonial home, the court considered the direct contribution of the parties via cash as well as the indirect contribution from the parties such as the cost of repairing, modifying and payment of furniture.
Even though the statute is silent on the power of the Syariah High Court to hear applications for the division of jointly acquired properties, the Practice Direction No.5 issued by the Department of Islamic Judiciary Malaysia in 2003 allows for such claims. This is supported by a religious order (fatwa) gazetted in the state of Selangor which allows for the division of a jointly acquired property on the death of either party before the property is to be divided and distributed. This position has been illustrated in the case of Hajjah Saudah v Hanafi (1997) 11 JH 21 whereby the Chief Qadi gave a judgment in favour of the ex-wife who claimed a share in the jointly acquired landed properties registered in the name of her late husband.
Therefore, the burden of proof lies on the non-Muslim spouse to successfully prove that they had contributed financially and/or indirectly through various forms as mentioned above should they intend to apply for the division of the jointly acquired properties falling under the Deceased’s estate.
d) Appeal
As discussed above, the estate of the Deceased will naturally fall into the hands of baitulmal if he was a mualaf (Muslim converts) in the absence of any legal Muslim heirs. However, some baitulmal and State Religious Authorities in Malaysia have offered an alternative to this issue by allowing non-Muslim heirs to appeal to them in inheriting a Muslim deceased’s estate provided that the heirs fully cooperate and work alongside the religious bodies in acquiring the faraid (distribution according to Islamic law) order from the court.
There are certain cases in Malaysia as reported in the International Journal of Advance Research on the topic of Baitulmal Interactions In Resolving Converts’ Inheritance Claims In Malaysia whereby the baitulmal or the State Religious Authorities have accommodated and granted the appeals of the non-Muslim heirs against the inheritance of a deceased convert.
Based on the trend of appeal cases, it is known that baitulmal accepts claims made by non-Muslim family members after certain conditions and procedures are undertaken because baitulmal has a responsibility over the inheritance for the benefit of other Muslims. It is said that baitulmal may not reject the claims of non-Muslim family members who have reasonable grounds, in fact the non-Muslim family members may assist baitulmal in their investigation before the committee gives a decision on the claim. It should be noted that this process is strictly based on the discretion of the baitulmal and State Religious Authorities in Malaysia.
For instance, in 2019, it was reported that the Penang State Islamic Religious Council administration (MAINPP) had received an appeal from the parents of a deceased convert. The deceased was single and living with his family after converting to Islam. The deceased died and left behind his EPF savings which were acquired by baitulmal based on the order from the Syariah High Court. However, it was reported that the deceased owed money to a private moneylender. MAINPP had settled off the debt owed by the deceased and subsequently handed over part of the EPF money as a courtesy to the parents of the deceased convert.
In the state of Melaka, it was reported that one Lim Sek King had kept his conversion to Islam a secret from his non-Muslim family members and had left behind a widow and three children who were all non-Muslims. The law required for his estate to be handed over to baitulmal based on the Islamic law due to the absence of any Muslim heirs. However, on 10 May 2005, the Melaka Islamic Religious Council (MAIM) had decided to return a house worth RM59,000.00 to the widow as she was unemployed and had children who were still in school including one who was suffering from a severe illness.
Furthermore, in Kelantan, there was one Abdul Rahman King Abdullah who had left behind a vehicle which was still under a hire purchase loan paid monthly by the deceased’s non-Muslim father. On 11 April 2016, despite the Syariah High Court deciding that baitulmal was fully entitled to the property of the deceased, the Islamic Religious Council of Kelantan (MAIK) had no objection over the deceased’s father’s claim over the vehicle.
Nevertheless, there are certain pre-requisites that must be complied prior to appealing to the baitulmal and State Religious Authorities in Malaysia. Firstly, all the documentation in relation the Deceased and the Deceased’s estate must be in order and complete. This includes the identification documents, property agreements, vehicle grants, bank statements, legal searches, receipts and etc. (other documents upon the request of the religious bodies) which must be readily available. These documents will then be furnished to the State Religious Authority who will subsequently apply for a faraid (distribution according to Islamic law) order/certificate at the Syariah High Court due to the absence of any legal heirs.
Upon baitulmal receiving the order officially stating that they will be appointed as the legal heir to inherit the entire estate of the Deceased, an appeal application to the majlis (religious council) to receive a certain portion over the estate of the Deceased may be sent in. The appeal will be deliberated and decided by a special committee appointed by the majlis who will decide on the apportionment of the estate which varies according to case to case basis. Any outstanding debts and obligations of the Deceased will be resolved prior to the special committee deciding on whether they intend to retain or relinquish some or all rights over the estate.
It should also be noted that this form of remedy is subject to the discretion of the particular baitulmal and State Religious Authorities governing the assets of the Deceased that fall within their respective state jurisdictions. Thus, it differs according to state as some baitulmal and State Religious Authorities may or may not allow this method.