islamic law of inheritance (faraid) in malaysia
TRANSCRIPT
GROUP ASSIGNMENT OF THE APPLICATION OF ISLAMIC LAW OF INHERITANCE (FARAID) IN
MALAYSIA
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1.0 ABSTRACT
As the increment demand for islamic inheritance (faraid) distribution service in Malaysia,
there are also show of how much the Malaysia muslim understand the application of faraid
was work in order to distribute the movable and immovable asset of deceased to the legal
heirs and others dependants. This assignment is concerns about the faraid, a special
inheritance law in Islam that is differs from other civil inheritance law in the world and it is
also was enacted under the Malaysia Shariah Law. Besides, the valid evidences or proofs
from quran and sunnah especially from the verses on faraid in the Surah Al-Nisa’ will be
discussed as to support the benefit to practice faraid for muslim wealth distribution. This
assignment also will show of the importance of faraid by how it was successfully helps the
parties of inheritances distribution. The explanation of faraid will be more particularly
narrow of scope by looking the role of Malaysia shariah court in processing and managing
the faraid issues besides looking the real scenario of the Malaysian muslim’s faraid practice
and their experiences in handling the faraid process. On the other hand, the modern issues
experienced by the Malaysia muslim regarding to this inheritance will be explained more as
to get a proper understanding of how the efficiency solutions were taken place by the parties
involved in the distribution of deceased estate.
2.0 INTRODUCTION
Malaysia is a multi-culture country with guarantee the freedom of religion to the folk. The
existence of shariah law in this country only limit for the muslim in matter such as
inheritance, divorce, religious conversion and custody. However, Malaysia shariah law had
established the positive practices of Islamic law of inheritance (faraid) by Malaysia muslim.
Before Islam was introduced by Prophet Muhammad saw, the Arab world was tied with
the unjust inheritance distribution with female beneficiaries, mothers, daughters and wives
were not given a right to the wealth besides women themselves can be part of estate, who are
the subjects to be divided in inheritance. The inheritance only can be divided among the men
as they are the symbol of family rescue. After the arrival of Islam, the faraid system was
introduced to overruled the old jahiliah inheritance laws by consider all the parties who are
qualified to receive to deceased’s estate.
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Faraid systems were the complete, comprehensive and just for every heir, beneficiaries
and other parties who have a right on the deceased wealth. There are many verses in the
quran which described about the faraid, with some of them were explained specifically by
Allah SWT such as in the Surah Al-Nisa verses 11, 12 and 176 besides there were also some
hadith from Prophet Muhammad saw that mentions about it. For example, one hadith
narrated form Imam Al-Bukhari, Prophet Muhammad saw said “Give the appointed portions
to those entitled to them. Then whatever remains is for the nearest male”.
In Malaysia, the traditional Malay muslim such as Naning in Melacca and Negeri
Sembilan had a conflict which still uphold indigenous laws called Adat Pepatih by which the
wealth should be inherit by women besides ancestral property cannot be divided. However,
after a some time, every state in Malaysia provide a clear and valid administration of shariah
regarding to the faraid, for example, Administration of Islamic Law (Selangor) Enactment
2003,Section 61, 61(3)b. viii that stated about the division and inheritance of testate or instate
property.
As a conclusion, muslim should have a deep understanding about the faraid concepts
because it is among the complicated knowledge in Shariah besides to escape from any
disputed of deceased estate because of lack understanding about how the faraid process and
applications take place in real scenario.
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3.0 DEFINITION OF FARAID SYSTEM
Generally, Islamic inheritance system is comprised of a number of micro institutions which is
fara’id, bequest and gift (hibah). Fara’id can be defined as the Islamic law of inheritance or
the Islamic law succession, which is one of the most important branches of Islamic
jurisprudence. This make the study of the fara’id as an important core of the Islamic
inheritance is inventible. Besides that, fara’id also can be interpret as the section of the
Islamic law that deals with the distributions of the estate of a deceased person among his
heirs in accordance with Allah s.w.t decree in the Al- Quran and according to the Hadith or
the tradition of Prophet Muhammad s.a.w. A substantial part of fara’id and the section
governing the distribution of property among heirs are provided for in the Al- Quran, only a
smart part is determined on the basis of Hadith and Ijma’.
In Arabic, the Islamic law of succession is known as ‘al- fara’id’ (الفرائض ), which
literally means fixed portions. Technically, the term denotes the quantum of shares allotted to
the legal heirs as determined by the Shariah. The knowledge of the fara’id is to do with the
principle regarding determining the legal heirs, their quatum of shares, the impedements and
the causes of inheritance and the classifications of the legal heirs. The principles and the
conditions regarding the devolution of a deceased Muslim’s estates are deduced from the Al-
Quran and Sunnah. The Islamic law of inheritance also can be said as the comprehensive
inheritance distribution system similar to other fields of Islamic law. The comprehensive
manifestation of this law can be seen in several aspect such as reasons for inheritance, the
determination of rightful beneficiaries, and the portions they should receive, the filtering of
the beneficiaries using the al-hajb doctrine, the apportion of inheritance to a foetus, khunta
and maqfud, and also takharuj doctrine.
The Islamic Inheritance Law ( Fara’id ), has been pre-ordained by Allah s.w.t in a wise
and gradual manner in order to allow for its compatibility with the judiciary and human
nature which might find it difficult to change the normal practices. At the early stage, Islam
perpetuated the inheritance laws of the Jahiliyyah, a temporary system based on the kinship
and Hijrah. The system was then overruled and replaced by the inheritance distributions by
will system (wasiat) to parents and kinsfolk based on verse 180 from surah al- Baqarah. This
is because, before Islam, especially during the time of ignorance of divine guidance (
jahiliyyah), daughters, wife, mothers and others female beneficiaries, were not given any
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right at all in inheritance distributions. Similarly, for the children who have not reached the
puberty were not given any inheritance rights. At that time the inheritance was only
applicable to men who could defend their families and tribes from the enemy attack.
The inheritance distributions were only based on the heredity (for adult man), agreement
and the foster children. Moreover, the property as a whole passing to the nearest agnate,
female relatives would receives nothing. At the final stage, all previous system were
abolished and replaced with the current Islamic inheritance law. The law was derived from
the commandments of Allah s.w.t based on the Mawarith verse which are verse 11,12, and
176 of surah al- Nisa’. The Islamic Inheritance Law today is a complete and comprehensive
system for the rightful beneficiaries, the portions for each beneficiaries and all non- rightful
beneficiaries to the inheritance using al- hajb doctrine or method. After the decsent of the al-
Mawarith verses, Islamic inheritance law introduced a reformation in inheritance law, where
women are recognized by Islam by giving them the legal status of beneficiaries and their
specific shares in the inheritance are determined. Allah s.w.t has determined the rulings and
methods to distribute inheritance among all beneficiaries with the purpose to act fairly to all
levels of beneficiaries and to avoid discrepancies among them.
The principles and liabilities in Islamic inheritance distributions specify that inheritance
in Islam will not take place unless the reasons for the inheritance and the three pillars
coincide which include al- muwarrith, al- wraith and al- mauruth. Al- Muwarrith is when a
benefactor dies, whether genuinely, taqdiri or hukmi. Al-Warith is a benefeciaries who will
receive an inheritance and is required to be alive during the demise of the benefactor,
whether genuinely, taqdiri or hukmi. While, al- Maurith refers to the inheritance of wealth
owned by the benefactor, be it liquid or solid wealth and all rights associated with the wealth.
Islamic inheritance law (fara’id) determines four reasons for the inheritance which is
consanguinity (nasab), marriage, wala’ and Islam (Baitumal).
Although four reasons for inheritance have been met, the distributions of inheritance will
not occur unless the conditions are met in full which is, the benefactor had died either
genuinely, hukmi or taqdiri, all beneficiaries must exist or alive, either genuinely or taqdiri,
at the time of the benefactor’s demise and lastly, aware of the status and rightful shares for
the beneficiaries and there is no inheritance obstructions such as murder, slavery, and
differences in religion. According to the Islamic Inheritance law (fara’id), when the pillars
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and conditions have been met, the inheritance is subject to a few liabilities or responsibilities
that must be fulfilled by the beneficiaries before it can be apportioned according to the
fara’id distributions.
On top of that, Islamic Inheritance Law (fara’id) has clearly and comprehensively
determined that the beneficiaries are entitled to receive a portion of the inheritance and their
respective portions as described in the al- Quran. Beneficiaries grouping can be categorized
into three types, namely, ashab al- furud, asabah and dhawi al- arham. The entitlement of
each recipient to the estate is based on their legitimate relationship with the deceased. Islamic
law has established specific criteria that must be met for a relationship to be legitimate and to
enable the survivor to inherit from the deceased. This implies that Islamic Law does not
recognize all relationship as capable of constituting the basis of inheritance. Besides that,
Islamic Inheritance Law also determines the rights to inherit for a few specific groups which
include the foetus in the womb of its mother, khunta, and mafqud. The Islamic Inheritance
Law, as a comprehensive system, protects the rights of these groups and ensures the justice to
them.
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4.0 EVIDENCE VERSES ON FARAID BASED FROM QURAN (SURAH AL-NISA’)
AND HADITH
Fara’id is based on the al-Quran, al- Sunnah, the consensus of the Prophet’s Muhammad
s.a.w companions and their Ijtihad (the process of making a legal decision by independent
interpretation of the legal sources, Al- Quran and Sunnah) but the two main point sthat will
be discussed is the verses of Fara’id according to the Al- Quran and Sunnah.
4.1 The Verses In Al- Quran
From the Qur’anic perspective, verses on Fara’id or the islamic law of inheritance is
one of the verses expressly revealed and explained in detail with regards to the rights
and entitlement of each legal heirs. No other religious book or divine sources
containing the code of distributions is as specific and pricise as in the Quran. In fact,
Fara’id is explained in very clear terms in the Quran as compared to prayers, religious
dues and pilgrimage. There are several verses that explained about Fara’id.
4.1.1 Surah al- Nisa’ (Verse 11)
“Allah (thus) directs you as regards your children’s (inheritance) : to the
male, a portion equal to that of two females : if only daughters, two or
more, their shares is two- thirds of the inheritance; if only one, her share
is a half. For parents, a sixth share of the inheritance to each, if the
deceased left children; if no children, and the parents are the (only) heirs,
the mother has a third; if the deceased left brothers(or sisters), the
mothers has a sixth. (The distribution in all cases is) after the payment of
legacies and debts. Ye know not whether your parents or your children are
nearest to you in benefit. These are settled portions ordained by Allah;
and Allah is All Knowing, All Wise”.
The verse above explains on the rights and entitlement of the
following legal heirs: sons, daughters, mother and father. And the
entitlement are to be distributed only after legacies and debts are settled.
4.1.2 Surah al- Nisa’ (Verse 12)
“In what your wives leave, your share is a half, if they leave no children;
But if they leave a child, ye get a fourth; after payment of legacies and
debts. In what ye leave, their share is fourth, if ye leave no child; but if ye
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leave child they get an eight, after payment of legacies and debts. If the
man or women whose inheritance is in question, has left neither
ascendants nor descendants, but if more than two, they share in a third;
after payment of legacies and debts; so that no loss is caused( to anyone).
Thus is it ordained by Allah; and Allah is All Knowing, most Forbearing”.
This verse explains about the rights and entitlement of the
following legal heirs: Husbands, wife and in the absence of children,
uterine heirs (from the same mother but different father). And the
entitlements are to be distributed only after legacies and debts are settled.
4.1.3 Surah al- Nisa’ (Verse 176)
“They ask thee for a legal decisions. Say: Allah directs (thus) about those
who leave no descendants or ascendants as heirs. If it is a man that dies,
leaving a sister but no child, she shall have half the inheritance: if (such a
deceased was) a woman, who left no child, her brother takes her
inheritance: if there two sisters, they will have two-thirds of the
inheritance (between them): if there are brothers and sisters, (they share),
the male having twice the state of the female. Thus doth Allah makes clear
to you( His law), lest ye err. And Allah hath Knowing of all things”.
This verse explains on the rights and entitlements of the following
legal heirs: brothers and sisters of the deceased. And the entitlements are
to be distributed only after legacies and debts are settled.
4.2 The Verses In Hadith
From the Hadith or Sunnah, there are several verses about Fara’id that have been
discussed by the Islamic Jurisprudence such as al- Bukhari and Muslim.
4.2.1 Hadith by Sahih Bukhari
Abu Huraira narrated that Prophet Muhammad said, “I am more closer to
the believers than their own selves, so, whoever dies while being in debt
and leaves nothing for its repayment, then we are to pay his debt on his
behalf and whoever dies leaving some property, then, the property is for
his heirs”.
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(Volume 8, Book 80, Number 723)
4.2.2 Hadith by Sahih Bukhari
Ibn Abbas narrated that, Prophet Muhammad s.w. said , “ Give the Faraid
to those who are entitled to receive it, and then whatever remain, should
be given to the closest male relatives of the deceased”.
(Volume 8, Book 80, Number 729)
4.2.3 Hadith by Muslim
“Give the shares to those who are entitle to them, and what remains over
goes to the nearest male beneficiary”.
4.2.4 Hadith by Tirdmizi and Ibn Majah
“One who kills a man cannot inherit from him”. From this hadith, all the
jurist agree that intentional or unjustifiable killing according to the
Shariah is a bar inheritance because if such people are allowed to kill and
then benefit from estate of the victim, it will encourage incidents of
homicide”.
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5.0 THE IMPORTANCE OF FARAID SYSTEM
5.1 Empowering Women to Involve in Economic Activities
In Islam there is no gender bias between men and women, which is also evidenced in
Islamic Laws of Inheritance. Equality is not equal to sameness or identical, just like
people are created equals to each other but not identical. There is no space to assess
that men is superior to women. Islam gives women equal rights, because Islam takes
women into consideration and recognized them as independent. Islam has recognizes
woman to be given a share of inheritance, despite of acknowledgment that a woman
is recognized as independent human being who is treated as an essential part of
humanity survival.
“And women shall have rights similar to the rights against them, according to what is
equitable; but man have a degree (of advantage as in some cases of inheritance) over
them”
(Al Baqarah 2:228)
Through Faraid, Islam empowers women to involve in complex activities of
economics, and together with men develop the social welfare of the society. God
knows best what is good for women and what is good for men in exact way.
5.2 Protecting the Property Rights
“Property right in Islam could be divided into three categories; public, state and
private” (Sait & Lin, 2006). Public property could be converted to the private
property. In case of Faraid, in addition to rules related to the will and bequest, Islam
also guarantee the distribution of a man after his death are transferred to the right
party, with a justice share portion. The property that put under waqf could be properly
managed.
5.3 Safeguarding the Justice in Wealth Re-distribution
In Islam the re-distribution of wealth can be done by Zakat and Faraid. “The nature of
wealth defines in Islamic code of law which is absolute ownership of everything
belongs to Allah who has created everything, including wealth in its different forms
that are possessed by people” (Sadeq, 2002).
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5.3.1 Establishment of a Practicable System of Economy
This is the first object of distribution of wealth. The economic system
without any force allows every individual to play the role in a normal way.
An indication for this principle can be found in the Al Quran in the
following verse:
“We have distributed their livelihood among them in worldly life, and
have raised some above others in the matter of social degrees, so that
some of them may utilize the services of others in their work.”
(Az Zukhruf 43: 32)
5.3.2 Enabling Everyone to Get What is Rightfully Due to Him
Islamic wealth distribution system assures everyone to get his or her
rights. Allah who sets up the rules how to use the wealth makes obligation
to help the others such as the poor, helpless and the needy. Therefore,
Islam proposes to do distribution of wealth in such a proper manner so that
all those people receive their share.
5.4 Encouraging Economic Growth and Creates Proper economic Order
Islamic inheritance law (Faraid) is a tool in achieving a wide distribution
of wealth to reach a just socio-economic society. The importance of
learning and teaching of Faraid stated in the hadith of the Prophet (SAW):
“Learn Faraid and teach them to people for it half of know knowledge and
it will be forgotten and the first to be taken up from my community.”
Faraid set of rules, inheritance distribution covers four generations
of family from grandparents, parents, children, and grandchildren
therefore it can influence society in economic aspect from rising equality
of woman right, protection of property right, and the ultimate purpose to
preserve financial welfare through redistribution of wealth and social
justice.
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6.0 ROLES OF SYARIAH COURT IN FARAID
Generally, in Shariah court heirs or their representative has to fill in an application form
Faraid Certificate of Application for Inheritance. With the form, they have to submit the
copies of the following documents:
Applicant's IC
Death Certificate
Marriage Certificate
The heirs Birth Certificate and/or ICs
Statement of accounts (savings, bank, Tabung Haji, Korperasi)
Registration fee of RM 20.00 (depends on the Shariah court)
Other relevant documents:-
Ensure that the Shariah court takes into account the following deductions from the
estate of the deceased before distributing the estate according to Faraid:
The funeral expenses for the burial of the deceased is paid for by the estate of
the deceased.
If the deceased leaves behind debts upon his death, those debts must be settled
as a priority. This includes payment of zakat (title) which is not yet fulfilled.
Gets share of matrimonial assets (Property Acquired out of Joint Effort) from
the estate of the deceased.
If death has left a will, then the will must be executed after all the above
matters have been settled. However, the execution of the will is subjected to
the following:
- The will was not made for inheritors/heirs. Wills made for inheritors are
void.
-Wills are valid only to the extent of one-third of the total net estate.
As for the division of the estate and the relationship of other persons qualified to inherit
from the estate of the deceased, consult the Sulh Officer at the Shariah court. Since Shariah
Law differs from state to state, ask for the relevant forms, documentation and procedures that
have to be fulfilled from the Shariah court.
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7.0 ISSUES IN FARAID
7.1 Matrimonial Assets
Matrimonial assets is not related with the distribution of faraid. This is because, it is
one of the responsibilities before distribution of inheritance. Matrimonial assets
means the assets jointly acquired by husband and wife during the subsistence of
marriage in accordance with the conditions stipulated by the Shariah law.
It also as the right for husband or wife which will be obtained through claim in
court. Claim can do in two situation which after divorce and after death of her
husband. Claims after divorce can be do by both parties, which each of them will get
half of the total property and for the claims after death will be do before distribution
of faraid. That’s means, the division of matrimonial property shall be given in
accordance with the extent of the contribution, either directly or indirectly, from both
sides. In addition, his wife is also entitled to the estate of her husband through the
division of inheritance.
7.2 Insurance and takaful
Before takaful or insurance compensation money is divided according to the law of
inheritance, the rights and debts of the deceased must be paid in advance to ensure
that all the debt obligations of the deceased and the deceased man with God has
granted. And then the money will be distributed according to the law of inheritance is
based or the consent of the beneficiaries.
As a nominee, it is merely a trustee who will administer the distribution of
property by means of inheritance is. If the beneficiary does not feel qualified trustee,
the beneficiary can challenge the position of trustee in the court process and the
distribution of takaful or insurance compensation money would be more complicated.
7.3 KWSP
KWSP is an inheritance that must be distributed according to the law of inheritance is
because it is private property and only contributors who have an absolute right on the
money.
Fatwa of the National Council for Islamic Religious Affairs Malaysia was the
49th of 10 September 2000, explaining that KWSP money and save money is the
estate that must be distributed according to the law of inheritance is, and the nominee
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of the organization are the executor or administrator of the estate, which shall divide
it in the transaction, and the Legal Division of the Malaysian Islamic Development
Department (Jakim) shall advise the Company to revise the regulations and existing
laws on naming to be consistent with Islamic law. Rulers was 96th in September 1973
issued a fatwa opinion as follows:
"Nominee EPF savings post office, banks, insurance companies and the joint venture
is a person who performs or executor of the deceased's will. They can receive money
from the deceased to be divided into those who are eligible according to the division
of inheritance is".
7.4 Gratuity
Gratuity is not an estate. This is because it is only a gift to the members and children
of the deceased who was a child or anyone other beneficiaries designated in
accordance with the laws / regulations because it is a temporary relief to them that in
spite of suffering after death is the main person in the family it. Not be entitled to the
other heirs to claim any part of it.
7.5 Pension
Pensions are not included in the estate. Therefore it can not be distributed to the heirs.
This is because pensions are government grants to employees who have been with the
government, and if the employee dies, the right to receive pension is a wife or
husband.
According to Article 27 (1) of the Pensions Act Statutory Authorities and Local
1980 (1980 Act), the deceased's pension is payable to the dependents of the deceased
without the need for a power of attorney. However, when it was included as an
inheritance, pension recipients shall be distributed to the beneficiaries in accordance
with the Laws of Inheritance.
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8.0 CONCLUSION
Faraid is a special inheritance systems which applied by all muslim over the Islamic
countries. Its principal was originally same from about 1400 years ago, the initial time of
Islam introduction until now. In Malaysia, faraid was enacted by shariah laws and governed
based from Shafi’e school of thought besides accepting the other Islamic school of thoughts
that valid in Islam.
There are so many evidences about faraid and it all had stated clearly and mentioned
specifically in the primary sources of Islam such as in Quran and sunnah. It means that, Allah
SWT authorized it to be practiced by all muslim as to ease and to be justice when distribute
the deceased estate besides to celebrate all the close and far relations of family members who
are qualified to get the wealth.
Faraid system bring a big role after the death of deceased as it would effects the life and
future activities of deceased legal heirs and other dependants. A short as possible process of
faraid distribution very important to take to make sure the unlock astate would benefit and
help the legal heirs and other dependants to survive well by using the movable and
immovable asset that have left by the deceased during his/her lifetime.
Even shariah laws in Malaysia was specifically detailed about the faraid matters,
however, there are some issues regarding to its distribution especially for the status of faraid
in the matrimonial assets because of the different enactments in different states in Malaysia
regarding to the faraid laws. There are also confusion, conflict and disputes which haunting a
few of the Malaysia muslim about some of the faraid issues such as the insurances, KWSP,
gratuity and pension that only arise after the death of deceased.
As a conclusion, a deep understanding should be owned by all muslim about the faraid
system and it applications, not only studying because of deceased estate interest, to get a
bright chance for future work or for other self-interests, but a huge effort should be taken to
broader our knowledge of the this system else to find the wisdom and reasons of why Allah
SWT authorized this faraid system to humankind.
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9.0 REFERENCES
9.1 Book
Cederroth, S.D; Sharifa Zaleha Syed Hasan (1997) Managing Marital Disputes in
Malaysia: Islamic Mediators and Conflict Resolution in Shariah Courts,
Surrey, Routledge Curzon, pg 46
Amir Bahari (2014) Islamic Estate, Retirement and Waqf Planning, Kuala Lumpur,
IBFIM, pg 42, 43,139, 141,175&194
Alexander David Russel & Abdullah Al- Ma’mun Suhrawardy (2008), Muslim Law:
A Historical Introduction To The Law Of Inheritance, New York, Routledge
Library Edition, pg 2-4
Sadeq, Abu Al-Hasan. (2002). A Survey of The Institution of Zakah: Issues, Theories,
and Administration. Jeddah: Islamic Development Bank, Islamic Research and
Training Institute.
Sait, Siraj & Lim, Hilary (2006). Land, Law and Islam. London: Zed Books Ltd.,
page 11-35.
Adelina Zuleika, N. P. (n.d.). Islamic Inheritance Law (Faraid) and Its Economic.
Tazkia Islamic Finance and Business Review, page 105-111.
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m
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http://etheses.dur.ac.uk/731/1/ISLAMIC_ESTATE_PLANNING_ANALYSING_TH
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Tn. Hj. Wan Abd Halim. Isu-Isu Pembahagia Harta Pusaka Orang Islam Dalam
Konteks Perundangan Malaysia. Retrieved on 26/10/2014 from
http://www.islam.gov.my/sites/default/files/22.pusaka.pdf
Selepas Perceraian : Apakah Hak Wanita Yang Perlu Dituntut . Retrieved on
27/10/2014 from http://www.islam.gov.my/en/selepas-perceraian-apakah-hak-
wanita-yang-perlu-dituntut
Wang Pampasan Insurans. Retrieved on 27/10/2014 from
http://www.e-fatwa.gov.my/fatwa-negeri/wang-pampasan- insuran-0
Wang insurans tidak ikut syarak bukan harta pusaka Retrieved on 28/10/2014 from
http://www.takaful.biz/takaful-keluarga/wang-insurans-tidak-ikut-syarak-
bukan-harta-pusaka/
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Isa, R. (n.d.). Retrieved October 21, 2014, from Women's Aid Organisation:
http://www.wao.org.my/Muslim+Inheritance+Law+(Faraid)_86_76_1.htm
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10.0 APPENDIX
Modern system of Islamic inheritance calculation as provided from
http://www.islamchannel.tv/pages/InheritCalculator.aspx
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Example of faraid distribution, taken from http://forums.understanding-
islam.com/showthread.php?9554-doctrine-of-Awl
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Example The Picture of the Book Alexander David Russel & Abdullah Al- Ma’mun
Suhrawardy in Fara’id of Islamic Inheritance Law