'Hibah' best tool to resolve Muslim inheritance issues - Experts

During last year’s Hari Raya celebrations, the 34-year-old IT engineer managed to get all her siblings and relatives from her father’s side together for a discussion on the division and distribution of her late father’s assets that included several plots of land.

Although not all issues were settled during the gathering, it was a good start and Imani Zulaika, who has three older brothers, is confident the matter would be resolved soon and mend the strained ties between her family and relatives.

When Muslims fail to draw up a will outlining the proportion of distribution of their assets to their heirs and, upon their death, their families are unable to reach a settlement, they will then resort to ‘faraid’ – the Islamic law of inheritance and distribution – which, however, can lead to disputes.

According to sociologist Prof Datuk Dr Mohammad Shatar Sabran, many Malays are still not aware of the importance of naming the heirs to their estate beforehand.

He said it is unfortunate that the concept of ‘hibah’, which is an alternative and more effective way of dividing and distributing one’s assets, is not popular among the Malay community.

The ‘hibah’ concept refers to the transfer of legal and beneficial ownership of assets from the donor to the beneficiary on a voluntary basis, with the proportion and distribution to heirs and non-heirs being determined by the donor.

“Ancestral land worth billions of ringgit is lying idle and nothing can be done to it simply because of the failure to change the names of the owners,” he told Bernama.

Mohammad Shatar, who is Universiti Pendidikan Sultan Idris vice-chancellor said, more clarification must be provided on ‘hibah’, ‘wasiat’ (will) and inheritance issues.

“Family gatherings during Hari Raya are the best time to discuss such issues. One need not wait until the father or mother has passed away to discuss inheritance issues. It’s better to discuss these issues and share information whilst one’s parents are still alive,” he said, adding that this will prevent misunderstandings and conflicts in the future.

Lawyer Datuk Ikbal Salam, who has been handling inheritance-related cases for the last 24 years said, the Malay community in this country adhered to the ‘faraid’ system as if it was the only asset distribution method provided under Islam.

“The reason why most Malays are nonchalant about inheritance is that they leave their asset distribution totally to the ‘faraid’ system. Islam, however, provides various methods of dividing one’s estate in a fair manner,” he said.

He said, he found it ironic that those who relied entirely on ‘faraid’ were usually the ones who would argue about their share of the inheritance when they realise that they had received less than what they anticipated.

Ikbal said, it is also not uncommon for a Malay family to possess land grants with their ownership comprising ancestors from three or four generations ago, which complicates the distribution of the inheritance.

“In the end, the property cannot be divided because there are too many heirs, with some of them having died while others cannot be traced,” he added.

Ikbal said, Muslims should be encouraged to opt for the ‘hibah’ concept when they open an account at an Islamic banking institution or cooperative and even at the Employees Provident Fund as it is the most effective way to resolve issues related to inheritance.

Under the ‘hibah’ concept, they can name the beneficiary or heir to the money left in their accounts.

“I feel it should be compulsory for those institutions to make the instrument of ‘hibah’ available on contributions, savings accounts, current accounts and investments to facilitate claims (by the heir) when the account holder dies.

“This way the heir doesn’t have to get an inheritance order for the purpose of withdrawal and distribution (of the money in the account). This will also prevent the money from being categorised as the estate of the deceased,” he explained.

Money left in accounts opened without using the ‘hibah’ instrument is categorised as part of the estate of the deceased account holder and, as such, the heir will have to go through a lengthy application process to claim the money.