Legislative provisions for waṣiyyah wājibah in Malaysia and Indonesia: To what extent do they differ in practice?

Suhaili Alma'amun; Mohd Khairy Kamarudin; Wan Nadiah Wan Mohd Nasir; Nasrul Hisyam Nor Muhamad; Riayati Ahmad Article Legislative provisions for waṣiyyah wājibah in Malaysia andIndonesia: To what extent dothey differ in practice? ISRA International Journal of Islamic Finance Provided in Cooperation with: International Shari'ah Research Academy for Islamic Finance (ISRA), Kuala Lumpur Suggested Citation: Suhaili Alma'amun; Mohd Khairy Kamarudin; Wan Nadiah Wan Mohd Nasir; Nasrul Hisyam Nor Muhamad; Riayati Ahmad (2022) : Legislative provisions for waṣiyyah wājibah in Malaysia andIndonesia: To what extent dothey differ in practice?, ISRA International Journal of Islamic Finance, ISSN 2289-4365, Emerald, Bingley, Vol. 14, Iss. 2, pp. 157-174, https://doi.org/10.1108/IJIF-01-2021-0013 This Version is available at: https://hdl.handle.net/10419/302028 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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Suhaili Alma’amun Faculty of Economics and Management, Universiti Kebangsaan Malaysia, Bangi, Malaysia Mohd Khairy Kamarudin Academy of Islamic Civilisation, Faculty of Social Sciences and Humanities, Universiti Teknologi Malaysia, Skudai, Malaysia Wan Nadiah Wan Mohd Nasir Department of Muamalat, Kolej Islam Antarabangsa Sultan Ismail Petra, Kota Bharu, Malaysia Nasrul Hisyam Nor Muhamad Academy of Islamic Civilisation, Faculty of Social Sciences and Humanities, Universiti Teknologi Malaysia, Skudai, Malaysia, and Riayati Ahmad Faculty of Economics and Management, Universiti Kebangsaan Malaysia, Bangi, Malaysia Abstract Purpose –This research aims to examine and compare differences in was _iyyah w ajibah (obligatory bequest) (WW) practices in Malaysia and Indonesia. Design/methodology/approach –This is an exploratory qualitative research, employing a thematic analysis approach. Six Muslim Wills (State) Enactments [Enakmen Wasiat Orang Islam (Negeri)] in Malaysia, Islamic Law Compilation (Kompilasi Hukum Islam) in Indonesia, two fatwas (ruling in religious matters) and one court case from each country are analysed. Data is collected from official government websites and other reliable search engines. Findings –First, the findings show that the WW practice in both countries is similar regarding the quantum of the beneficiaries’entitlement. However, the practice varies between both countries in terms of the types of beneficiaries and how the bequest is distributed. Second, this study shows the potential of WW as an estate planning instrument to complement the existing instruments in each country, especially when addressing family members who are not entitled to succeed by far a ʾ id _(Islamic inheritance law). Practical implications –The provision of relevant laws and regulations regarding WW needs to be formulated to guarantee the well-being of dependants. The differences in practice between the two countries can be a guideline to expand the WW scope and context to other Muslim countries. Was _iyyah w ajibah in Malaysia and Indonesia 157 © Suhaili Alma’amun, Mohd Khairy Kamarudin, Wan Nadiah Wan Mohd Nasir, Nasrul Hisyam Nor Muhamad and Riayati Ahmad. Published in ISRA International Journal of Islamic Finance.Publishedby Emerald Publishing Limited. This article is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode. This study is funded by the Ministry of Higher Education Malaysia (Project code: FRGS/1/2021/SSI0/ UTM/02/11). The current issue and full text archive of this journal is available on Emerald Insight at: https://www.emerald.com/insight/0128-1976.htm Received 26 January 2021 Revised 25 February 2021 26 June 2021 29 October 2021 18 December 2021 Accepted 20 December 2021 ISRA International Journal of Islamic Finance Vol. 14 No. 2, 2022 pp. 157-174 Emerald Publishing Limited e-ISSN: 2289-4365 p-ISSN: 0128-1976 DOI 10.1108/IJIF-01-2021-0013 Originality/value –This study is the first attempt to compare WW between two Muslim-majority countries focusing on relevant laws, court cases and regulations. Keywords Islamic inheritance, Islamic law compilation, Muslim wills (state) enactments, Was _iyyah w ajibah (WW) Paper type Research paper Introduction Far a ʾ id _(Islamic inheritance law) guarantees the rights of beneficiaries to a deceased’s estate. However, it has several limitations. Some family members can be excluded from inheritance due to certain barriers, such as being excluded by closer beneficiaries, the absence of blood relationship or difference of religion (non-Muslim beneficiaries) (Nik Hussain and Abdul Razak, 2014;Sulong, 2014a,b). The case of being excluded by closer heirs may arise when the grandparent of children who had previously lost their mother or father (the child of the said grandparent) dies. In this instance, the grandchildren would be excluded from inheriting their grandparent’s estate by their parent’s siblings, who will completely succeed to all the estate. If the grandchildren do not succeed to any portion of their grandparent’s estate through far a ʾ id _, bequest or inter vivos, then there is a likelihood that the grandchildren’s lives will be in jeopardy. Therefore, was _iyyah w ajibah (obligatory bequest) (WW) is growing in importance to preserve the well-being of immediate family members who do not succeed to any such inheritance (Musa, 2017;Setiawan, 2017). Historically, WW was first introduced in Egypt, followed by Libya, Kuwait, Syria, Yemen, Jordan, Morocco, Pakistan, Tunisia and Indonesia (Muda, 2008). The legal variation in these countries can result in two major practical differences: the proportion of inheritance that will be attained by this type of bequest and the categories of beneficiaries (Hidayati, 2012; Muhamad Asni and Sulong, 2016). In response to the variations in practice, this paper explores the WW practice in two Muslim-majority countries, namely Malaysia and Indonesia, by analysing the relevant laws and regulations in these countries and evaluating the rise in the number of court cases. Furthermore, this paper compares the practices from the viewpoint of the beneficiaries and the proportion approach. An in-depth understanding of this practice is crucial principally to the policymakers to further develop the potential of WW as one of the complements to other well-designed instruments for inheritance planning in their respective countries. The following section of the paper explores the relevant literature to identify the significant issues in WW. The data collection and analysis of this paper are then presented, followed by a presentation and discussion of the significant findings. Concluding remarks are found in the final section. Literature review Overview of was _iyyah There are potential beneficiaries who will never succeed to the inheritance because they are of a different religion, have no blood relationship or because they murdered the deceased (Wan Harun, 2010). In addition to this, in the far a ʾ id _distribution context, some beneficiaries may be excluded from succeeding to the estate by the al-h _ajb doctrine. Al-h _ajb (screening) means the obstruction of a particular beneficiary from succeeding to the whole or part of the inheritance due to the presence of other heirs having a stronger claim to the estate (Shesa, 2018). Hence, Muslims may bequeath their wealth during their lifetime to overcome inheritance barriers. Was _iyyah (bequest) is a form of wealth transfer that will be enforced after the deceased’s passing. There are two main limitations to it as agreed in Islamic law. First, the wealth cannot be transferred to beneficiaries entitled to the estate through far a ʾ id _law. Second, the total IJIF 14,2 158 value of the transfer must be less than one-third of the total inheritance. Thus, beneficiaries who have been excluded from succeeding to the estate through far a ʾ id _distribution are entitled to receive an inheritance through was _iyyah with a total value of not more than onethird (Nor Muhamad, 2017;Mohamad Puad et al., 2018;Voyce, 2018;Jamalurus et al., 2019; Rashid et al., 2019;Rasban et al., 2020). A was _iyyah is a voluntary act and is encouraged as a practice by Islam (Wan Harun, 2009;Erniwati, 2018;Muhammad Daud and Azahari, 2018, 2022). Some Muslim scholars, such as Saʿ  ıd ibn al-Musayyib, H _asan al-Bas _r ı, Imam Ah _mad ibn H _anbal, D aw ud al-Z _  ahir ı, Is-h _  aq ibn Rahawiyah, Ibn Jar ır and Ibn H _azm, viewed it as compulsory to transfer a deceased’s estate through was _iyyah to the immediate families who are not entitled to the inheritance (Muhamad Asni and Sulong, 2016). Was _iyyah w ajibah An explicit provision for WW is not found in Islamic law. Muhamad Asni and Sulong (2016) described two prominent groups of Muslim scholars holding different ideas regarding this practice. Those supporting the WW practice refer to Qurʾ anic passages (2:180) and (4:8). Those rejecting the practice express a widely held view that these verses regarding was _iyyah have been abrogated (mans ukh) by the revelation of verses related to far a ʾ id _, based on Qurʾ anic passages (4:11–12). There is also the statement of Prophet Muhammad: “There is no was _iyyah to the heirs”(Al-Nays _abur ıand Bin, 2006) . Nevertheless, current Muslim scholars have introduced the WW doctrine by incorporating the was _iyyah and far a ʾ id _verses to preserve the share of beneficiaries excluded from receiving any inheritance (Setiawan, 2017; Rahman et al., 2020). The was _iyyah doctrine is broader than WW because was _iyyah can be given to anyone other than those qualified to inherit through far a ʾ id _. Conversely, WW is specific to certain beneficiaries and compulsorily enforced without being subject to the will of the deceased (Shesa, 2018). To be precise, WW has been promulgated to provide for orphaned grandchildren. Without WW, the position was that living sons of a parent who dies would exclude from succession the grandchildren of that parent through a son or daughter who died before the parent. Munir (2018, p. 113) said that the underlying cause of this WW is the “misery of the orphaned grandchildren”. Many advocate it based on the presumption that orphaned grandchildren excluded from succession live in miserable conditions. The necessity to enforce WW in this circumstance can be explained by two perspectives: economic needs and family relationship. This practice is seen to be able to care for the beneficiaries’welfare and benefits as some beneficiaries live in poverty and with health problems. Thus, they would still need support (Setiawan, 2017;Lestari and Wahyuningsih, 2018;Muhammad Daud and Azahari, 2018). In contrast, some beneficiaries live well with support from their immediate families. This is a challenge to the court to justify the need to enforce WW (Mohd Noor et al., 2018). From another perspective, WW is able to maintain and strengthen family relationships. It is important because distant or excluded beneficiaries will also inherit part of the estate. In fact, this is consistent with objectives of Islamic law (maq as _id al-Shar ı ʿ ah). One of the essential objectives of the law is the preservation of offspring (Hadi, 2017;Lestari and Wahyuningsih, 2018). The enforcement of WW is determined by beneficiaries’needs and court order (Hadi, 2017). In fact, in the order of estate management, the heirs have to discharge WW prior to executing the deceased’s charitable was _iyyah (Muda and Jusoh, 2005). Conversely, an ordinary was _iyyah can only be enforced if the testator leaves a will orally or in writing. Furthermore, there are also recommendations to extend WW beneficiaries to non-Muslim heirs and dhawul arh _  am (beneficiaries who will never receive an inheritance due to the distance of their blood relationships with the deceased) (Musa, 2017; Setiawan, 2017;Lestari and Wahyuningsih, 2018;Shesa, 2018). Was _iyyah w ajibah in Malaysia and Indonesia 159 Was _iyyah w ajibah practices among Muslim countries Although there is an understanding among Muslim countries that WW is a means to provide for orphaned grandchildren, the real situations show that it has been practised slightly differently in different countries. Egypt was the first Muslim country to introduce and codify WW. Later, other Muslim countries adopted Egyptian law concerning WW. In Syria, Morocco and Jordan, WW is granted only to the grandchildren, great-grandchildren, etc. of the predeceased father, no matter how many generations there may be between the bequeather and the beneficiary. Egypt, Libya, Kuwait and Yemen additionally include the grandchildren, etc. of the predeceased mother as beneficiaries (Muda, 2008). In Tunisia and Iraq, the beneficiaries of WW are limited to the grandchildren of the predeceased mother or father. There is an inconsistent finding in Hidayati’s (2012) study, who also examined the w ajibah will in some Muslim countries, including Morocco. Unlike Muda’s (2008) findings, Hidayati (2012) claimed that the practice in Morocco is similar to Egypt. In Pakistan, grandchildren losing their parents replace their parents as heirs of their grandfather (Muhammad Daud and Azahari, 2022). This principle is also known as representational succession (Fauzi, 2019). The grandchildren, either male or female, inherit the same share as would have been received by their father or mother (Muhammad Daud and Azahari, 2022). It shows that in Pakistan, the grandchildren will never receive an inheritance in the form of WW. Regarding Malaysia, Muda and Jusoh (2005) carried out a study to comparatively review the legislative provisions for WW practices in Egypt and Selangor (a state in Malaysia). They found that the provision of WW is broader in Egypt than in Selangor. It is because WW in Selangor is limited to the grandchildren of the deceased father only. They opined that Selangor is not able to serve the purpose of protecting orphaned grandchildren efficiently as it excludes grandchildren of the deceased mother from being beneficiaries. Muda (2008) found that WW has been legalised in three states of Malaysia, namely Selangor, Negeri Sembilan and Melaka. The practice in Negeri Sembilan and Melaka is similar to Selangor. In Indonesia, WW applies to adopted children and adoptive parents, while in other Muslim countries it applies to grandchildren whose parents died before the testator (Syafi’i, 2017). Ilhami (2018) affirmed that the inclusion of the WW principle has been borrowed from the Egyptian Law of Testamentary Dispositions of 1946 and has been transplanted into Article 209 of the Kompilasi Hukum Islam (KHI) in Indonesia. Despite this, WW in Indonesia is intended for adopted children and adoptive parents, not for the orphaned grandchildren as practised in Egypt. Concerning the orphaned grandchildren, Indonesia has adopted the practice of Pakistan. The grandchildren losing their parents in the Indonesian KHI context are considered heir replacements (Fauzi, 2019). However, in Indonesia, the amount to be received by the grandchildren is up to one-third of the estate (Hidayati, 2012). Unlike other countries, WW in Indonesia is also given to non-Muslim heirs, children born out of wedlock from their biological father and stepchildren nurtured since their childhood (Ilhami, 2018). Even though researchers are very concerned about the extent to which the practices of WW differ across Muslim countries, the comparison between Malaysia and Indonesia is absent in these studies. For instance, Muda and Jusoh (2005) and Muda (2008) did not take into account Indonesia in their studies, while Malaysia was not included in the work of Hidayati (2012). Moreover, most past studies regarding WW in Indonesia did not explicitly compare WW practices between Malaysia and Indonesia. It is true that some who have addressed WW in Indonesia have acknowledged the WW practice in Malaysia; however, they did not discuss why the practice in Indonesia differs from that of Malaysia. In addition, the recent WW development in Malaysia shows that, to date, six states have enacted WW instead of three states, as found in Muda (2008). Thus, any comparison made between both countries needs to consider the latest WW enactments in Malaysia. Apart from that, both countries hold to the Shafiʿ  ıSchool of jurisprudence. Therefore, logically, the WW practice should be IJIF 14,2 160 more or less the same. This is, however, not the case, as pointed out in the past studies. In order to obtain in-depth understanding, there is an urgent need to investigate the differences in WW practices in Malaysia and Indonesia by analysing local laws and regulations and court cases. WW is considered a reform of the Islamic family law and remains controversial among Muslim scholars (Hidayati, 2012). By identifying and comparing the similarities and differences in both countries, experts of Islamic family law in Malaysia and Indonesia will be able to re-evaluate whether WW is the best alternative to solve a particular inheritance issue. Research methodology Research design A comparative analysis approach was employed together with thematic document analysis. Comparative analysis of relevant laws and regulations has been practised by Azmi et al. (2017),Koops et al. (2018) and Ikejiaku and Dayao (2021). According to Engberg (2020), this approach allows access to legal sources from different legal systems. Moreover, it creates connections facilitating research to see a link between different and unfamiliar legal settings. Data collection This study analysed two types of documents: local enactments or acts and court cases. The researchers chose Malaysia and Indonesia as both countries have specific laws and cases concerning WW and are understood by the researchers. The relevant documents were obtained from the official websites of relevant institutions. All the documents were in the Malay and Indonesian languages, which were then translated into English by two qualified translators to certify the accuracy and acceptability of the translation (Vaismoradi et al., 2016;Ahmad Ramli et al., 2017). This study also analysed six enactments which shed light on the WW practice as follows: (1) Muslim Wills (State of Selangor) Enactment 1999 (Amendment 2016) [Enakmen Wasiat Orang Islam (Negeri Selangor) 1999 (Pindaan 2016)] (EWOINS2016) (2) Muslim Wills (State of Negeri Sembilan) Enactment 2004 [Enakmen Wasiat Orang Islam (Negeri Sembilan) 2004] (EWOINS2004) (3) Muslim Wills (State of Malacca) Enactment 2005 [Enakmen Wasiat Orang Islam (Negeri Melaka) 2005] (EWOINM2005) (4) Muslim Wills (State of Kelantan) Enactment 2009 [Enakmen Wasiat Orang Islam (Negeri Kelantan) 2009] (EWOINK2009) (5) Muslim Wills (State of Pahang) Enactment 2017 [Enactment Wasiat Orang Islam (Negeri Pahang) 2017] (EWOINP2017) (6) Muslim Wills (State of Sabah) Enactment 2018 [Enakmen Wasiat Orang Islam (Negeri Sabah) 2018] (EWOINS2018) A fatwa (a ruling in religious matters) issued by the Fatwa Committee of the National Council for Islamic Religious Affairs of Malaysia (Jawatankuasa Fatwa Majlis Kebangsaan Bagi Hal Ehwal Ugama Islam Malaysia –MKI) in 2008 and one court case, Re Mustapha bin Ismail [2009] 2 ShLR 118 were also studied. In the Indonesian context, this study explored Article 185 and Article 209, Compilation of Islamic Laws (KHI), Majelis Ulama Indonesia (MUI) fatwa and one WW court case, notably case number 26/Pdt.G/2015/PTA.Plg. Data analysis The documents gathered from websites, i.e. enactments and court cases, were read several times carefully to gain familiarity with the information. Then, initial inductive coding was Was _iyyah w ajibah in Malaysia and Indonesia 161 carried out, organised and clustered based on similarities. Based on these similarities, this study pooled the codes to identify the emergent overarching themes; that is, small codes were combined to find a broader theme and portray the data accurately. Later, a comprehensive discussion was carried out to refine and reach a consensus on the theme development. When any theme discrepancies were found, a group discussion was conducted to reach a common agreement as practised by MacPhail et al. (2016) and Wshah et al. (2020). The discussion of the themes was turned into a fundamental comparison of the WW practices in Malaysia and Indonesia. Results and discussion This study’s analysis classified the WW practice into three groups: the enforcement of WW in Malaysia, the enforcement of WW in Indonesia and a comparison between both countries. The enforcement of was _iyyah w ajibah in Malaysia The WW practice in Malaysia refers to a part of the inheritance set out by law to be distributed to grandchildren not succeeding to their grandparents’estate because of their parents’death and being excluded by the presence of their parents’siblings. In addition, it also applies in the event of simultaneous deaths (grandparents together with parents), resulting in the grandchildren not succeeding to their grandparents’estate (Wan Harun, 2009). However, this WW is only applicable in six states (instead of 14) with explicit provisions for WW. The provisions of this law are enacted in Muslim Wills Enactments and through the official MKI fatwa issued at the state level (Muhamad Asni and Sulong, 2016). The six states that have enactments of WW are Selangor, Negeri Sembilan, Melaka, Kelantan, Pahang and Sabah. Furthermore, there is a fatwa issued by the MKI authorising the WW practice [Jabatan Kemajuan Islam Malaysia (JAKIM), 2008]. In contrast, other states do not have any enactments legalising WW. The state enactments only provide for general matters related to the Shariah High Court (Mahkamah Tinggi Syariah) in dealing with WW based on Section 46(2)(b)(v), Jurisdiction of Shariah High Court (Bidang Kuasa Mahkamah Tinggi Syariah). In addition, these states will refer to Islamic legal sources for WW validation as provided in Section 245(2), Shariah Court Civil Procedure (Federal Territories) Act 1998 (Act 585) (Ibrahim, 2017). This paper compares these six enactments for each state reflecting the WW practice in Malaysia through seven themes, as shown in Table 1. Themes 1: Section name and section number. With regard to Section name and number, all states provide for WW in Part VIII of their enactments even though the section numbers are different. However, states use different terms to name the section. This study identifies three terms used across the state enactments, namely “wasiat kepada cucu”,“bekues kepada cucu” and “was _iyyah w ajibah”. The use of these different terms does not make any significant difference as Alma’amun (2013) indicated that the use of “wasiat”and “bekues”might have the same meaning, which is to transfer an inheritance after death. Theme 2: Was _iyyah w ajibah beneficiaries. Findings from theme 1 indicate that WW is for grandchildren. However, theme 2 further shows that not all grandchildren are regarded as WW beneficiaries. EWOINS2016, EWOINK2009, EWOINP2017 and MKI recognise grandchildren from both son’sordaughter’s sides but they limit to those grandchildren. Contrastingly, the MKI endorses grandchildren from the son’sordaughter’s side as WW beneficiaries howsoever farremovedtheymaybe.EWOINS2004,EWOINSM2005 and EWOINS2018 only recognise grandchildren from the son’s side as WW beneficiaries. In other words, these three enactments do not provide for WW for grandchildren from the daughter’sside. Theme 3: Conditions for enforcing was _iyyah w ajibah. The conditions for enforcing WW can be categorised into two. The first condition is that the beneficiaries’parents (father or IJIF 14,2 162 Themes EWOINS2016 EWOINS2004 EWOINM2005 EWOINK2009 EWOINP2017 EWAOINS2018 MKI Section name and section number Part VIII Wasiat W ajibah Wasiat kepada cucu (Bequest to grandchildren) (27) Part VIII Wasiat W ajibah Bekues kepada cucu (Bequest to grandchildren) (27) Part VIII Wasiat W ajibah Bekues kepada cucu (Bequest to grandchildren) (27) Part VIII Wasiat W ajibah Wasiat kepada cucu (Bequest to grandchildren) (27) Part VIII Wasiat W ajibah (30) Part VIII Wasiat W ajibah Wasiat kepada cucu (Bequest to grandchildren) (27) Not related for both sections Was _iyyah w ajibah beneficiaries Grandchildren from son’s or daughter’s side Grandchildren from son’s side Grandchildren from son’s side Grandsons and granddaughters from son’s and daughter’s sides Grandchildren from son’s or daughter’s side Grandchildren from son’s side Grandsons and granddaughters from son’s and daughter’s sides and downwards Conditions for enforcing was _iyyah w ajibah Father or mother died prior to grandfather or grandmother Father died prior to grandfather or grandmother Father died prior to grandfather or grandmother Father or mother died prior to grandfather or grandmother Father or mother died prior to grandfather or grandmother Father died prior to grandfather or grandmother Father or mother died prior to grandfather or grandmother Father or mother dies simultaneously with grandfather or grandmother Father dies simultaneously with grandfather or grandmother Father dies simultaneously with grandfather or grandmother Father or mother dies simultaneously with grandfather or grandmother in similar or dissimilar circumstances Father or mother dies simultaneously with grandfather or grandmother Father dies simultaneously with grandfather or grandmother Father or mother dies simultaneously with grandfather or grandmother Requirements for was _iyyah w ajibah (a) Not estate beneficiaries Yes Yes Yes Yes Yes Yes Yes (b) Religion Beneficiaries’father or mother is Muslim Not specified Not specified Beneficiaries are not religiously different from their father or mother Beneficiaries are not religiously different from their father or mother Not specified Beneficiaries are not religiously different from their father or mother (continued) Table 1. Comparison of was _iyyah w ajibah practices in State Enactments and MKI Was _iyyah w ajibah in Malaysia and Indonesia 163 Themes EWOINS2016 EWOINS2004 EWOINM2005 EWOINK2009 EWOINP2017 EWAOINS2018 MKI (c) Receiving bequest or inter vivos Beneficiaries do not receive inheritance by bequest or inter vivos from grandfather or grandmother If the beneficiaries have succeeded to the estate by bequest or inter vivos, they still can receive the was _iyyah w ajibah subject to not being beneficiaries by far a ʾ id _, beneficiaries’ father or mother is Muslim and not involved in the murder Beneficiaries do not succeed to the estate by bequest or inter vivos from grandfather or grandmother Beneficiaries do not succeed to the estate by bequest or inter vivos from grandfather or grandmother Beneficiaries do not succeed to the estate by bequest or inter vivos from grandfather or grandmother Beneficiaries do not succeed to the estate by bequest or inter vivos from grandfather or grandmother Beneficiaries do not succeed to the estate by bequest or inter vivos from grandfather or grandmother Beneficiaries do not succeed to the estate by bequest, endowment (waqf), or inter vivos from grandfather or grandmother (d) Not involved in the murder Beneficiaries are not involved in the murder of grandfather or grandmother Not specified Not specified Beneficiaries are not involved in the murder of father or mother Beneficiaries are not involved in the murder of father or mother Beneficiaries are not suspiciously involved in the murder of father or mother Beneficiaries are not false witnesses who cause the father or mother to be executed Not specified Beneficiaries are not involved in the murder of father or mother Proportion Father’s or mother’s far a ʾ id _proportion and less than one-third from total grandfather’sor grandmother’s estate Father’sfar a ʾ id _ proportion and less than one-third from total grandfather’s or grandmother’s estate Father’sfar a ʾ id _ proportion and less than one-third from total grandfather’s or grandmother’s estate Father’sfar a ʾ id _ proportion and less than one-third from total grandfather’sor grandmother’s estate Father’sfar a ʾ id _ proportion and less than one-third from total grandfather’s or grandmother’s estate Less than one-third from total grandfather’sor grandmother’s estate Father’s or mother’s far a ʾ id _proportion and less than one-third from total grandfather’sor grandmother’s estate (continued) Table 1. IJIF 14,2 164 and the balance is divided among the deceased’s siblings by ʿ as _abah bi al-ghayr. Thus, the proportion belonging to the husband is 5/10 while each of the two brothers gets 2/10 and the sister gets 1/10. The adopted child has no privileges to her adoptive parent’s estate. Instead, the court verified that the adopted child was eligible to one-third of her adoptive parent’s estate, and the remainder (2/3) was distributed in accordance to far a ʾ id _. Accordingly, the husband got 1/3, each brother got 2/15 and the sister got 1/15, as illustrated in Table 6. Conclusion WW practices in Malaysia and Indonesia are different in terms of the main sources, WW beneficiaries and their calculation methods. In Malaysia, recent developments in Islamic inheritance have contributed to the enforcement of the Muslim Wills (State) Enactments and produced a specific section for WW.Although at present, the Enactments are not standardised with the MKI fatwa they can still be considered as a positive development towards strengthening WW as part of the Islamic inheritance system. On the other hand, Indonesia seems to have a uniform practice for the whole country. This study may be expanded by comparing the practices of other Muslim-majority countries using the same method applied in this study. References Ahmad Ramli, F.Z., Tilse, C. and Wilson, J. (2017), “Qualitative interviewing of Malay caregivers: stigma and mental health problems of older adults”,International Journal of Culture and Mental Health, Vol. 10 No. 2, pp. 127-135. Alma’amun, S. (2013), “Wasiyyah (Islamic Will) writing service in Malaysia: an investigation of the supply channel”,ISRA International Journal of Islamic Finance, Vol. 5 No. 1, pp. 90-114. Al-Nays _abur ı, A.A.H.M. and Bin, A.-H.al-Q. (2006), Sahih Muslim, Dar al-Taybah, al-Riyad. Azmi, R., Abd Razak, A. and Ahmad, S.N.S. (2017), “Discharge in bankruptcy: a comparative analysis of law and practice between Malaysia, Singapore and the United Kingdom (UK) –what can we learn?”,Commonwealth Law Bulletin, Vol. 43 No. 2, pp. 203-233. Direktorat Pembinaan Peradilan Agama Islam (2001), Kompilasi Hukum Islam Di Indonesia, Ditjen Pembinaan Kelembagaan Islam Departemen Agama, Jakarta. Engberg, J. (2020), “Comparative law for legal translation: through multiple perspectives to multidimensional knowledge”,International Journal for the Semiotics of Law, Vol. 33 No. 2, pp. 263-282. Was _iyyah w ajibah Far a ʾ id _proportion (2/3 of balance) Fundamental proportion Final proportion Sampurno (Husband) Not entitled to was _iyyah w ajibah 1/2 32/3 51/3 1/3 15 5/15 Sukari (Brother 1) ʿ As _abah bi al-ghayr (2/3) 5remaining 1/3 2/15 2/15 Samidi (Brother 2) 2/15 2/15 Kasimah (Sister 1) 1/15 1/15 Lusi Lusita (adopted child) 1/3 Did not succeed, being excluded by the absence of blood relationship 0 0 5/15 Source(s): Authors’own Table 6. Inheritance estate distribution in case number 26/Pdt.G/2015/ PTA.Plg Was _iyyah w ajibah in Malaysia and Indonesia 171 Erniwati (2018), “Wasiat w ajibah dalam perspektif hukum Islam di Indonesia dan komparasinya di negara-negara Muslim”,Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi Dan Keagamaan, Vol. 5 No. 1, pp. 63-74. Fauzi (2019), “The concept of patah titi: the problem of inheritance and its solution in Aceh Tengah”, Studia Islamika, Vol. 26 No. 1, pp. 33-74. Hadi, S. (2017), “Pembatasan wasiat sebagai bentuk keadilan hukum Islam”,Al-Ahwal: Jurnal Hukum Keluarga Islam, Vol. 9 No. 2, p. 169. Hidayati, S. (2012), “Ketentuan wasiat w ajibah di pelbagai negara Muslim kontemporer”,AHKAM: Jurnal Ilmu Syariah, Vol. 12 No. 1, pp. 81-90. Ibrahim, B.H. (2017), “Hibah (gift inter vivos) by parent in favour of some children to the exclusion of the others under Islamic law”,Arab Law Quarterly, Vol. 31 No. 1, pp. 54-73. Ikejiaku, B. and Dayao, C. (2021), “Competition law as an instrument of protectionist policy: comparative analysis of the EU and the US”,Utrecht Journal of International and European Law, Vol. 36 No. 1, pp. 75-94. Ilhami, H. (2018), “Kontribusi fatwa Majelis Ulama Indonesia nomor 11 tahun 2012 tentang kedudukan anak hasil zina dan perlakuan terhadapnya dalam hukum keluarga Islam di Indonesia”,Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada, Vol. 30 No. 1, p. 1. Jabatan Kemajuan Islam Malaysia (JAKIM) (2008), “Hukum pelaksaan wasiat w ajibah”,inHimpunan Keputusan Muzakarah Jawatan Kuasa Fatwa Kebangsaan Berhubung Dengan Isu-Isu Muamalat, Jabatan Kemajuan Islam Malaysia, Putrajaya, pp. 56-59. Jamalurus, H.L., Mokhtar, S.F. and Rahim, H.A. (2019), “The awareness of wasiyyah (will writing) practice among Muslims”, in Mohd Sidek, N.Z., Said, R. and Wan Hasan, W.N. (Eds), Islamic Development Management, Springer, pp. 151-160. Koops, B.J., Newell, B.C., Roberts, A.,  Skorv anek, I. and Gali c, M. (2018), “The reasonableness of remaining unobserved: a comparative analysis of visual surveillance and voyeurism in criminal law”,Law and Social Inquiry, Vol. 43 No. 4, pp. 1210-1235. Lestari, S. and Wahyuningsih, S.E. (2018), “The division of distributable assets to the non-Muslim heirs based on Compilation of Islamic Law”,Jurnal Akta, Vol. 5 No. 2, p. 397. MacPhail, C., Khoza, N., Abler, L. and Ranganathan, M. (2016), “Process guidelines for establishing Intercoder Reliability in qualitative studies”,Qualitative Research, Vol. 16 No. 2, pp. 198-212. Maeda, N. (1975), “Family circle, community, and nation in Malaysia”,Current Anthropology, Vol. 16 No. 1, pp. 163-166. Mohamad Puad, N.A., Jamlus Rafdi, N., Ahmad Sanusi, S.W.S. and Sarip, M.M. (2018), “The journey of wasiyyah in Malaysia: a calling for an expansion”,Reports on Economics and Finance, Vol. 4 No. 3, pp. 103-116. Mohd Noor, N.A., Ismail, C.Z., Mohd Noor, N.A. and Mahamood, S.M. (2018), Harta wasiat orang Islam: satu ulasan ringkas dari perspektif perundangan di Malaysia, E-Academia, Vol. 7, Special Issue TEMIC, pp. 39-46. Muda, M.Z. (2008), “Instrumen hibah dan wasiat: analisis hukum dan aplikasi di Malaysia”,Jurnal Pengurusan JAWHAR, Vol. 3 No. 1, pp. 105-157. Muda, M.Z. and Jusoh, M.S. (2005), “Peruntukan undang-undang wasiat w ajibah di Mesir dan Selangor: kajian perbandingan”,Islamiyyat, Vol. 27 No. 2, pp. 3-23. Muhamad Asni, M.F.A.H. and Sulong, J. (2016), “Fatwa on w ajibah will and uniformity of provision in the Malaysian states fatwa”,Al-Qanatir International Journal of Islamic Studies, Vol. 5 No. 1, pp. 1-15. Muhammad Daud, Z.F. and Azahari, R. (2018), “The practice of judgment of w ajibah will to heirs of different religion: a selected case study”,Jurnal Syariah, Vol. 26 No. 2, pp. 267-294. IJIF 14,2 172 Muhammad Daud, Z.F. and Azahari, R. (2022), “The w ajibah will: alternative wealth transition for individuals who are prevented from attaining their inheritance”,International Journal of Ethics and Systems, Vol. 38 No. 1, pp. 1-19, doi: 10.1108/IJOES-09-2018-0133. Munir, M. (2018), “The share of orphaned grandchildren under Islamic law and Pakistani legal systems: a re-evaluation of representational succession in Section 4 and its (mis)interpretation by courts”, in Rehman, J. and Shahid, A. (Eds), The Asian Yearbook of Human Rights and Humanitarian Law, 2nd ed., Brill, Leiden, pp. 95-116. Musa, Z.M. (2017), “Kebajikan waris dhawi al-arham sebagai penerima harta pusaka dan cabaran perlaksanaannya di Malaysia”,Labuan E-Journal of Muamalat and Society, Vol. 11, pp. 1-12. Nik Hussain, N.F. and Abdul Razak, S.H. (2014), “The importance of rules of inheritance (fara’id)in Muslim’s society estate planning”,Journal of Islamic Banking and Finance, Vols Jan-Mar No. 1, pp. 9-32. Nor Muhamad, N.H. (2017), “Wasiat sebagai instrumen perancangan harta Islam: prosedur dan pelaksanaan”,Jurnal Hadhari, Vol. 9 No. 1, pp. 17-32. Rahman, M.H., Mohammad Monawer, A.T. and Osmani, N.M. (2020), “Wasiyyah w ajibah in Islamic estate planning: an analysis”,Jurnal Islam Dan Masyarakat Kontemporari, Vol. 21 No. 3, pp. 72-86. Rasban, S., Abdullah, A. and Hasan, A. (2020), “An analysis of residue net estate distribution to bayt al-m al in Singapore”,ISRA International Journal of Islamic Finance, Vol. 12 No. 1, pp. 49-67. Rashid, R.A.B., Mokhtar, W.K.A.W., Amiruddin, A.A.R.E. and Jamaludin, A.S. (2019), “Bequest as an instrument in wealth planning in Islamic law”,International Journal of Academic Research in Business and Social Sciences, Vol. 9 No. 11, pp. 550-556. Salleh, M.M., Nor Muhammad, N.H., Kamarudin, M.K., Salamon, H., Zulkifli, A.H. and Muhamad Zain, N. (2017), “Methods of estate inheritance in the case munasakhat”,Al-Qanatir International Journal of Islamic Studies, Vol. 8 No. 3, pp. 31-45. Setiawan, E. (2017), “Penerapan wasiat w ajibah menurut Kompilasi Hukum Islam (KHI)”,Muslim Heritage, Vol. 2 No. 1, p. 43. Shesa, L. (2018), “Keterjaminan kedudukan dzaul arham dalam kewarisan Islam menurut wasiat w ajibah”,Al-Istinbath: Jurnal Hukum Islam, Vol. 3 No. 2, p. 145. Sulong, J. (2014a), “Hak saudara baru terhadap harta pusaka: analisis undang-undang semasa”,Jurnal Islam Dan Masyarakat Kontemporari, Vol. 8, pp. 20-40. Sulong, J. (2014b), “The implication of religious conversion towards Muslim inheritance under Malaysian Law”,International Journal of Liberal Arts and Social Science, Vol. 2 No. 9, pp. 122-135. Syafi’i (2017), “Wasiat w ajibah dalam kewarisan Islam di Indonesia”,Misykat, Vol. 2 No. 2, pp. 119-130. Vaismoradi, M., Jones, J., Turunen, H. and Snelgrove, S. (2016), “Theme development in qualitative content analysis and thematic analysis”,Journal of Nursing Education and Practice, Vol. 6 No. 5, pp. 100-110. Voyce, M. (2018), “Islamic inheritance in Australia and family provision law: are Sharia wills valid?”, Contemporary Islam, Vol. 12 No. 3, pp. 251-266. Wan Harun, W.A.H. (2009), “Isu-isu pembahagian harta pusaka orang Islam dalam konteks perundangan Malaysia”,Jurnal Pengurusan JAWHAR, Vol. 3 No. 1, pp. 159-187. Wan Harun, W.A.H. (2010), “Penyelesaian dan pembahagian harta pusaka: isu dan masalah”,Jurnal Pengurusan JAWHAR, Vol. 4 No. 1, pp. 67-106. Wshah, A., Selzler, A.M., Hill, K., Brooks, D. and Goldstein, R. (2020), “Determinants of sedentary behaviour in individuals with COPD: a qualitative exploration guided by the theoretical domains framework”,COPD: Journal of Chronic Obstructive Pulmonary Disease, Vol. 17 No. 1, pp. 65-73. Was _iyyah w ajibah in Malaysia and Indonesia 173 About the authors Suhaili Alma’amun, PhD, is a Senior Lecturer at the Center for Sustainable and Inclusive Development Studies, Faculty of Economics and Management, Universiti Kebangsaan Malaysia (UKM), Bangi, Selangor, Malaysia. Her research areas are Islamic financial planning and wealth management and Islamic estate planning. Suhaili Alma’amun is the corresponding author and can be contacted at: [email protected] Mohd Khairy Kamarudin, PhD, is a Senior Lecturer at the Academy of Islamic Civilisation, Faculty of Social Sciences and Humanities, Universiti Teknologi Malaysia (UTM), Skudai, Johor, Malaysia. His research areas are Islamic estate planning and wealth management. Wan Nadiah Wan Mohd Nasir is a Lecturer at the Department of Muamalat, Kolej Islam Antarabangsa Sultan Ismail Petra (KIAS), Kelantan, Malaysia. Her research area is Islamic financial planning. Nasrul Hisyam Nor Muhamad, PhD, is an Associate Professor at the Academy of Islamic Civilisation, Faculty of Social Sciences and Humanities, UTM. His research areas are Islamic law and estate planning. Riayati Ahmad, PhD, is a Senior Lecturer at the Center for Sustainable and Inclusive Development Studies, Faculty of Economics and Management, UKM. Her research area is Islamic economics. 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