Death Sickness:
Limitations on the freedom over property:
There are three limitations on an individuals freedom over his property at the time of his
death.
- Firstly, he may only bequeath in his will one third of his property, the rest must be
divided according to strict Islamic Law rules of succession.
- Secondly, an individual may not bequeath to an existing heir.
- Thirdly, and with what we are concerned here, is that Islamic law curbs a dying
individual’s ability to gift his property. This third limitation is known as the
‘death sickness interdiction’ or Marz al-Maut.
Reasoning behind the Death Sickness Interdiction:
- The reasoning behind this lies in the fact that when a person enters his final death
sickness, his property begins to vest in his legal heirs and his creditors.
- If due to the fear of illness and wanting to increase ones reward in the hereafter
one gives away much of his property this would have an unduly negative effect on
his family members.
- Secondly, creditors who have debts outstanding with the deceased would also be
negatively affected. There would be less property to sell off to pay back the
deceased’s debt.
What does the Death Sickness interdiction actual limit:
The actual limitation is that the individual suffering from death sickness will not be able
to give away (gift) or ‘sell below value’ more than one-third of his property. Of course,
like the other limitations the will of the dying individual can be given effect if all the
legal heirs agree to the wishes of the dying individual. So a bequest more than one third,
or a bequest to an existing heir, or a gift of more than one third while in death sickness
will all be valid if the legal heirs agree to it.
Gifts, in Islamic Law, are considered completed transactions and will take precedence
over bequests. This is because bequests are only realized upon the demise of the
individual. Therefore, if an individual makes a gift of one third of his property during his
death sickness and in his will also makes a bequest, then the Gift will be given
precedence and the bequest shall fail.
Debts incurred during death sickness:
A debt incurred during death sickness will be lower in categorization than a debt incurred
by the individual in good health. Upon the individuals death the Debt incurred while in
good health will be paid off first and then the debt incurred during death sickness.
Requirements:
1) The sickness must actually lead to death: Example: a person is told that he is
terminally ill and will die of cancer in 6 months. This individual then gives half of
all of his property to his friend as a gift. This individual then dies of a car
accident. The gift will stand as a valid gift and will not be void due to death
sickness as that did not actually kill him.
2) Death sickness may never extend beyond one year: (akin to the former English
Law, Year and a Day Rule for homicide). This rule is strictly adhered to in the
Shi’i Schools but less so in the Sunni Schools.
South Asian Law:
In South Asia a third requirement is added namely that the person suffering must have
a subjective apprehension of death.
In Pakistan this subjective requirement is strictly adhered to. In fact, in Shamshad
Ali Shah v. Hassah Shah (1964 Pakistan), Kaikaus J observed obiter that as long as
the individual subjectively feared dying when making the gift he need not actually die
for his actions to be interdicted by the death sickness rule.
However, this seems too extreme a view. Criticise, how this may lead to wrongful
decisions especially as the subjectivity of the issue may be very difficult ascertain.
In Abdul Hafiz Beg v. Sahebbi (1975 India) Masodkar J said that “…it may be
taken as settled that the crucial test of marz-ul-maut is the (proof of the subjective
apprehension of death in the) mind of the donor…”
He went on to say that physical illness or the views of others may only serve as
indicators but are not conclusive proof that he made the decision to gift while
suffering from death sickness.
In Muhammad Gulshere Khan v. Mariam Begam (1881) a man who had been
suffering from boils and carbuncles for over a year and was not apprehending death
made a donation. The courts did not apply the death sickness interdiction here.
Pre-partition Sub-Continent authority on not being able to gift (or waqf) more than one
third of ones property while in death sickness:
Karimanissa Bibi v. Hamedulla (1926): Here a very old man suffering from paralysis
and had become a helpless invalid gave a large portion of his property for Waqf (trust),
nine months later he died and the court held that he had made the waqf during his death
sickness. The waqf would, therefore, only be valid up to only one third of the property
and not the whole portion the old man had in mind.
Pre-partition Sub-Continent authority on illness lasting over a year not being death
sickness: Muhammad Gulshere Khan v. Mariam Begam (1881): A man suffering
from boils and carbuncles for over a year and apprehending death made a donation of
property. It was held that this was valid and that he did not make the donation while in
death sickness.
Discuss the Pros and Cons of this:
Pros:
- Secures the share of the heirs
o Allowing a fair apportionment of the assets may reduce family infighting
and disputes.
o Family members are able to prepare for the future and have security of
their assets.
- Secures the share of creditors
o The limits on the dying individual prevent squandering of wealth and help
secure a financial system. The banking sector and creditors are not left
with bad debt.
- Has the potential to break business monopolies consolidated in the hands of a
single individual. He will not be able to pass on the entire assets to one party and
thus secure the monopoly beyond his death.
- Prevents tax evasion, transfer of property before death may obviate inheritance
tax issues.
- Allows the concept of the Gift to be legally workable, as abuse of the Gift concept
is now limited during death sickness. This will also reduce burden on the courts
and gives certainty to the law.
Cons:
- Limits the free will of the dying individual. He or She may be completely sane but
will not be able to makes decisions about their own wealth.
- The subjective element in South Asian jurisdictions is difficult to ascertain.
- Deserving individuals may lose out on a share of the individuals property.
Promises of gifts made prior to the death sickness would not be workable.
- Creditors who have given loans to the deceased in time of need (when he is
dying) are now automatically at a disadvantage. This lessens the chances of
people helping people in times of need as they know their loans are not safe.
