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REVIEW ON ISSUES AND CHALLENGES IN ISLAMIC INHERITANCE DISTRIBUTION IN MALAYSIA

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This paper addresses issues and challenges clients face in claiming rights to Islamic inheritance in Malaysia. After independence, Muslims witnessed changes in the legal system of Malaysia that affected the administration and distribution of Islamic inheritance. The administration of Syariah courts is bound by Islamic Laws that were placed in the State List of the Federal Constitution. Constitutional amendments are called for; they may simplify the processes involved, but not without conflict. The Muslims' need to abide by Syariah-compliant principles has also not been able to push for the construction of one single complete system that can handle the whole management and distribution process of Islamic inheritance. Over the years, claim processes were very costly and time-consuming. This paper acknowledges that there exists a low awareness among clients of processes and procedures to follow in order to complete a claim submission process, and identifies lack of guidelines to be the main cause of the problem. This paper is a part of an on-going study that proposes to use a new network flow programming model as an alternative solution to issues and problems associated with the administration and distribution of Islamic inheritance in Malaysia.
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R
EVIEW ON
I
SSUES AND
C
HALLENGES IN
I
SLAMIC
I
NHERITANCE
D
ISTRIBUTION IN
M
ALAYSIA
Noraini Noordin
a
, Adibah Shuib
b
, Mohammad Said Zainol
c
,
Mohamed Azam Mohamed Adil
d
a, b, c
Faculty of Computer and Mathematical Sciences, Universiti Teknologi Mara, Malaysia
d
Centre of Islamic Thoughts and Understanding, Universiti Teknologi Mara, Malaysia
a
Corresponding author: noraininoordin@perlis.uitm.edu.my
©Ontario International Development Agency ISSN: 1923-6654 (print)
ISSN 1923-6662 (online). Available at http://www.ssrn.com/link/OIDA-Intl-Journal-Sustainable-Dev.html
Abstract: This paper addresses issues and challenges
clients face in claiming rights to Islamic inheritance
in Malaysia. After independence, Muslims witnessed
changes in the legal system of Malaysia that affected
the administration and distribution of Islamic
inheritance. The administration of Syariah courts is
bound by Islamic Laws that were placed in the State
List of the Federal Constitution. Constitutional
amendments are called for; they may simplify the
processes involved, but not without conflict. The
Muslims need to abide by Syariah-compliant
principles has also not been able to push for the
construction of one single complete system that can
handle the whole management and distribution
process of Islamic inheritance. Over the years, claim
processes were very costly and time-consuming. This
paper acknowledges that there exists a low awareness
among clients of processes and procedures to follow
in order to complete a claim submission process, and
identifies lack of guidelines to be the main cause of
the problem. This paper is a part of an on-going
study that proposes to use a new network flow
programming model as an alternative solution to
issues and problems associated with the
administration and distribution of Islamic inheritance
in Malaysia.
Keywords: Constitutional Amendments, Islamic
Laws, Network Flow Programming, State List,
Syariah- Compliant
I
NTRODUCTION
his paper is a part of an on-going study on the
development of alternative solutions to issues
and problems associated with the
administration and distribution of Islamic inheritance
in Malaysia. There has been an increasing trend in
volumes of unclaimed inheritance over the years
(BERNAMA, 2010; Dewan Rakyat Parlimen Kedua
Belas Penggal Ketiga Mesyuarat Pertama Bil. 11,
2010; Rakyat Guides 3, 2010; Salam, 2006). The
accumulation of unclaimed inheritance is a serious
problem and needs to be addressed.
The legal system of Malaysia was affected by British
colonization. As a result, Malaysian Muslims face
constitutional issues related to Islamic inheritance
distribution. In addition, they also incurred expensive
cost and lengthy time before realizing their claims to
estates left behind by a deceased person.
In order to consolidate the affected legal system to
the needs of the multi-racial clients in Malaysia, four
institutions were initially authorized to manage
Islamic inheritance. They were Amanah Raya
Berhad (ARB), Civil High Courts, Syariah Courts
and Office of Land and Mines (Land Office)
(Mahamood, 2006c). However, British colonization
has limited the jurisdiction of the Syariah courts, thus
they do not have the authority to distribute Islamic
inheritance (Ahmad Bustami, 2007; Buang, 2006a).
Muslim clients would like to be assured of a Syariah-
T
28 Noordin et al. / OIDA International Journal of Sustainable Development 03:12 (2012)
compliant Islamic administration and distribution of
Islamic inheritance. However, the limitations of the
legal system and the need to abide by Syariah-
compliant principles put together have not been able
to produce one single complete system at present that
can handle the whole management and distribution
process of Islamic inheritance (Abdul Rahman, 2008;
Awang, 2008; Mohamad Cusairi @ Khushairi, 2003;
W. A. H. Wan Harun, 2009).
The plight of the Muslim clients is not over. It has
been observed that Muslims were also handicapped
to with no clear guidelines on the processes to follow
to claim rights to Islamic inheritance. Due to this,
they have over the years endured spending lots of
time and money before they are able to realize their
rights to the estates (Abd Ralip, 2011; S. G. Abdul
Rahman, 2006; Kurang faham punca pengagihan
harta lewat," 2010; Mahamood, 2006a; W. A. H.
Wan Harun, 2009; Yaacob, 2006).
Constitutional amendments can help simplify some of
the processes clients have to through to claim rights
to inheritance. About 40 amendments were made in
between 1957 and 2010 to the Malaysian constitution
(Faruqi, 2011). However, these amendments do not
come without conflicts, for example, Article 121
(1A) (Ahmad Bustami, 2007; Mahamood, 2006b;
Marican, 2004; Mohamad, 2008; Shuaib, 2003,
2007). Thus, they would not provide the most
practical solution to the problem.
F
OCUS
O
F
P
APER
This study sets out to find other practical alternative
solutions to the problem. The administration and
distribution process can be modeled as a network,
thus this study proposes the use of Network Flow
Programming to minimize the time and cost involved
in the Islamic inheritance administration and
distribution process. However, this paper will only
focus on describing the most prominent issues and
challenges faced by clients and will centre its
attention on Islamic inheritance classified as Small
Estates. At present, if the inheritance involves Small
Estates, clients can claim their rights to the estates by
submitting completed forms to the Land Office.
They can opt to self-apply, to contract the services of
lawyers, or to apply via ARB (Abdul Rahman, 2008;
Lee, 2008; Mahamood, 2006a; W. A. H. Wan Harun,
2009).
In line with this focus, this paper will present its
views from five perspectives: i) Syariah-compliant
principles of Islamic inheritance distribution, ii)
History and its impact on inheritance distribution, iii)
Time, cost and constitutional issues in the present
Islamic inheritance distribution process, iv) Analysis
of current approaches to the problem, and v)
Unawareness of clients. This is followed by
significances of discussions and then conclusion.
Syariah-compliant principles of islamic
inheritance distribution
Muslim clients would like to be assured of a Syariah-
compliant Islamic distribution in the administration
and distribution process of Islamic inheritance.
Syariah-compliance demands that four claims on the
total inheritance of the deceased must be fulfilled,
namely, i) funeral expenses i) payment of debts owed
by the deceased, iii) execution of a valid will, and iv)
distribution of estates among inheritors (Abdul Hai
'Arifi, 2000; Awang, 2008; Bakar, 2006; Zuhaili &
Ali Shabuni, 2010).
To comply with these four claims, clients have to go
through two processes in order to claim rights to
inheritance. At the end of these processes, clients
submit a completed claim form to the respective
institution. In particular, distribution of Small Estates
will only take place once the claim form (Form A or
Form P) along with all the required certified
documents are submitted for processing at the Land
Office (Buku Panduan Permohonan Pusaka Kecil,
n.d.; Small Estates (Distribution) Act 1955 (Act 98) &
Regulations, 2007).
Islam governs the transfer of wealth upon death from
a deceased person to living heirs in the form of
money, land, or other rights as required by Syariah.
It rules that at least two third of the estate can be
inherited by various categories of relatives and
permits one third to be bequeath in a will (Ahmad
Bustami, 2007; Ali Al-Shabuni, 2006; Bakar, 2006;
Powers, 2006; Zuhaili & Ali Shabuni, 2010). This
transfer will only take place upon fulfilling
compulsory obligations to the dead, by settling the
first three listed claims on the inheritance (Abdul Hai
'Arifi, 2000; Ali Al-Shabuni, 2006; asy-Syafi'i, 2009;
Bakar, 2006; Inheritance (Family Provision) Act
1971 (Act 39) & Distribution Act 1958 (Act 300),
2010; A. Muhammad, 2009; Small Estates
(Distribution) Act 1955 (Act 98) & Regulations,
2007; W. A. H. Wan Harun, 2009). The completion
of these tasks marks the success on the first process.
The second process involves activities where clients
validate three types of documents (W.A.H. Wan
Harun, 2011). Muslims are required to comply to
the principles of al-muwarrith (determination of the
type of death by the deceased), al-warith (cerfication
of an existing list of heirs and sharers), and al-
mauruth (confirming the existence of estates),
respectively (Abdul Rahman, 2008; Awang, 2008;
Zuhaili & Ali Shabuni, 2010). The legal process
involves certifying all documents related to these
principles (Abdul Rahman, 2008; Mahamood, 2006b;
W.A.H. Wan Harun, 2008, 2011).
Noordin et al. / OIDA International Journal of Sustainable Development 03: 12 (2012) 29
These processes seemed easy to follow. However,
over the years, both these processes have proven to
be difficult for majority of clients to handle. They
have to incur spending lots of time and money before
their claims are realized (Abdul Rahman, 2008;
Bakar, 2006; W.A.H. Wan Harun, 2011; Yaacob,
2006).
History and its impact on inheritance distribution
The paper will take a look at history to understand the
impact of British colonization on the legal system of
Malaysia. Before independence, the British
administrative policies managed to displace some
Islamic laws and marginalized the Syariah courts”
(Shuaib, 2003). Although Islam was listed as the
religion of the federation after independence, this
endorsement was not able to place Islamic laws in the
Federal list of the Federal Constitution (Abd. Majid,
1997; Nasohah, 2004).
Islamic inheritance distribution is very much
dependent on the legal system. The following
sections will describe seven major changes brought
about by British colonization that affected not only
the administration and distribution process of Islamic
inheritance but also the heirs of Islamic inheritance.
Dual system of courts
The legal system of Malaysia functions on two court
system: a civil court and a Syariah court. practices a
dual system of courts. Civil courts were set up under
article 121 of the Malaysian Constitution and
command the larger portion of the constitution, thus
all Malaysians are subject to this jurisdiction (Shuaib,
2003). On the other hand, Syariah courts were set up
by the States and these courts administer Islamic law
only on Muslims (N. Abdul Rahman, 2006;
Mohamed Ibrahim, 2000; Z. Zakaria, 2006).
The Federal Constitution cannot be used to determine
the authority of the Syariah courts to issue
judgments. However, there are no provisions in the
State laws to issue judgments on some cases, thus the
functions of the Syariah courts cannot be properly
executed, such as cases involving a non-Muslim. Due
to this, clients have to process their inheritance cases
through both Civil and Syariah Courts which will
cost time and money (Buang, 2006b; Shuaib, 2003,
2007).
Clause (1A) to article 121
Clause (1A) was added to article 121 after Parliament
passed the Constitutional (Amendment) Act 1988.
LRB (2009) displays the provision of this clause as
The courts referred to in Clause (1) [High courts
and inferior courts] shall have no jurisdiction in
respect of any matter within the jurisdiction of the
Syariah courts.”
Prior to 1988, many decisions made by the Syariah
courts were overturned by the civil courts (Ahmad
Bustami, 2007; Buang, 2006a; Marican, 2004;
Shuaib, 2003, 2007). The inclusion of Article 121
(1A) to the Constitution did not guarantee total non-
interference from the civil courts. There were
instances where Syariah courts were not conferred
the jurisdiction to preside over the case (Ahmad
Bustami, 2007; Marican, 2004; Shuaib, 2003, 2007).
Although civil courts have the power to decide which
court has the jurisdiction to adjudicate a particular
case, judges of both courts have the responsibility to
promote the general legislative intent behind any
provision in order to save time and cost on
unnecessary proceedings, as seen in the handling of
the Jumaaton vs Raja Hizaruddin case (Ahmad
Bustami, 2007; Mohamad, 2008; Shuaib, 2003).
Placement of inheritance laws in the State List
The Federal Constitution has three lists: Federal List,
State List and Concurrent List. The Federal and State
Lists can only be amended by the Parliament and the
Legislative Assembly respectively while the
Concurrent List can be amended by both Parliament
and the Legislative Assembly (Rakyat Guides 3,
2010). In particular, Islamic laws on succession,
testate and intestate have been placed in the State List
(Ahmad Bustami, 2007; Buang, 2006a; Federal
Constitution, 2009; Mohamed Ibrahim, 2000;
Sulaiman, 2006). Thus, only Legislative Assemblies
can draft and then enact State laws to amend these
Islamic Laws.
The judgments on some civil cases indicate that the
Syariah courts cannot issue orders within their
jurisdiction because there are no provisions in the
State Laws that would levy the power to do so
(Ahmad Bustami, 2007; Buang, 2006a). In particular,
it would of great advantage to the Muslims [in terms
of time and money] if the State Laws could draft and
enact separate laws on probate and administration for
the Syariah courts (Ahmad Bustami, 2007; Mohamad
Cusairi @ Khushairi, 2003).
No total authority over the administration and
distribution of Islamic inheritance
Islamic laws are State Laws, but this does not provide
that Syariah courts have total authority to handle
Islamic inheritance cases. Section 50 of Act 505
stipulates that If in the course of any proceedings
relating to the administration and distribution of the
estate of a deceased Muslim, any court or authority,
other than the Syariah High Court or a Syariah
Subordinate Court, ..., the Syariah Court may on the
request of such court or authority, or on the
application of any person claiming to be a
beneficiary or his representative and on payment by
him of the prescribed fee, certify the facts found by it
30 Noordin et al. / OIDA International Journal of Sustainable Development 03:12 (2012)
and its opinion as to the persons who are entitled to
share in the estate and to the shares to which they are
respectively entitled”(Akta Pentadbiran Undang-
Undang Islam (Wilayah-Wilayah Persekutuan) 1993
(Akta 505) dan Kaedah-Kaedah & Administration of
Islamic Law (Federal Territories) Act 1993 (Act 505)
and Rules, 2010).
This clearly indicates that Federal Constitution has
provided the Civil Courts with the jurisdiction to deal
with the procedural aspects of the administration of
Muslim estates (Abdul Rahman, 2008; Ahmad
Bustami, 2007; Mahamood, 2006b; Marican, 2004;
Mohamed Ibrahim, 2000; Shuaib, 2003, 2007; Small
Estates (Distribution) Act 1955 (Act 98) &
Regulations, 2007). The civil jurisdiction of the
Syariah courts only entitles them to hear and
determine actions and proceedings dealing with
subject matters with a value not exceeding RM50000
(Administration of Islamic Law (Federal Territories)
Act 1993 (Act 505) & Rules, 2006), which is less than
the value of Small Estates.
No uniformity between Islamic laws in all states
Since Islamic Laws are State Laws, they are not
uniformly similar in all states (Buang, 2006a;
Sulaiman, 2006). Consequently, there is also no
uniformity in the administration of the Syariah
Courts in all states. Because of this, inheritance
claim is confined within the state in which most of
the assets are located (Mahamood, 2006b; Small
Estates (Distribution) Act 1955 (Act 98) &
Regulations, 2007). It is really troublesome for a
client to claim his inheritance outside the boundaries
of the state within which he resides. Thus, the
uniformity in the administration of the Islamic Laws
across the states is very much welcome.
Limitations of the Faraid Certificates
Syariah courts have limited jurisdiction with regards
to Islamic inheritance. Syariah courts have the
authority to issue Faraid certificates that can be used
to confirm the list of legal inheritors and their
proportionate allocations to the inheritance, and
certify a will, if one is present. However, these
Faraid certificates do not provide the person
obtaining them the authority to distribute the
inheritance. It is the person who obtains the Letter of
Administration from the Civil High Courts that has
the power to do that (Mahamood, 2006a; Marican,
2004; Small Estates (Distribution) Act 1955 (Act 98)
& Regulations, 2007).
No authority to distribute Islamic inheritance
Syariah courts are not authorized to issue an Order
for Distribution (Abdul Rahman, 2008; Buang,
2006b; Federal Constitution, 2009; Mahamood,
2006a). Although four institutions were originally set
up to administer Islamic inheritance in order to
overcome the limitations of the legal system, clients
can only claim to distribute inheritance at the other
three institutions (Mahamood, 2006a; W. A. H. Wan
Harun, 2009). In particular, clients claiming rights to
Small Estates can do so at the Land Offices (Abdul
Rahman, 2008; Mahamood, 2006a; W. A. H. Wan
Harun, 2009).
Using the directives within the Ministral Functions
Act 1969, the deputy managers at the Land Offices
are qualified second class magistrates, thus are able
to issue Faraid certificates (Abdul Rahman, 2008).
Hence, Land Offices can now issue their own Faraid
certificates using the e-Faraid software which was
embedded into their e-Tapp system since 1999
("USM Plans to Export Software," 2002). There is
no necessity for client to go Syariah Courts for the
Faraid certificates if they are submitting their claim
forms at the Land Offices but clients still do that
(Abdul Rahman, 2008; Mahamood, 2006a).
Time, cost and constitutional issues in the present
islamic inheritance distribution process
Unclaimed inheritance poses a serious problem to the
country. There was an increasing trend in the number
of unsettled inheritance cases beginning 2005
onwards (Ahmad & Laluddin, 2010). Almost one
million land title deeds still belonged to the deceased
(Salam, 2006). The gravity of this problem was felt
by the nation when it was recently announced in
Dewan Rakyat that the number of estates left to be
claimed until February 2010 was worth RM72
million. This value will increase to RM38 billion, if
these assets are converted to liquidities (BERNAMA,
2010; Dewan Rakyat Parlimen Kedua Belas Penggal
Ketiga Mesyuarat Pertama Bil. 11, 2010). This
paper acknowledges the seriousness of the problem.
It will address this problem by discussing three main
issues affecting the distribution and inheritance
process of wealth of a deceased. They are time, cost
and constitutional issues.
The 2007 statistics of number of inheritance claims to
Land Offices based on year of death indicated that the
percentage number of claims submitted to the Land
Offices was still very small (W.A.H. Wan Harun,
2011). This paper observed some interesting patterns
in the findings, as displayed in Figure 1. Land
Offices in 2007 witnessed that only about 21% of
claims were made in the year of death. This
percentage dropped until it reached the seventh year
after death, then rose back until it reached the peak at
twenty years after death. Then the percentage
decreased continuously until it reached the 1% for
deaths that took place seventy years back.
Noordin et al. / OIDA International Journal of Sustainable Development 03: 12 (2012) 31
Figure 1: Observed Pattern in Percentage of Submitted Claims to Land Offices
Table 1: Amendments to the Small Estates(Distribution) Act 1955
DATE AMENDMENT MADE TO ACT SUPPORTING DOCUMENT
May 14 1974
The value of estate increased from
RM10000 to RM25000
Federal Government Gazette
No. PN. PJ2
June 9 1977
The value of estate increased from
RM25000 to RM50000
Act 399 Amendment to Act 98
February 22 1982
The value of estate increased from
RM50000 to RM300000
Act A 533 Amendment 1982
January 1 1989
The value of estate increased from
RM300000 to RM600000
Act A 702
September 1 2009
The value of estate increased from
RM600000 to RM2 million
Act A1331
Source: Abdul Rahman (2008)(2008); Yang (2008); Varughese (2009) & “List of Bills” (List of Bills, 2007)
32 Noordin et al. / OIDA International Journal of Sustainable Development 03:12 (2012)
Table 2: Suggestions and Recommendations from Previous Works
ITEM
NO.
CHRONOLOGY OF AUTHOR
ACCORDING TO YEAR
SUGGESTIONS FOR
IMPROVEMENTS
1.
Mohamed Ibrahim (2000)
Mohamad Chusairi @ Khusairi (2003)
Buang (2006)
Abdul Rahman (2006)
Mahamood (2006)
Ahmad Bustami (2007)
Shuaib (2007)
Awang (2008)
Disa (2009)
Muda (2009)
Wan Harun (2009)
Amending certain laws, or drafting
and enacting new laws or statutes to
improve the functions of the Syariah
courts and to expand the jurisdiction
of the Syariah Courts such as Probate
and Administration Act, Faraid Act,
Hibah Act, or Wasiyyah Act.
2.
Mohamad Cusairi @ Khushairi (2003)
Abdul Rahman (2008)
Wan Harun (2009)
Centralize all institutions handling
Islamic inheritance in the form of
“Mahkamah Pusaka” [translated as
“Inheritance Court”].
3.
Buang (2006)
Abdul Rahman (2008)
Encourage heirs to set up family
holdings for land with shared deeds
and forming a fund to buy nearby
lands that can undergo development
4.
Shuaib (2003)
Ahmad Bustami (2007)
Shuaib (2007)
Promote general legislative intent
behind any provision
5. Mohamad (2008)
Harmonizing common law and
Syariah
6. Ahmed & Laluddin (2010)
Promote wasiyah and al-wisoyah to
manage and disseminate wealth
before death to eligible heirs over
Faraid
Table 3: Efforts to Improve Islamic Inheritance Distribution
EFFORTS YEAR STARTED
Technical committee headed by Tan Sri Ahmad Ibrahim failed in
their effort to to set up “pusaka” (inheritance) enactment (Mohamad
Cusairi @ Khushairi, 2003).
1989
The bill to restructure the Syariah courts passed on July 3 1993 led
to the formation of the Syariah Judiciary Department Malaysia
(JKSM Profile, n.d.)
1998
The e-Faraid software was successfully built by three Universiti
Sains Malaysia lecturers to simplify the distribution process
according to Faraid ("USM cipta sistem maklumat faraid
berkomputer," 1998).
1999
The e-Faraid software was embedded into the JKPTG system
(Hussain, 2007).
2000
The seventh e-government project called E-Syariah was set up to
form electronic networks between the Syariah courts and other
government departments in Malaysia (N. Zakaria, 2004).
2001
Noordin et al. / OIDA International Journal of Sustainable Development 03: 12 (2012) 33
Inheritance cases have been left unclaimed for many
reasons. Yaacob (2006) reported that it may take up
from three to ten years to complete a claim process
and there were cases that prolonged to more than
twenty years. Clients have also to endure the
financial burden associated with the processes that
took too long.
The previous section discussed the effects limited
jurisdiction of the Syariah courts and associated
constitutional issues regarding the jurisdiction have
on time and money a client spent to claim their
inheritance. In particular, for Small Estates cases,
this paper believes that had clients known about these
effects, they would have submitted their claims at the
Land Offices from the start.
The following paragraphs will proceed to look at the
Small Estates (Distribution) Act 1955. It is an act
used as reference for the administration and
distribution process of Small Estates. Amendments
have been made to this act from its inception. Table 1
describes the change this act has undergone up to
2009.
Observe in the last two highlighted rows that there
was a lapse of more than 20 years between the last
two amendments. Although the last bill was passed
in 2007, it only took effect on September 1 2009
(Varughese, 2009). This paper stands by the opinion
that constitutional amendments can help improve the
inheritance distribution process, but there is so much
time taken to pass a constitutional amendment and
there is added time to get it to be implemented. Thus,
constitutional amendment is not the most practical
solution to the inheritance distribution problem.
The amendment which took effect on September 1
2009 redefined the term “Small Estates” in the Small
Estates Distribution Act of 1955. The words “six
hundred thousand ringgit” in Subsection 3(2) of the
principal Act were substituted with the words “two
million ringgit.” Thus, the current definition of the
term “Small Estates” includes all assets worth not
more than RM2 million (Sittamparam, 2009; Small
Estates (Distribution) (Amendment) Bill 2007, 2007;
W. A. H. Wan Harun, 2009).
This change led to a migration of cases fitting the
definition from the High Courts to the Land Offices,
causing a 30% increase in the number of claims to
Land Offices ("Redistribution of small estates made
easier," 2010). Majority of cases are now handled by
Land Offices (Sittamparam, 2009). This has brought
about a positive change in that majority of clients do
not have to allot unnecessary money and time waiting
in line for their cases to be heard at the High Court
which adheres to the bigger portion of the
constitution.
The Land Office was able to resolve 87% of all cases
submitted as of December 31 2009, meeting the
ministry’s KPI which was set at 80%. However, it
was only able to settle 40.4% of all new applications
within six months, a difference of 5.6% from the
original KPI of 50% (Pencapaian Piagam Pelanggan
bagi suku tahun ke Empat 2010 (Oktober -
Disember), n.d.; Redistribution of small estates made
easier," 2010). This paper applauds the proposal to
increase number of computerized work stations at all
Land Offices beginning 2011 to help fasten delivery
services by increasing number of immediate
registration of cases. However, the processes involve
only cases with completed claim forms and do not
include incomplete claim forms. Incomplete claim
forms constitute the theme to the issues of time and
cost in the distribution and inheritance problem.
Analysis of current approaches to the problem
It was the intention of the e-government in Malaysia
to transform the way government operates as well as
how it delivers services to the public. IT
advancements were also made to ease the problems
of delay in the management of inheritance, such as e-
Shariah portal ("E-Syariah making courts efficient,"
2007; N. Zakaria, 2004), USM’s e-Faraid software
(Abd Majid & Mt Piah, 2005; S. Hamzah, 2002) and
e-Tapp system.
In the past before the advance of IT, calculations for
the Faraid certificates depended on manual
calculations. Now, to help produce the Faraid
certificates, the Syariah courts are using the current e-
Syariah portal ("E-Syariah making courts efficient,"
2007; N. Zakaria, 2004) while the Land Offices use
the USM’s e-Faraid software which is embedded in
the e-Tapp system (Hussain, 2007). In particular, for
Small Estates, there is no denying the fact that e-
Faraid has helped to simplify the distribution process
at Land Offices and has some impact on lessening the
process time (Hussain, 2007; Pencapaian Piagam
Pelanggan bagi suku tahun ke Empat 2010 (Oktober
- Disember), n.d.). However, Hussain (2007)
reported there were some inaccuracies between the
solutions provided by e-Faraid and e-Syariah, thus
this paper questions the Syariah-compliancy and the
applicability of the system.
In addition, public managers have also testified that
e-Shariah has helped to reduce the number of
backlogs and improve time taken to complete a trial
(M. R. Muhammad, 2009), and reduce time to solve
some backlog cases on Islamic inheritance.
However, amidst these enhancements, the number of
unclaimed inheritance cases kept increasing (Ahmad
& Laluddin, 2010; Dewan Rakyat Parlimen Kedua
Belas Penggal Ketiga Mesyuarat Pertama Bil. 11,
2010), thus time reduction attributed to e-Faraid and
e-Syariah is minimal.
34 Noordin et al. / OIDA International Journal of Sustainable Development 03:12 (2012)
Previous studies in this area have presented various
perspectives and views on Islamic inheritance
distribution and offered suggestions to improve the
situation. Table 2 below summarizes the suggestions
and recommendations from some of these studies.
Some of these suggestions, with the exception of
Item No. 2, have been carried out to some extent.
Item No. 6 may not be acceptable to some people for
the simple reason that appreciation of wealth may
occur over time and the decision to divide wealth will
still have to be agreed upon after death has taken
place.
There were also efforts in the past by individual or
group of individuals or the government to improve
the administration and distribution process of Islamic
inheritance. Table 3 lists out efforts taken by
individual or group of individuals or the government
to improve the Islamic inheritance distribution.
Unawareness of clients
This section describes the degree of unawareness
among clients of processes and procedures to claim
their rights to inheritance. This paper acknowledges
that the issue of unawareness has to be dealt with in
the best possible manner.
Majority of clients have problems compiling
documents to complete the claim form. They are just
confused; they do not know where to start, how to
proceed and where to go to process a claim to
inheritance (Abd Ralip, 2011; Abdul Rahman, 2008;
Kurang faham punca pengagihan harta lewat," 2010;
Mahamood, 2006a; W. A. H. Wan Harun, 2009;
Yaacob, 2006).
At present, it is normal to see a client doing a formal
search of the databases or request a copy of the death
certificate at the National Registration Department
one minute and the next minute the same client is
seen at the High court or in front of a Commissioner
for Oaths trying to produce a Form of Declaration in
place of an untraceable death certificate (Mahamood,
2006a; W.A.H. Wan Harun, 2011). Sometimes
documents go missing and cannot be traced. To
overcome this, copies of lost documents must be
traced at different agencies and these processes take
time (Abdul Rahman, 2008; Mahamood, 2006a; W.
A. H. Wan Harun, 2009; W.A.H. Wan Harun, 2011).
Not only do clients have to endure lengthy process
time, they will also feel the bane in dealing with ARB
or lawyers when they have to pay hefty fees. For
Small Estates, ARB charges around two to three
percent on the value of estates while lawyers polled
by the New Straits Times charge between one and 1.5
percent on the value. Not many are aware that it’s
cheaper to process a claim at the Land Offices (Lee,
2008). Small Estates cases can be easily settled at the
Land Office for a fee as low as RM10 and as high as
0.2% of the value of the estates (Pembahagian Harta
Pusaka Kecil, n.d.).
Not many are aware that in some cases, there is a
necessity to appoint a lawyer, for example, for cases
to be handled by a High Court. However, a lawyer is
not that important to appoint if the submission of
claims are through ARB (Abdul Rahman, 2008).
S
IGNIFICANCE
O
F
D
ISCUSSION
Unclaimed inheritances are accumulating in numbers
over the years. This paper acknowledges the
seriousness of the problem and the need for it to be
addressed. This section will highlight the
conclusions that can be drawn from the previous
discussions.
Firstly, inclusion of Article 121 (A) into the Federal
Constitution was set up to avoid conflicting orders by
both courts over similar matters (Mohamad, 2008).
However, there still existed many areas where
conflicts may arise (W. A. Hamzah & Bulan, 2003;
Mohamad, 2008; Mohamed Ibrahim, 2000). There is
a need to revise the Constitution and the State Laws
in order to eradicate these conflicts. However,
amending laws takes a long time. Thus,
constitutional amendments would not be a practical
and tangible solution to the problem at hand. In the
absence of a revision process, Mohamad (2008)
suggested harmonizing processes between the court
systems would work well to settle cases involving
matters under the jurisdiction of both courts.
However, he pointed out that there will always be
added delays and additional costs to incur.
Secondly, the redefinition of Small Estates in the
Small Estates Distribution Act 1955 managed to save
majority of the clients from having to spend money
and time waiting in line for their cases to be heard at
the Civil High Courts (Pencapaian Piagam
Pelanggan bagi suku tahun ke Empat 2010 (Oktober
- Disember), n.d.; Redistribution of small estates
made easier," 2010). The success of Land Offices to
handle these cases depends on whether submitted
forms are complete. However, the positive changes
that took place at the Land Offices did not address the
issue of confusion among clients in trying to compile
the necessary documents needed for submission
along with the claim form. Thus, this is also not a
practical solution to the current problem.
Thirdly, suggestions and recommendations from the
previous studies in this area have helped to improve
the delivery system by the government. However,
these suggestions will only be able to be implemented
with the existence of new constitutional amendments
or decisions by the legislatures. That would consume
time. Thus, these suggestions are not tangible and
practical solutions to solve current problem of
lengthy process time and high costs in the
Noordin et al. / OIDA International Journal of Sustainable Development 03: 12 (2012) 35
administration and distribution of inheritance at the
moment.
Lastly, the high degree of unawareness among clients
should not be regarded. This problem of unawareness
among clients has to be taken as a signal for drastic
changes to be implemented. Lack of available
guidelines for flow of processes and beneficiaries has
been identified as the factor that is contributing the
most effect on the problem of lengthy time and costly
expenses in the distribution and inheritance problem.
C
ONCLUSION
Although many efforts have been undertaken to
improve the present system, this paper is particularly
concerned about the Syariah-compliance of the
present system that is not monitored. This paper has
identified time and cost as two main parameters to be
considered to ensure fluency throughout the
processes at the respective institutions (Da Fonseca
Lima, da Silva, & Vieira, 2006; Haga & O’keefe,
2001; Hillier & Lieberman, 2010; Kuhl & Tolentino-
Pena, 2008; Nikoomaram, Lotfi, Jassbi, & Shahriari,
2010; Shigeno, 2004; Singh, Smarandache, Chauhan,
& Bhagel, n.d.; Tibben-Lembke & Mitchell, 2007;
Tinnirello, 2001; Vittal & Sivakumar, 2006), thus, it
will highlight the contribution of this on-going study
to provide a single complete Syariah-compliant
network model that would be able to educate clients
by providing clear guidelines for processes and
beneficiaries involved in the distribution and
inheritance process (Bazaraa, Jarvis, & Sherali, 2003;
Chinneck, 2007; Taha, 2007).
A
CKNOWLEDGEMENT
This on-going research is supported by Universiti
Teknologi Mara Malaysia. Special gratitude is
extended to specialists in the field of inheritance
management and distribution at Ministry of Natural
Resources and Environment Malaysia.
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... It is extremely difficult for a client to claim his inheritance outside the borders of the state in which he resides. Therefore, uniformity in the application of Islamic Law across states is greatly welcomed (Noordin et al., 2012). ...
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The upward trends of frozen assets and remaining unsolved become worrying as the inheritance assets are not efficiently utilized. One of the root causes of frozen assets in Malaysia is the lack of awareness of estate planning among individuals, particularly the Muslim community. The increasing frozen assets were contributed by the low penetration of estate planning among individuals, which abandoned the estate administration process. Takaful hibah has been introduced as one of the Shariah-compliant products made accessible by Islamic Financial Institutions (IFIs) to overcome these issues. Its versatility is proven in risk management, mitigation, and wealth management, especially in estate planning. Integrations of takaful and hibah have provided reduced time and cost consumption for the inheritance process for Muslims in Malaysia. Further, past research on estate planning related to takaful hibah is still limited to consumer purchasing intentions on takaful hibah. Therefore, this paper aims to determine the relationship between attitude, subjective norms, perceived behavioral control, and knowledge towards the intention to purchase takaful hibah. Findings in this study perhaps will focus on twofold contributions. First, it directs the takaful hibah operators to enhance their marketing efforts, such as more product awareness towards the Muslim working adults population. Second, regarding academics, this finding helps boost education programs by stimulating the attitude to purchase the takaful hibah. Hence, our study contributes to filling the knowledge gaps on the takaful hibah, as one of the Islamic estate planning tools, particularly among Muslims in Malaysia.
... The reason for the rising number of these cases is that the Muslim community in general does not possess the right instruments to help them resolve this issue, hence the need for other ways to distribute estates belonging to Muslims. One such way is Islamic estate planning, which may be construed as applying Islamic law and principles to comprehensively develop a plan to manage the distribution of an individual Muslim's estate, and to achieve that person's specific financial objectives (Omar, 2006;Noordin et al., 2012). The process of wealth and assets distribution takes considerable time and expense, therefore the objective of estate planning is to minimize cost and save the family from difficulty (Mujani et al., 2011). ...
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Estate planning is one of the crucial elements of managing property during a person’s lifetime. It involves both handling and managing property during one’s lifetime and after death. For Muslims, the objectives of Shariah, which are known as Maqasid Shariah, can be attained if their finances are planned in a wise and cost-effective manner. Unfortunately, it was reported that frozen inheritance assets have steadily increased from the day of Independence, amounting to RM70 billion in 2020 indicating the seriousness of the matter. The freezing of inheritance property is detrimental to the economy and thus opposes the spirit of Maqasid Shari’ah which recommends that it should be properly managed for the benefit of the public. This is where estate planning plays its role in ensuring quicker and easier distribution of assets and property. Hence, the objective of this research is to investigate Malaysian Muslims’ tendencies in estate management planning and its determinants. A total of 406 respondents throughout Peninsular Malaysia responded to the prepared survey, where the Partial Least Squares Structural Equation Modelling (PLS-SEM) approach was employed as the main data analysis for this study. The findings revealed that altruism, advantages and compliance were significant in influencing tendencies of Malaysian Muslims in Islamic estate planning. Surprisingly, service was found to be an insignificant factor in influencing the tendencies of Malaysian Muslims in Islamic estate planning. This study provides some insights on the role of policymakers and estate planning related industry in ensuring the compliance of estate planning product and increasing the awareness of Muslims to do estate planning by promoting the advantages and importance of doing so. Policymakers are also welcome to engage in this matter by providing earlier education on Islamic estate planning among Muslims in Malaysia.
... Waris-waris juga tidak mempunyai pengetahuan yang banyak terhadap proses tuntutan pusaka. Mereka hanya berpandukan maklumat dari mulut ke mulut sahaja tanpa mendapatkan maklumat yang tepat dari pihak yang sepatutnya (Md Azmi & Mohammad, 2015;Noordin, Shuib, Zainol, Azam, & Adil, 2012;Zulkafli & Ahmad, 2016). ...
... As reported by Hussain (2007), the e-Faraid and e-Syariah systems had played an important role to ease the legacy distribution process and cut the processing time. However, the systems presented problems related to the accuracy of the solution from calculations given to the heirs in dividing the assets (Noordin et al., 2012). Although the systems had shown a decrease in backlogs and had shorten the time taken to settle a trial (Muhammad, 2009), the amount of unclaimed assets is still high (Ahmad and Laluddin, 2010). ...
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There is an alarming amount of frozen and unclaimed assets in Malaysia. Among the factors that contribute to this situation is the failure of the decedent to leave a will to the heirs of the estate or to leave the important documents necessary to initiate the distribution of the estate. This lack of preparation will inimitably put the heirs in a difficult position because they will have to spend their time and money to search and collect all related information and documentation related to the estate to assist them in liquefying and distributing the assets. With the advancement of information technology, there are information systems that had been built to manage and plan the estate of individuals. However, these systems have limitations and are unsuitable to be implemented in Malaysia because of different laws and procedures. Therefore, this paper proposes a personal legacy information system that will allow the owner to manage information such as assets, debts, wills and personal secrets, in a single platform. In addition, the owner can keep related documents to the information that are required for asset planning and distribution, especially in the Malaysian context. The owner can appoint a trustee(s) through the system and all information will be released by the system to the trustee when the owner dies. By applying encrypted communication, the legacy data will be kept secure. Static analysis is described at the requirement level for specifying the functional requirements of the system, using Z Specification. We hope that the proposed system will help mitigate the issues surrounding the problem of frozen and unclaimed assets.
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Chapter
Islamic law of inheritance or faraid plays a crucial role in Muslim society. The law caters to the division of property of the deceased among the family members. Using a specific calculation as provided for in the Quran and the practice of Prophet Muhammad (peace be upon him), Muslims are bound by the calculation of portions entitled to each family member who survives the deceased. To make it easy for the Muslims to comply with the calculations as provided in Islam, the Malaysian Government has made it into law. This enables Muslims to seek authorised experts in dividing their inheritance. Today, the expertise is widespread and available with other authorities, not just the Shari’ah courts. Nevertheless, being the court that decides on Muslims’ personal affairs, including the inheritance, the Shari’ah court is only conferred with limited jurisdiction. Other than analysing the functions of each authority in the administration of inheritance matters, the chapter also looks into the challenges of the Shari’ah courts in resolving such cases under the limited jurisdiction.
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Pengurusan Harta Pusaka: Permasalahan sikap masyarakat Islam penyelesaiannya menurut Perspektif Islam
  • M Y Ahmad
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Ahmad, M. Y., & Laluddin, H. (2010). Pengurusan Harta Pusaka: Permasalahan sikap masyarakat Islam penyelesaiannya menurut Perspektif Islam. Shariah Law Reports, 4(October - December), ShL R 30-34.
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Bakar, H. (2006). Pengalaman Amanah Raya Berhad (ARB) dalam pentadbiran harta amanah orang Islam. In S. M. Mahamood (Ed.), Harta Islamic Law (Federal kuasa dan tatacara di Malaysia dan Undang-Undang Islam Malaysia. r36 Noordin et al. / OIDA International Journal of Sustainable Development 03:12 (2012) amanah orang islam di Malaysia (1st ed., pp. 133-148). Kuala Lumpur: Penerbit Universiti Malaya.
Pengantar undang-undang Islam di Malaysia
  • Abd Majid
Abd. Majid, M. Z. (1997). Pengantar undang-undang Islam di Malaysia. Kuala Lumpur: Penerbit Universiti Malaya.