Issues on orphaned grandchildren's rights of inheritance

Abstract

This thesis seeks to examine legal principles governing orphaned grandchildren under various disciplines in the Islamic law and the law as applicable in Malaysia. In Malaysia so far, only the States of Selangor, Negeri Sembilan and Malacca have provided the legal protection of orphaned grandchildren through the promulgation of wasiyyah wajibah respectively in the Muslim Wills (Selangor) Enactment 1999, Muslim Wills (Negeri Sembilan) Enactment 2004 and Muslim Wills (Malacca) Enactment 2005. Unlike the provisions in the Middle Eastern Countries in which the doctrine originates, the provisions in the above enactments are very brief and their applications remain unclear. To date, not a single case has ever been reported illustrating those provisions. Therefore, the research is undertaken based on the premise that, the present law governing the orphaned grandchildren in Malaysia remains very general and vague. The absence of sufficient guidelines may lead to inefficiency and non-uniformity in its application between the syariah courts in these States. The study on Islamic law as applied in other Muslim countries aims to examine on how far Malaysia can learn from them both in theory and practice for the improvement of legal protection of the orphaned grandchildren. The research includes an analysis of the relevant laws in Islamic law of inheritance (faraid), bequest (wasiyyah), gift (hibah) and other modem instruments like obligatory bequest (wasiyyah wajibah) as applicable in the Middle Eastern Countries, doctrine of representation ( doctrine of tanzil) as applicable in Pakistan and zakah distribution in the State of Selangor. Focus shall be given on the effectiveness of the above instruments to protect the interest of the orphaned grandchildren. The study also reveals that that the legal provision on the protection of orphaned grandchildren still requires reforms relating to the application of the law substantively and procedurally.