Do the grandchildren( predeceased son’s children ) automatically inherit in the presence of the surviving son or sons of their deceased grandfather?
1. Take the following example: the father has two sons ( Zaid and Yusuf) and a daughter( Fathima).
2. Zaid dies in the lifetime of his father in a motor accident( that is, predeceases his father), leaving three children, two sons, and one daughter. ( “ grandchildren “)
3. The father subsequently dies: he is survived by his son ( Yusuf) and his daughter ( Fathima), and his three grandchildren, being the children of the predeceased son, Zaid.
4. Do the grandchildren ( children of the predeceased son, Zaid ) automatically inherit from the estate of their grandfather, in the presence of their surviving paternal uncle, Yusuf, according to the Islamic Law of Succession?
5. Stated differently, do the grandchildren automatically step into the shoes of their predeceased father ( Zaid), and take the share ( 2/5th) that would have devolved upon their father, Zaid, had he survived their deceased grandfather?
6. The answer by consensus is: No. The fundamental principle in this specific context of the grandchildren surviving in the presence of their paternal uncle/s (being the living son or sons of the deceased) , the agreed applicable rule applies to the effect that the nearer in degree to the deceased excludes the more remote. الأقرب يحجب الأبعد
7. The grandfather however has a mustahab duty to provide for the grandchildren, in these circumstances, either in his lifetime or through a wasiyah , namely, a voluntary testamentary bequest not exceeding one- thirds of the net estate, remaining after payment of debts. من ثلث ما بقى بعد الدين
8. A wasiyah is not compulsory: it is a voluntary gratuitous testamentary bequest to a close relative or a third party , who is not a prescribed heir of the deceased at the time of his or her death , but it’s grant is limited to and does not exceed one - thirds of the net estate. تمليك مضاف الى ما بعد الموت بطريق التبرع
9. It is important, in the case of a predeceased child of a testator leaving children, that the testator chooses to make an appropriate bequest in the form of a wasiyah in his will, bequeathing an appropriate share to his or her surviving grandchildren, subject to the condition that such wasiyah must not exceed one - thirds of his or her net estate remaining after payment of debts. و تجوز بالثلث للأجنبي عند عدم المانع : الدرر المختار
And Allah Knows Best
M S Omar
29 January 2022