The Share of the Brother and Sister
Ayah 12 refers to the share of Akhyafi brothers and sisters (i.e. from the same mother and different fathers; also referred to as half-brothers and half-sisters). Though, this restriction has not been mentioned in the present ayah, consensus holds it as creditable. The rendition of Sa’ad ibn Abi Waqqas radhiAllahu anha in this ayah is “..and he has a brother or sister from his mother..” as has been reported by al-Qurtubi, al-Alusi, al-Jassas and others. Although this rendition has not come to us through tawatur (a consistent narration of a very large number of persons in all ages) because of the consensus of the entire Muslim Ummah, it is worth practicing.
Another clear proof is that Allah subhanahu wa ta’ala mentions the inheritance of Kalalah at the end of this Surah as well. If it has been said there, there is one sister, she will get half. And if there is one brother, he will inherit the entire property of his sister. And if there are two sisters, they will get 2/3. And if there are several brothers and sisters, the male will be given twice that of the female. This command appearing at the end of the Surah refers to ‘Aini’ (real) siblings, and to ‘Allati’ (from the same father and different mothers) brothers and sisters. If Allati and Aini siblings were to be included here, it will cause a contradiction in command.
The Issues Regarding Will (Wasiyyah)
The shares of inheritance have been described thrice in this section and it has been said that this distribution of shares comes after the execution of will and the payment of debt.
As it has been stated earlier, one-third of what remains of the property, after taking care of the cost of the funeral for the deceased, and payment of debts, shall be applied to the execution of the will. If the will exceeds the extent of one-third, it is not legally enforceable.
According to the rule of Shariah, the payment of debt comes before the execution of will. If the entire property is used up in paying debts, there will be no will to execute and no property to distribute. At all the three places where ‘will’ has been mentioned, it appears before debt. As obvious, this gives the impression that the right of will precedes debt.
Removing this misunderstanding, Ali radhiAllahu anha said, “You recite the ayah. مِّن بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَآ أَوْ دَيْنٍ that is settling the will they might have made, or debt [where ‘will’ comes first] but [practically] the Prophet, may peace and blessings be upon him, has settled debt before will.”
We have to know the point as to why will follows debt practically while in words, it has been mentioned earlier.
The mention of will before debt in the ayah is to emphasize upon the enforcement of the will. Since the beneficiary of a will deserves it without any price paid by him, and often without having a kinship with the testator, it was likely that the inheritors ignore to enforce it or, at least, may cause unnecessary delay in its execution because they may have not liked to see the property that was to be inherited by them, going to somebody else. So, it was to keep up the importance of will that it was mentioned before debt.
Then, it is also not necessary that every person incurs a debt, and if a person incurs it during his life-time, it is not necessary, that the said debt remains unpaid up to the time of his death. And even if the debt was due to be paid at the time of death, even then, since the claim of debt comes from the debtors to which the inheritors cannot say no, the likelihood of any shortcoming in this respect is slim. This is contrary to the case of will in which the deceased, when he bequeaths part of his property, earnestly desires that he should invest it in something good which serves as ongoing charity on his behalf. Since, there is no chance of a claim on this bequeathed property from any side, there was a possibility that the inheritors themselves might fall into some sort of shortcoming, in order to offset this likelihood the ‘will’ was mentioned first everywhere as a special measure.
(Taken from Maaruf-ul-Qur’an by Mufti Muhammad Shafi Usmani)