Estate Share of a Predeceased Child & Per Stirpes Clause (2/2)

Question

The Jamiat had previously sent out a Q&A titled: “Estate Share of a Predeceased Child” in which the Islamic rule was given that the children of predeceased children do not qualify as heirs and that any benefit to them will have to be stipulated as wasiyyah.

Can a parent state in their will that if a child or children passes away before them, the grandchildren can be bequeathed up to a third that is to be shared amongst them all?

Mufti Moosa Salie · Accepted Answer

Yes, such a bequest is permissible and valid.

It is considered Mustahab and recommended to make a bequest in favour of the children of one’s predeceased children. (Al-Fiqhul Islami 10: 7563)

From a legal viewpoint, a per stirpes clause in a will typically ensures that if a beneficiary predeceases the testator (the person making the will), the deceased beneficiary’s share (had they been living) will pass to their descendants (usually children) instead of being distributed among the surviving beneficiaries.

Here is an example of how a per stirpes clause may be worded:

“I direct that if any of my children predecease me, the share or shares to which such child would have been entitled if living shall be divided equally among such deceased child’s children, per stirpes, provided that this benefit is restricted to 1/3 of the nett estate allowed for bequests as per Islamic law.”

N.B. We advise consulting with a legal expert when drafting one’s will.

And Allah Ta’ala Knows Best

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