Lucy Carroll's article: Session 20

She talks about the differences in Sunni and Shia inheritance laws and
analyses how these are applied in South Asian courts.
If the sect of the deceased doesn't come in question, then Hanafi law
is automatically applied when dividing the assets.
When there is a conflict about the sect of the deceased, both parties
are supposed to bring evidence, documents and witnesses.
In Sunni law the agnate continues to occupy an important place in the
law of inheritance, in contrast to the shia emphasis on the nuclear
family and direct descendants.
If it is established that the deceased was a shia, its a presumption that
Ithna Ashari law governs the devolution of the estate. The family
would have to bring forward evidence if the deceased belonged to
a different sect, i.e Ismaili school.
The best and the strongest evidence to prove someones sect is by
submitting documents that are signed by the deceased himself - or
if he has identified himself as an adherent of either the sunni and
the shia sect. The will of the deceased or a transcript of his
testimony would be examples of such evidence.
Failing direct evidence on the point, circumstantial evidence
concerning the manner in which the deceased said his prayers or
the particular ceremonial rituals he observed may indicate an
identification with one or the other sect
The manner in which the the funeral ceremonies were conducted is of
limited evidential value.
In a case of this kind when both parties stand to gain or lose valuable
property the oral evidence is always to be approached with a lot of
caution and it is safer to rely on that evidence which is in accord
with admitted circumstances and probabilities
The burden of proof falls on those who claim that the deceased
renouced his/her sect or argue that he affiliated himself to a
different sect.
The ascertainment of the sect affiliation of the deceased is more
problematic in the case of a woman than a man. This is because
 women don't usually participate in public worship or sign enough
documentation to prove their identification.
Its not necessary that both the spouses follow the same sectarian
beliefs but, its easy for the men to say the their wives practiced the
same sectarian beliefs. If a woman's father and her brother
belonged to a certain sect, then there are strong chances that she
belongs to the same sect. In such cases, the court looks at how
the family divided assets following previous deaths.
The Estate of the Fatima Jinnah : She left a germane sister and
father's brother's agnatic grandsons. Miss Fatima Jinnah was
recorded to have said that she didn't belong to any sect and was
just simply a Muslim. The sister asserted that she was an Ithna
Ashari Shia and claimed Fatima Jinnah's entire estate. The male
agnatic relatives claimed otherwise; they said fatima Jinnah was a
Hanafi Sunni and they were entitled as residuaries to half of her
estate.
Muhammad Ali Jinnah and his sisters were born Ismaili Shias but he
renounced that sect and became an Ithna Ashari Shia. It was agreed
that Fatima Jinnah did the same and became an Ithna Ashari Shia. But,
there was a confusion if she had elected to become a Hanafi or not.
During her life, she didn't identify herself as either a Shia or a Sunni
publicly. The counsel of the agnatic claimants argued that since she did
not identify with either of the two sects, the default Hanafi law should be
applied. The court could not decide one way and reason that thats how
the Quran directs because then, the Jurists of the other sect would act
out.
The Judge reasoned that, her brother too never publicly affiliated himself
to one sect, but after his passing, she divided his assets in accordance
to Shia laws. This was not a religious matter but a legal one, so the
honorable Judge argued her assets should be divided according to Shia
laws. The trial judge held that for the purposes of determine the law that
would govern succession to her property, Miss Fatima Jinnah had to be
subject to Ithna Ashari Shia law.
In 1977, the decision of the Single Judge of the Karachi High Court was
appealed to a larger bench of the same court and it was argued that a
person doesn't have to fall in either of the two sects. the sectarian divide
occurred long after the death of the prophet and if someone identifies
herself as a simple and pure muslim, then she is guided and subject to
law of the Quran. Interpretations of the classical jurists of either sect
shouldn't apply.
The Appellant Bench overturned the decision of the trial court in favor of
the sister and concluded that since both the parties couldn't produce
sufficient evidence that the deceased was of either sect, the assets of
Miss Fatima Jinnah will be divided in accordance to with the pure Islamic
law, as is contained in Surah-Nisa.
After the decision of the Appellant bench was announced, both the
counsels applied for a consent order remanding the case to the trial
court, with permission for either side to lead further evidence and make
further submissions in regard to the faith/sectarian affiliation of the
deceased.

Daughters and descendants of daughters in competition with agnatic

collaterals are much more favorably placed in Shia law than in
Sunni law.
If a Sunni man only has daughters and wants his daughter to inherent
his property then, in India, the Indian Muslim couple may register
their Muslim marriage under the Special Marriage Act 1954. This
way the Succession Act 1925 would be applicable to the estate of
each spouse. The provisions governing intestate succession
contained in 1925 Act so not discriminate on the basis of sex. The
widow of the deceased is also favored under this act. This Act
gives the person complete testamentary freedom to dispose of all
his estate by will in whatever manner he chooses. The registration
under this Act requires the participation of both spouses.
In Pakistan or Bangladesh, the similar Act of 1872 can't be availed of
by any couple one or both of whim are Muslims so the only solution
to this for a Pakistan Sunni father with only daughters is to either
renounce his religion/sect or transfer the property in his daughters
 name during his lifetime.
Sunni and Shia schools may just be branches of Islam and can be
called the different schools of thought as far as Islamic
Jurisprudence is conceded, but it is important for a muslims to
either be a Sunni or a Shia as far as his/her legal position is
concerned - decided in the Fatima Jinnah Case
Can a person who is and claims to be a sunni elect to have his estate
distributed according to Shia rules? The difficulty that arises is very
fundamental - this instruction to divide his property according to
shia law would be considered his will and because he was a Sunni
at the time of his death, he can only will 1/3rd of this total estate
and that too, to someone who isn't already his legal heir.
Scholars are still unclear as to what the Appellant Court in the Fatima
Jinnah case referred to when it said, 'Pure Muslim law, in
accordance to the Quran"