Islam's is never a collection of inheritance laws alone; it prescribes a set of social security measures too. Indeed, these two sets of laws are delicately inter-woven one with the other In fact, the very basis of inheritance itself lies in that sense of duty towards mutual security and cooperation. Ordinarily, therefore, the right of inheritance belongs to the person who is duty found to help out the one afflicted with misery and privations. The son is duty-bound to protect the father even as the father is so towards the son. The grandson is, however, not obliged to protect the grandfather if he has a son; if not, he will be duty-bound to do so. (This is also the reason why the orphaned grandson will have no legal share in the wealth of inheritance). It is, furthermore, the duty of the grandfather to protect the children who have lost their father. Indeed, the Qur'an views the indifference shown to orphans as being tantamount to the very denial of religion itself.
'Seest thou one who denies the Judgement (to come)? Then such is the (man) who repulses the orphan (with harshness).' (107:1,2)
'Therefore treat not the orphan with harshness..' (H.Q. 93:9)
'... Treat with kindness your parents and kindred, and orphans ...' (2:83)
The Qur'an teaches that it a grievious sin to usurp the wealth of the orphans.
'To orphans restore their property (when they reach their age), nor substitute (your) worthless things for (their) good ones; and devour not their substance (by mixing it up) with your own. For this is indeed a great sin.' (H.Q. 4:2)
'And come not nigh to the orphan's property, except to improve it, until he attains the age of full strength.' (H.Q. 6:152)
The Prophet had taught never to do anything that would in any way infringe upon the respect that is due unto the orphans. Muhammad, who had given the glad tidings that the one who protects the orphans will enter Paradise in his company, had also forewarned that one of the greatest of sins is the misappropriation of the wealth of orphans. It is, in itself, the duty of every Muslim to protect the orphans who have no family ties, whatsoever. Then does the duty of the Muslim in protecting those of the orphans who are actually related to him need any further recommendation? The responsibility of protecting them mainly rests with the grandfather. In the event of the grandfather's demise, it is the paternal uncle who must then assume the responsibility of guardianship.
It is the grandfather who ought to protect the orphaned grandson. He is provided with all his requirements by the grandfather. He is well-aware of all his problems and difficulties. He also has the knowledge that his grandson is not entitled to any share in his wealth. He has the right, however, to keep aside a good portion of his wealth for the protection of his grandson. It is for such reasons that the Qur'an has made wassiyyat compulsory.
Wassiyyat is the a portion of the wealth bequeathed which becomes the property of the person in whose name it is made with the death of the person who actually makes it. The Holy Qur'an has given great importance to the institution of Wassiyyat.
'It is prescribed, when death approaches any of you, if he leave any goods, that he make a bequest to parents and next of kin. According to reasonable usage; this is due from the God-fearing.' (H.Q. 2:180)
It can be seen that the Prophet recommended the making of the bequest in view of the Wassiyyat of, and preparedness for, the arrival of one's own death which can happen at any time. (Bukhari, Muslim). Indeed, the messenger of God had greatly encouraged the practice of Wassiyyat. He had also discouraged the avoidance of it. (Ahmed, Tirmidhi, Abu Dawood); From this, it may be inferred that Islam gave prime importance to the system of Wassiyyat.
A person has the right to allocate upto one-third of his total wealth as Wassiyyat. For whom, then, is Wassiyyat meant? The Prophet had taught that Wassiyyat is not meant for one's immediate successors. 'There is no Wassiyyat for the successors' (Ahmed, Thirmidhi)
For whom, then, is the Wassiyyat meant to be? That has to be of course decided by the person who intends to make it himself. The verse of the Qur'an (2:180) quoted above makes it clear that it must be made to those closest of relatives who come next to the immediate successors. This will, very importantly, include the orphaned grandson. The grandfather has the right to allocate any amount of his wealth to his grandsons. He can give away any amount of his wealth for the purpose while he lives. He can even give upto one-third of his total wealth as Wassiyyat. The condition that is to be fulfilled is that charity and Wassiyyat must not be so allocated that the rightful owners and other dependents, who are rendered poor and helpless, are not denied their rights.
This is what Islam has done in the case of the orphaned grandson. The responsibility for his protection is entrusted to his grandfather; and after the death of his grandfather to his paternal uncle. The grandfather is thus given the complete freedom to allocate as much of his wealth as is necessary for assessing, and fulfilling, the needs of his grandson. For it is the grandfather who, more than any one else, knows best all concerning him. The grandfather is thus given the right to make a Wassiyyat of up to one third of his wealth for him as well as for others stricken with poverty and privations. It is also particularly prescribed that only after this wealth of the Wassiyyat is allocated that the remaining portion should be used by the successors as the wealth that is to go as inheritance. (4:11). It is further prescribed that if, when orphans become entitled to possess wealth, if they are yet to come of age, the close relatives are to be entrusted with its safe keeping and when they do attain to maturity, it is to be handed over to them. (4:6).
The Qur'an has also made the instruction to the effect that if the grandfather makes no Wassiyyat, the relatives of the orphan, or orphans, including the paternal uncle, should allocate a lawful share for them at the time of distributing the wealth of inheritance. (4:8,9).
Law has its own methodology. Islam seeks to abide by that methodology. However, it also handles the problems associated with the orphaned grandson without the strangulating confines of the law. Islam accomplishes this by heightening the moral consciousness of man, indeed, in such matters that would be the most practicable way as well.