Case Studies of The Practice of Nomination and Hibah by Malaysian Takaful Operator

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Case Studies of the Practice of Nomination and Hibah by

Malaysian Takaful Operator
Article · December 2010
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Case Studies of the Practice of
Nomination and Hibah
by Malaysian TakÓful
Operators
Nurdianawati Irwani Abdullah* and Nazliatul Aniza Abdul Aziz**
Abstract
Nomination is a process whereby a policyholder who purchases the

insurance policy should name someone to benefit from the policy in the
event of the policyholder’s death. Nomination is purposely performed
to ensure the beneficiaries receive the takÉful benefits promptly. The
current practice of the nomination clause in family takÉful operation
is basically vague because the Takaful Act 1984 does not expressly
provide any rule to that effect. This study aims to examine the status
of nominees for Muslim participants and non-Muslim participants
in family takÉful as stipulated in the takÉful nomination form. It is
significant to clarify the status of the nominee, either as a beneficiary
or an executor, in order to avoid any misconception among the legal
heirs in the future. Besides this, the study also seeks to assess how
far the related concept of hibah to the nomination in family takÉful
is currently implemented by the takÉful operators in Malaysia.
Hibah seems to be an alternative for Muslim participants to allocate
the takÉful benefits to the right beneficiaries without adhering
to the Islamic law of inheritance (farÉ’iÌ). This study adopts the
document analysis to identify whether the takÉful nomination form is
standardised and clarified in respect of the status of the nominee for
each takÉful operator in Malaysia. Samples of eight licensed takÉful
* Nurdianawati Irwani Abdullah PhD. is an Associate Professor in laws at the

Department of Business Administration, Kulliyyah of Economics and Management
Sciences. She can be contacted [email protected] or [email protected].
** Nazliatul Aniza Abdul Aziz is a lecturer at the School of Business Studies at Tuanku
Abdul Rahman College in Kuala Lumpur. She can be contacted at blueniz56@
yahoo.com.
ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 67

Case Studies of the Practice of Nomination and Hibah by Malaysian TakÉful Operators
operators are selected in this study. The results of this study found
that the takÉful nomination form is not standardised among all the
takÉful operators. The status of the nominee is not clarified in some
takÉful nomination forms either as a beneficiary or an executor. In
addition, the application of hibah seems to violate the nature of hibah
itself as hibah should take place during the lifetime of the participant.
This study concludes and proposes some recommendations for
takÉful operators to provide better and enhanced implementation of
nomination and hibah in family takÉful.
Keywords: takÉful, hibah, nomination, takÉful operators.
I. BACKGROUND OF STUDY
In legal terminology, takÉful is “a scheme based on brotherhood,

solidarity and mutual assistance which provides for mutual financial
aid and assistance to the participants, in case of need whereby, the
participants mutually agree to contribute for that purpose”.1 Based
on the concept of tabarruÑ, all the takÉful participants agree to
relinquish a sum of contribution channelled to the takÉful fund. A
sum of contribution from all participants aims to provide assistance
to other participants in the event of a calamity.
Specifically, family takÉful is an alternative saving scheme of
life insurance in accordance with Shari’ah with long term financial
objectives. Family takÉful is important in the sense that it gives
protection to the beneficiaries of the participant financially if any
calamity or death happens in the future. The central concern of the
family takÉful plan is the distribution of takÉful benefits in the event
of the participant’s death. Therefore, the participant is required to
name a person as a nominee to receive the takÉful benefits.
Nomination is a process whereby a participant who purchases
the takÉful plan should name the beneficiaries to benefit from the
policy in the event of the policyholder’s death. The takÉful operator
shall distribute the takÉful benefits to the nominee. The distribution
1 Section 2 of Takaful Act 1984.
68 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

Nurdianawati Irwani Abdullah and Nazliatul Aniza Abdul Aziz
of takÉful benefits differs for Muslim participants and non-Muslim

participants. A nominee is merely an executor for a Muslim
participant whereas for non-Muslim participants, a nominee is an
absolute beneficiary. It is a fact that in distribution of takÉful benefits
for a Muslim participant, the Islamic law of inheritance (farÉ’iÌ)
applies. Nevertheless, currently in practice, some takÉful operators
in Malaysia provide an option of giving hibah in nominations to
the participants in a family takÉful plan. In such a case the nominee
will be the sole beneficiary through hibah. Hence, the status of the
nominee in such a nomination is uncertain; i.e., is the nominee a sole
beneficiary or merely an executor who is subject to the Islamic law
of inheritance (farÉ’iÌ).
II. STATEMENT OF PROBLEM
A nominee is obligated to undertake his or her responsibility as an

executor to distribute the takÉful benefits according to the Islamic
law of inheritance (farÉ’iÌ). Upon the death of the participant, the
takÉful operator will distribute the takÉful benefits to the nominee
and the takÉful operator is free from any liability. However, after the
distribution is completely handed over to the nominee, the problem
still arises regarding the status of the nominee. This is likely to happen
due to the absence of rules regarding nominated property in Malaysia.
The Takaful Act 1984 does not expressly provide any rules
regarding the recipient of the takÉful benefits. According to the
Takaful Act 1984, the takÉful benefits need to be paid to the “proper
claimant”. Proper claimant means “a person who claims to be entitled
to the sum in question as executor of the deceased or who claims to be
entitled to that sum under the relevant law”.
The SharÊÑah Advisory Council of the Central Bank of Malaysia
on 21st April 2003 stipulated that the takÉful nomination form should
be standardised and must clearly identify the status of the nominee
either as a beneficiary or mere executor. Therefore, the status of
a nominee needs to be clarified in the contract to avoid unfair
distribution to other beneficiaries who can claim the right for the
takÉful benefits.

According to the resolution issued by the SharÊÑah Advisory Council

of Bank Negara on 21st April 2003, participants can give the takÉful
benefits as hibah since it is a right of the participant itself. Having
said that, there is no formal fatwÉ regarding the provision of hibah
in family takÉful. This study looks into the issues of nomination
and the relevance of hibah to the nomination in the takÉful industry
in Malaysia. Clearly, there are inherent issues in determining the
standard practice of nomination and hibah in family takÉful. It is
important to identify these issues distinctly so as to ensure the five
norms of the maqÉÎid al-Shari’ah, which are religion, life, family,
intellect and property, are well preserved and protected.
III. SIGNIFICANCE OF STUDY
The demand for family takÉful is currently expanding as most

people consider it a financial protection for their dependants if
any misfortune or unexpected risk happens in the future. Any
misconception regarding the nomination may lead to confusion
and conflict among the dependants in receiving the benefits of the
policy monies. In addition, it would be of practical significance to
examine the application of hibah in the takÉful industry as part of the
mechanism of estate management. Since the takÉful industry is quite
new and currently expanding compared to the conventional insurance
industry, there are many issues not yet resolved and the industry still
needs supervision by the regulators.
By using the document review method, this study looks into the
status of nomination applied in reality in Malaysia and the relevance
of hibah in the takÉful industry. Both documents, which are the takÉful
nomination form and the hibah form, provide broad coverage and
sufficient details of the practice of nomination and hibah in family
takÉful. From a review of the takÉful nomination form, this study
will provide crucial insights into the literature by revealing whether
the nomination practice among the takÉful operators in Malaysia is
standardised and follows the Islamic law of inheritance (farÉ’iÌ). On
the other hand, the hibah form is reviewed in the form of the content of
the contract to see how far the concept of hibah is being implemented

in the takÉful industry. This research is expected to provide a better

understanding of the nomination and hibah process in family takÉful
and at the same time, provide recommendations for standardising the
nomination practice in the takÉful industry.
IV. NOMINATION IN FAMILY TAKÓFUL
A family takÉful is a long-term policy which provides protection in

the form of takÉful benefits to the dependants of the participant in the
event of calamity or death. Normally, a family takÉful has a long term
horizon which ranges from 10 to 30 years. According to Nik Ramlah
(1992), the operation of family takÉful is similar to an endowment
policy whereby the amount of takÉful benefits will be received by a
participant based on the amount of contributions that he has agreed
to at the initiation of contract and profits earned from investment of
his contributions.
Therefore, the contributions paid by a participant purposely serve
as a donation to the takÉful fund which provides mutual indemnity
among the participants and acts as a savings and investment instrument
for financial assistance of a participant’s dependants (Engku Ali &
Odierno, 2008).
A. Administration of Family TakÉful Fund

upon Participant’s Death
Under the takÉful plan, the contributions paid by the participants

in family takÉful are channelled to the Family TakÉful Fund, which
goes into different accounts, mainly known as Participant’s Special
Account (PSA) and Participant’s Account (PA).2
According to Engku Ali and Odierno (2008), the takÉful benefits
which are to be paid by the takÉful operator to the nominee of the
participant consist of the balance from the PA prior to the death of the
2 Participant’s Special Account (PSA) is an account where a portion of contributions

is paid by participants for the purpose of investment and saving and Participant’s
Account (PA) is an account where a portion of contributions is paid by participants
for the purpose of tabarruÑ (Central Bank of Malaysia 2006).

participant and the unpaid amount of takÉful contribution from the

date of the participant’s death until the date of maturity of the takÉful
certificate from the PSA.
Nonetheless, scholars and takÉful practitioners are of the opinion
that money from the PA is considered as inheritance whereby the
nominee is responsible to distribute it according to the Islamic law of
inheritance (farÉ’iÌ) since this money is the right of the participant
during his life. On the other hand, money from the PSA (tabarruÑ
account) which is considered as takÉful benefits, is not part of the
inheritance since it is not the right of the participant during his life.3 If
the money from the participant’s special account is not considered as
inheritance, then the option of hibah may be relevant in distribution
of this entire money. Based on earlier opinion4, the status of both
accounts in the family takÉful fund is ambiguous, thus this would
lead to a dilemma in the status of the nominee in family takÉful. The
status of both accounts in the family takÉful fund should be clear in
order to clarify whether the distribution of takÉful benefits can be
subject to the other tools of estate planning such as hibah, waÎiyyah
or farÉ’iÌ.
B. Nominations in General
Nomination is a process whereby a policyholder who purchases

the insurance policy should name someone to benefit from the
policy in the event of the policyholder’s death. The practice of
nomination in family takÉful aims to distribute the takÉful benefits
to the beneficiaries promptly without going through the lengthy
administrative delays of estate administration as it is not subject to the
Probate and Administration Act 1959 and the Wills Act 1959 (Ismail,
2009). There are two types of nominations. Firstly, in the case of
nomination in a life insurance policy, a nomination has the effect of
creating a trust in favour of the nominee. The provision of Section
23(1) of the Civil Law Act 1956 applies in the case of nomination in
a life insurance policy. Secondly, there are statutory nominations in
3 See Konvensyen Perwarisan Harta Islam (2007).

4 Mohd Tarmizi Ahmad Nordin, Former CEO Etiqa Takaful Berhad in Konvensyen
Pewarisan Harta Islam (2007).

the case of nomination made under the Employee Provident Fund Act
1991 and Co-operative Societies Act 1993.
C. Nomination Affecting Family TakÉful Participants
The status of the nominee is still being debated and has become an
issue in family takÉful (Ismail, 2009). Due to the absence of any
rules as to the status of nomination in the Takaful Act 1984, it leads
to conflict among the competing claimants. According to Hussain
(2009), a nomination clause in a typical conventional life insurance
policy may enable a Muslim to violate the rules of mÊrÉth and
waÎiyyah, as the person nominated may be an heir and/or may end
up getting more than one-third of the participant’s estate. The reason
is that a nomination, although made by the participant during his
lifetime, only becomes effective on his death.
In the case of Re Ismail b Rentah (1940), the deceased nominated
his daughter to receive his shares in the event of his death.5 The
decision made by the judge showed that the nomination did not confer
the right on the nominee to take the money beneficially as it is part of
the estate in Islamic law. In this case, the daughter merely acted as a
trustee for all the beneficiaries. Here, the distribution of money was
subject to the Islamic law of inheritance (farÉ’iÌ) (Marican, 2004).
According to Marican (1997) nomination is governed by Islamic
legal doctrines, which are as follows:
i) A person can make an inter vivos gift6 of a definite ascertainable

thing;
ii) A mortis causa gift7 is treated as a disposition of will;
iii) A Muslim may not make a will of more than one-third of his
property;
iv) Excess in the limit of a bequest is not permitted unless with the
consent of heirs.
5 [1940] MLJ 98.

6 An inter-vivos gift is thus a gift made while someone is alive.
7 The giving of the gift which is made in expectation of approaching death.

In the case of Re Man bin Mihat (1965) and Re Bahadun bin Haji
Hassan (1974), the decision made by the judges failed to distinguish
between a gift inter vivos and a bequest. The decision of the judges
seems to contradict the principle applied in Re Ismail b Rentah (1940)
because, according to the latter case, the disposal of property affected
by nomination should be subject to the Islamic law of inheritance
(farÉ’iÌ).
Due to these legal complications in the practice of nomination
and to avoid misconception among Muslims, a fatwÉ was issued by
the National Council of Muslim Religious Affairs in Malaysia in
1979; it stated that:
“Nominees of the funds in Employees Provident,

Post Office Savings Bank, Bank, Insurance, and
Cooperative Society are in the position of persons
who carry out the will of the deceased or the testator.
They can receive the money of the deceased from
the sources stated to be divided among the persons
who are entitled according to the Muslim Law of
Inheritance.”
Based on the above fatwÉ, a nominee in a family takÉful is a mere a

trustee and the distribution of the benefits over the policy will be in
accordance with the principle of mÊrÉth8 and waÎiyyah. A nominee
has an absolute right to receive the takÉful benefits but not become an
absolute owner of the takÉful benefits. A study done by Mohd Ma’sum
Billah supported the fact that a nominee who is a person named by the
participant is a mere trustee and not an absolute beneficiary (Billah,
2000). He further mentioned that a nominee acts as a trustee in a
family takÉful whereby a trustee will receive the benefits of the policy
on behalf of the insured’s heirs and this will be distributed according
to the principle of mÊrÉth and waÎiyyah.
A nominee is governed by the principle of nominees which is
from the doctrine of amÉnah. This is consistent with the definition
provided by Al-MirghÊnÉnÊ (1985) which mentioned that a nominee
8 The succession which is concerned with the distribution of the estate left by the
deceased person.

is a person who is being given a trust to bear the responsibility of the

policyholder’s property. The word “trust” here refers to the doctrine
of amÉnah which is the principle of nominees.
D. Nomination: Takaful Act 1984 vs. Insurance Act 1996
The Takaful Act 1984 does not emphasise the status of a recipient of
takÉful benefits compared to the Insurance Act 1996. Therefore, the
arguments that follow will focus on both statutes regarding to whom
the distribution of takÉful benefits should be allocated. Section 65(4)
of the Takaful Act 1984 reads as follows;
In this section, ‘proper claimant’ means a person

who claims to be entitled to the sum in question
as executor of the deceased, or who claims to be
entitled to that sum under the relevant law.
A “proper claimant” mentioned here in the provision is very general

and includes all possible legal heirs. It is presumed that for the Muslim
policyholder in family takÉful, it should be distributed according to
the principle of Islamic inheritance (farÉ’iÌ) whereas in the case
of a non-Muslim participant who holds a family takÉful plan, the
takÉful benefits shall be distributed according to the Distribution Act
1959 (Ismail, 2009). For a non-Muslim policyholder, a nominee is
considered as an absolute beneficiary because the takÉful benefits are
not part of the estate. It was clearly provided by the provision under
Section 167(1) and Section 167(2) of the Insurance Act 1996 that the
nominee acts as an executor and not as an absolute beneficiary. Thus,
the takÉful benefits will be distributed among the beneficiaries of the
participant without violating the principles of Islamic inheritance
(farÉ’iÌ).
E. Inconsistency in Fatwas on the Effect

of Nominations by Muslims
Currently, only Section 167 of the Insurance Act provides that

a nominee of a Muslim policy owner shall distribute the policy

monies according to Islamic law. However, the Federal Government

proclaimed that a new rule is being set up to ensure that all Muslim
funds in the Employees Provident Fund, Post Office Savings Bank,
Banks, Insurance and Cooperative Societies are subject to the Islamic
law of inheritance (farÉ’iÌ).
There is a disagreement between the SharÊÑah Advisory Council
of Central Bank Malaysia and the National Council of Muslim
Religious Affairs regarding the status of the takÉful benefits. The
SharÊÑah Advisory Council of the Central Bank Malaysia issued a
resolution that the takÉful benefits can be given away as hibah to
the nominee provided that the participant is willing to make a gift to
the nominee (Shariah Advisory Council, 2003). It is presumed here
that when the takÉful benefits become the hibah property, the takÉful
benefits no longer adhere to the Islamic law of inheritance (farÉ’iÌ).
However, the National Council of Muslim Religious Affairs issued a
fatwÉ that the takÉful benefits are part of the estate of the deceased
and must adhere to the Islamic law of inheritance (farÉ’iÌ).
Marican (2004) has stated that the fatwÉ regarding the property
affected by nominations provided by the National Council of Muslim
Religious Affairs is similar to the fatwÉs issued by the Islamic
authorities of the states of Pahang, Selangor, Negeri Sembilan and
Kedah. They are of the same opinion that property affected by
nominations forms part of the residuary property of the deceased and
must adhere to the Islamic law of inheritance (farÉ’iÌ).
In relation to the issue of inconsistency of fatwÉs on the effect
of nominations by Muslims, immediate action needs to be taken to
ensure that the nominee acts as an executor only and properties under
nomination must adhere to the Islamic law of inheritance (farÉ’iÌ).
V. HIBAH IN FAMILY TAKÓFUL
Hibah can be defined as “a voluntary contract that results in

uncompensated ownership transfer between living individuals”
(Al-KhaÏÊb al-SharbÊnÊ, p. 396, in Zuhaily, 2003, p.539). In other
words, it can be referred to as giving ownership of one’s property to

another without any rewards.9 The permissibility of giving hibah can

be found in the Quranic verses and ÍadÊths. Allah said in the Qur’Én:
“But if they, of their own good pleasure, remit

any part of it to you, take it and enjoy it with good
cheer” (SËrah al-NisÉ’, 4:4).
Zuhaily (2003) quoted a ÍadÊth narrated by AbË Hurayrah in which

Prophet Muhammad (peace be upon him) said, “Exchange gifts so
that you may love one another”(Zuhayli, 2006, p.3989). The above
Quranic verse and ÍadÊth clearly show that Allah enjoins Muslim to
give charitable gifts.
Islamic law stipulates that each contract should fulfil certain
conditions in order to be valid and this includes the hibah contract.
The contract of hibah becomes valid if four constituents or pillars
(arkaan) have been fulfilled. The four constituents in the hibah
contract are the donor, donee, subject matter and ÎÊghah (offer and
acceptance). The donor here is the owner of the subject matter of
the gift. The donee can be anybody who is capable of managing the
property. The subject matter refers to any property which is owned by
the donor, it needs to be in existence at the time the hibah is made and
must be a valuable object. The ÎÊghah here indicates the offer made
by the donor and the acceptance made by the donee.
There are three types of hibah: unrestricted hibah, temporal hibah
(ÑumrÉ) and provisional hibah (ruqbÉ).
• Firstly, unrestricted hibah refers to the transfer of property

without any specific conditions and consideration in return.
• Secondly, temporal hibah (ÑumrÉ) is given for the duration of the
donor’s or donee’s lifetime.
• Thirdly, provisional hibah (ruqbÉ) is a gift contingent upon
the donor’s or donee’s life whereby, if the donor dies before the
donee, the ownership of the gift will be transferred to the donee
upon fulfilment of certain conditions.
9 This definition is consistent with the Mejelle (p.131).

Looking into the concept of hibah as a mechanism of estate

management can be an alternative to the policyholder in family
takÉful to give the right of ownership to whomever he trusts. Buang
(2008) explained that hibah is seen as the best solution due to the
nature of a bequest in Islam, which only permits a maximum of one-
third of the property to be distributed in the event of death.
A. Hibah as a Mechanism
of Estate Management in Family TakÉful
Currently, the concept of hibah is widely practised in the family

takÉful products offered by some of the takÉful operators. For
instance, Takaful Ikhlas is the first takÉful operator which provided
in its family takÉful plan a form for hibah. The policyholder can
give away the takÉful benefits as a form of hibah in the event of the
death of the policyholder. According to Mohd Noor and Abdullah
(2008), when the takÉful benefits are given away as hibah, the takÉful
benefits are not part of the estate and the Islamic law of inheritance
(farÉ’iÌ) shall not be applicable to that effect. Furthermore, the other
legal heirs cannot claim the takÉful benefits once the hibah is put
into effect. The fraction of the takÉful benefits which is given away
as hibah depends on the participant’s consideration because Islamic
law does not provide the specific proportion of property to be given
as hibah.
Ismail (2009) agreed that the Islamic law of inheritance (farÉ’iÌ)
shall not be applied once the hibah is put into effect, on the ground
that the takÉful benefits are the right of the participant and the takÉful
operator gives the freedom to the participant to make hibah. The
participant may want to give a certain portion as a hibah to those he
thinks are qualified. In practice, the application of hibah in takÉful
products leads to an issue whereby there is no ruling provided to
that effect. Hence, arguments between the legal heirs and the donee
arise due to the lack of knowledge on the concept of hibah and its
implications.

B. Issues of Hibah to the Nomination in Family TakÉful
There are differences of opinion regarding the application of hibah

in nomination being adopted in the family takÉful. Some of the
opinions hold that hibah in family takÉful should not take effect after
the participant dies. This is because the takÉful benefits have not yet
existed at the time the hibah contract is made. They argue based on
the fact that hibah should take effect during the lifetime of a person.
The concept of hibah is now being customised to fit the needs
of current development in Islamic banking and takÉful. Nevertheless,
there are inherent issues regarding the practice of hibah in family
takÉful. The main issues are:
1. Contradiction with Islamic Law

on the Nature of Gifts (Hibah)
Generally, takÉful benefits are owned by the policyholder if the

policyholder is still alive at the maturity of the policy. However, if the
policyholder dies before the maturity of the policy, then hibah will
take effect at this point. With regard to the practice of hibah in family
takÉful, it indicates here that hibah takes place after the death of the
policyholder. Thus, it goes against the nature of hibah itself which is
to take effect during the lifetime of the policyholder.
In addition to the above, Kahf (2006) stresses that the owner of a
policy cannot defer any distribution of takÉful benefit till after death.
Due to this, he believes that any distribution which takes effect after
death is subject to certain conditions which are:
 The distribution of the estate must not surpass one-third of the

estate net of expenses and debts. It is reported by SaÑd ibn AbÊ
WaqqÉÎ in the ÍadÊth:
The Prophet came to visit me in my sickness. I was then at Makkah

and did not like to die at a place from which I had migrated. The
Prophet of Allah said: “May Allah have mercy on Ibn Nafra´.” I

said, “O Prophet! I am wealthy and my only heir is my daughter.

Permit me to make a will of my entire property.” He said, “No.” I
said, “Can I make a will of two-thirds of my property?” He said,
“No.” I said, “Permit me for a third.” The Prophet replied, “You
may make a will of a third, although this is also too much. For
you to leave your heirs well to do is better than leaving them poor
and in want whilst others meet their needs.” 10
 The estate must not be distributed to any of the heirs whose

entitlements to farÉ’iÌ are clearly provided in the Qur’Én.11 This
rule is mentioned in the ÍadÊth reported by AbË UmÉmah in
which Prophet Muhammad said:
“Allah has already given to each entitled relative his proper

entitlement. Therefore, [there can be] no bequest in favour of a
legal heir.”12
Based on the above, it is assumed that the distribution of the estate after
the death is considered as waÎiyyah and not as hibah. However, the
practice nowadays seems to contradict the nature of hibah itself since
hibah should only take effect during the lifetime of the policyholder.
2. Evasion of the Islamic Law of Inheritance (FarÉ’iÌ)
The takÉful benefit which is owned by the deceased during his

lifetime must be distributed in accordance to the Islamic law of
inheritance (farÉ’iÌ) (Kahf, 2006). In other words, hibah cannot be
implemented after death. Halim (2009) mentioned that any form
of gift (hibah) after the death is considered as a tactic to avoid the
Islamic law of inheritance (farÉ’iÌ). She observed that the use of a
living trust (hibah) among Muslims should be given attention to in
order to harmonise with Islamic law.
10 Sahih Al-Bukhari, p.3.

11 There is already a specific set of laws regarding inheritance (mÊrÉth) and
bequest (waÎiyyah) in Islamic law; particularly relating to the categories
of heirs and their entitlement to the estate of a deceased person.
12 Sahih Al-Bukhari, p. 6.

3. Ownership of TakÉful Benefit
At the time the hibah is made, the takÉful benefit is not yet owned
by the deceased during his lifetime. AbË ×anÊfah and al-ShÉfiÑÊ
mentioned that taking possession (qabÌ) is a condition for the validity
of hibah (Nasir, 2002). Without delivery of possession, the property
will then pass to the donor’s heirs, even if the offer was accepted by
the donee (Pearl, 1979).
Likewise, Kahf (2006) mentioned that, based on the opinions of
the jurists, any property which was not owned by the deceased during
his lifetime (in the case of hibah in takÉful), must be according to the
Islamic law of inheritance (farÉ’iÌ). Referring to the above literature,
the takÉful benefit is not owned by the policyholder during his
lifetime. Hibah in family takÉful is deemed to be completed when the
policyholder or the donor dies. The ownership of the takÉful benefit
is transferred to the donee or recipient of hibah after the death of the
policyholder.
4. Absence of Ruling on Hibah in the Takaful Act 1984
Currently, there is no ruling mentioned in the Takaful Act 1984

regarding the application of ibah in takÉful (Muhamad, 2008). This
leads to many problems regarding hibah.
C. Issues of WaÎiyyah
WaÎiyyah is one of the tools that can be used for disbursing the
property of the deceased. Typically, a waÎiyyah is referred to as a
gratuitous gift of property by its owner to another, contingent on the
giver’s death, and the gift takes effect on the giver’s death (Yahya,
2004). In implementing waÎiyyah, there are two rules which need
to be taken into consideration by the testator. According to Marican
(2008), the waÎiyyah should not be made in favour of any of his legal
heirs and the transfer of property should not exceed one-third. He
further mentioned that most of the jurists have opined that the one-
third rule in waÎiyyah aims to help those people who are not listed as
Quranic heirs. For instance, parents can use a form of waÎiyyah to be
given to their adopted child.

According to Omar and Abdullah (2009), nomination is similar to the

concept of waÎiyyah because nomination takes effect upon the death
of the nominator. In contrast, Muhamad (1997) explains that the
nominated property is not considered as waÎiyyah property or hibah
property. He states that the recipient of hibah of the nominated property
does not have any rights if the donor is still alive. The transfer of the
property to the hibah recipient only takes effect upon the nominator’s
death. The transfer of property after the nominator dies is considered
as waÎiyyah according to Islamic law. However, the waÎiyyah on the
nominated property is irrational because the nominees are appointed
among the legal heirs. Basically, this is against the nature of the
waÎiyyah itself. On the other hand, hibah should be given to the
recipient during the lifetime of the donor. However, in the case of
hibah in family takÉful, hibah is transferred to the recipient upon the
death of the participant. There is a contradiction in the nature of hibah
itself in family takÉful.
VI. RESEARCH METHODOLOGY
This study adopts a qualitative research methodology to examine the

issues of nomination in family takÉful from both a theoretical and
practical aspect. Two approaches are adopted in this study: library
research and field research. The exploratory study on the issues of
nomination in family takÉful was done by assessing the relevant
literature within a variety of sources of knowledge. For library
research, a review and analysis of the literature, which included
academic journals, conference papers and statutes, was done.
The second stage involved field research, which was carried out
to examine the issues of nomination in family takÉful. Primary data
was collected through document analysis. All documents related to
nomination issues were collected from eight licensed takÉful operators
in Malaysia. The eight licensed takÉful operators are as follows:

Table 1: Licensed TakÉful Operators in Malaysia

No. TakÉful Operators Date Incorporated
1 CIMB Aviva Takaful Berhad 2006
2 Etiqa Takaful Berhad September 1991
3 Hong Leong Tokio Marine Takaful Berhad 19th June 2006
4 HSBC Amanah Takaful (Malaysia) Berhad 11th August 2006
5 MAA Takaful Berhad 2nd May 2006
6 Prudential BSN Takaful Berhad 2006
7 Syarikat Takaful Malaysia Berhad 22nd July 1986
8 Takaful Ikhlas Sdn. Bhd. 2002
All the documents served as primary data in order to identify the

status of standardisation of the nomination practice in family takÉful
and the application of hibah to nomination in the takÉful industry in
Malaysia.
This study reviews both the nomination form and the hibah form
which are provided by all takÉful operators in Malaysia.
VII. MAJOR FINDINGS
All the takÉful operators provided takÉful nomination forms under

the family takÉful scheme. However, not all the takÉful operators
provided their participants with an option of hibah in distributing the
takÉful benefits.
The data from both sources of documents were collected
to analyse whether the takÉful nomination form provided by all
operators was standardised in terms of the contents of the contract
between the participant and their nominees. This is to ensure that
the nominee clearly understands his responsibility to carry out the
distribution of takÉful benefits in the event of the participant’s death.
In addition, the hibah form was also analysed to identify the extent
to which the concept of hibah was properly applied in family takÉful.

According to the takÉful operators which provided the hibah form,

the application of hibah is an alternative for a Muslim participant
in family takÉful without having to be subject to the Islamic law
of inheritance (farÉ’iÌ). Below is the list of the takÉful nomination
forms and hibah forms which were reviewed in this study:
Table 2: Review of TakÉful Nomination Form and Hibah Form
Documents reviewed and analysed

Name of TakÉful Operators
Nomination Hibah
Syarikat Takaful Malaysia Berhad √ √

Takaful Ikhlas Sdn. Bhd. √ √
Hong Leong Tokio Marine Takaful √ Not provided
CIMB Aviva Takaful √ Not provided
Etiqa Takaful Berhad √ Not provided
Prudential BSN Takaful Berhad. √ Not provided
MAA Takaful Berhad √ √
HSBC Amanah Takaful (Malaysia) Berhad √ √
The following discussions explain in detail the practice of nomination

and the application of hibah in family takÉful by all the takÉful
operators. The findings are further summarised in table form in Table
4 below.
A. Syarikat Takaful Malaysia Berhad
Syarikat Takaful Malaysia Berhad is the first takÉful operator in

Malaysia. It began operations on 22nd July 1986 with a capital of
RM500 million. The various types of family takÉful schemes provided
by Syarikat Takaful Malaysia Berhad are Takaful mySiswa, Takaful
mySinar, Takaful myImpian, Takaful myMedicare, Takaful myRawat,
Mortagage Takaful Plan, Takaful myInvest, Takaful myGraduan and
Investment Funds.
Syarikat Takaful Malaysia Berhad provides its participants of
the family takÉful scheme with a nomination clause in its proposal
participation form in family takÉful. In this proposal form, the
participant can nominate those who he thinks qualified to receive

the takÉful benefits upon his death. Syarikat Takaful Malaysia

Berhad does not provide any notes in the proposal form regarding
the responsibility of the nominee either as a trustee or beneficiary.
Basically, the takÉful agent will explain to the participant the
nomination and the distribution of the takÉful benefits for Muslim
and non-Muslim participants.
In the proposal form of family takÉful provided by Syarikat
Takaful Malaysia Berhad, the Muslim and non-Muslim participant
names the nominee, together with the percentage of distribution.
However, if the participant is willing to make any changes to the
nomination, he can do so by nominating a person as an assignee,
a beneficiary or a proposed hibah recipient as specified in the
proposal, called Proposal for Endorsement and Additional Cover –
non-Financial Changes. Syarikat Takaful Malaysia Berhad provides
hibah of takÉful benefits through nomination in this proposal form.
The participant may distribute the takÉful benefits as a hibah to those
he thinks is qualified.
B. Takaful Ikhlas Sdn. Bhd.
Takaful Ikhlas Sdn. Bhd. was established in 2002. Among the basic
products of family takÉful offered by Takaful Ikhlas Sdn. Bhd. are
Ikhlas Saving Takaful, Ikhlas Education Takaful, Ikhlas Education
Takaful Classic, Ikhlas Lifesyle Takaful, Ikhlas Capital Investment
Linked Takaful, Ikhlas Premier Investment Linked Takaful and Ikhlas
Wanita Takaful. Takaful Ikhlas Sdn. Bhd. provides the nominee form
for the participant in family takÉful as well as a proposal form of hibah.
In the nominee form, it is clearly stated the conditions of distribution
of takÉful benefits which are applicable to the Muslim participants
and non-Muslim participants subject to respective personal laws.13
For the Muslim participant, the first nominee shall be responsible
to distribute the takÉful benefits to the right beneficiaries in accordance
with the Islamic law of inheritance (farÉ’iÌ) whereby Section 65 of the
Takaful Act 1984 shall apply and any order from the SharÊÑah courts.
In the event the first nominee dies, then the second nominee shall
13 Muslim participants are subject to the Islamic law of inheritance (farÉ’iÌ); whereby
non-Muslim participants shall adhere to the Distribution Act 1958.

shoulder the same responsibility in distributing the takÉful benefits

according to the Islamic law of inheritance (farÉ’iÌ). However,
for a non-Muslim participant, it will be different because if any of
the nominees die before the participant, then it shall be distributed
according to the percentage of shares stated in the nominee form. In
the case where the nominee acts as an administrator, the percentage
of shares shall not be applied.
Due to this, Takaful Ikhlas Sdn. Bhd. provides the Muslim
participant with an option of hibah if he or she chooses. In essence,
Takaful Ikhlas Sdn. Bhd is the first takÉful operator to provide an
option of hibah under the family takÉful scheme. In order to protect
the charitable trust of the dependants, Takaful Ikhlas Sdn. Bhd.
stipulates certain individuals eligible to receive the takÉful benefits
as hibah. These individuals are parents, husband or wife, children and
siblings. It is the policy of Takaful Ikhlas Sdn. Bhd. to provide a clear
status of the nominee as executor in the case of a Muslim participant.
The application of hibah to the nomination in family takÉful has an
effect whereby the status of the takÉful benefits is not considered as
part of the estate and the farÉ’iÌ distribution shall not apply.
C. Hong Leong Tokio Marine Takaful
Hong Leong Tokio Marine Takaful was incorporated on 19th June 2006.
Hong Leong Tokio Marine Takaful is a joint venture company with
Hong Leong Bank Berhad, Tokio Marine & Nichido Fire Insurance
Co., Ltd and Hong Leong Assurance Berhad. Among the family
takÉful products offered by Hong Leong Tokio Marine are Mortgage
Reducing Term Takaful, Comprehensive Mortgage Takaful, Single
Contribution Investment-Linked Family Takaful, (HLTMT i-Invest),
HLTMT i-Save and HLTMT i-Grad.
A participant who participates in any of HLTMT’s family
takÉful schemes shall be provided with a nominee form.
Hong Leong Tokio Marine Takaful provides a clear status of the
nominee’s responsibilities for a Muslim and Non-Muslim participant
in its nominee form. The first nominee for a Muslim participant
is responsible to distribute the takÉful benefits to the legal heirs
according to the Islamic law of inheritance (farÉ’iÌ). This is subject
to Section 65 of Takaful Act 1984 and any order from the SharÊÑah

courts. In case the first nominee dies first, then the second nominee
shall take upon the same responsibility. For a non-Muslim participant,
the distribution of the takÉful benefits shall be distributed equally
according to the percentage stated in the nominee form if any of the
nominees die before the participant.
However, Hong Leong Tokio Marine Takaful does not provide
an option of hibah for a Muslim participant. Instead of hibah, Hong
Leong Tokio Marine Takaful has an initiative to provide for Muslim
participants an option of ×ajj by proxy for those who participate in
any of HLTMT family takÉful’s schemes. ×ajj by proxy offered by
Hong Leong Tokio Marine is managed by TH Travel & Services Sdn.
Bhd., a wholly owned subsidiary of Lembaga Tabung Haji. In the
×ajj by proxy form, it is indicated that an amount of two thousand
five hundred Malaysian ringgits (RM2500.00) from the total takÉful
benefits payable by the participant shall be discharged for the purpose
of ×ajj by proxy. Therefore, the remainder of the takÉful benefits
after deduction from the service of ×ajj by proxy shall be subject to
the Islamic law of inheritance (farÉ’iÌ).
D. CIMB Aviva Takaful
CIMB Aviva Takaful Berhad, owned by the CIMB Group, is the fifth
entrant in the takÉful industry in Malaysia. Several of the family
takÉful products offered by CIMB Aviva Takaful Berhad are Easylife
Takaful Series, Mortgage Reducing Term Takaful (MRTT), Xpress
Cash Awam-i Protector Plan, MyKid Takaful Edu Plan and Takaful
Child Protector.
CIMB Aviva Takaful Berhad provides a nomination form for
the participant in family takÉful. The form, called Nomination under
Takaful Act 1984, needs to be completed by the participant who must
understand the conditions of nomination provided in the form. There
are certain conditions the participants need to fulfil before nominating
a person to become a nominee.
It is stated in the nomination form provided by CIMB Aviva
Takaful Berhad that the nomination can only be effected upon the
participant’s life whereby the participant provides the payment of
contract monies in the event of his death. The participant should have
attained the age of 18 years to nominate a natural person to receive

the benefits upon the participant’s death. A nominee shall receive the
entire amount of the takÉful benefits if only one nominee is nominated
by the participant. In the case of two or more nominees named, the
participant may state the percentage of the takÉful benefits to be
distributed among the nominees. However, all nominees shall receive
in equal shares if there is no percentage agreed upon.
Besides that, the participant may appoint himself as a sole or joint
trustee of the policy monies. The takÉful benefits do not form part of
the participant’s estate, they are also not subject to the participant’s
debt. If there is no trustee named by the participant, the nominee
shall act as a trustee. If the nominee is not competent, Amanah Raya
Berhad shall be the trustee of the takÉful benefits. In the case the
nominee dies before the participant and the participant does not make
any subsequent nomination, the other nominees shall receive the
benefits according to the proportion agreed.
In summary, it can be identified here in the nomination form
provided by CIMB Aviva Takaful Berhad that the trustee and nominee
shall carry different responsibilities where the trustee shall exercise a
duty to keep the money in safe custody until the beneficiary reaches the
age of 18 years and the nominee is an absolute beneficiary. However,
this only applies to a non-Muslim participant who participates in the
family takÉful product scheme.14
The nomination form somehow does not mention which law is
applicable to the distribution of takÉful benefits to the Muslim and
non-Muslim participant. The manner and governing law for the
distribution of takÉful benefits and the responsibility of the nominee
should be made clear; whereby a Muslim participant shall be subject to
the Islamic law of inheritance (farÉ’iÌ) and a non-Muslim participant
shall follow the Distribution Act 1958. In addition, CIMB Aviva
Takaful Berhad does not provide an option of hibah as a mechanism
of estate management in takÉful.
E. Etiqa Takaful Berhad
Etiqa Takaful Berhad was formerly known as Takaful Nasional Sdn.

Bhd. Etiqa Takaful Berhad offers various family takÉful products,
14 The trust is only applicable to a non-Muslim participant.

such as Takaful Sakinah, Takaful Mesra, Takaful Warisan, Takaful

Ehsan, Takaful Medic Save Rider and many more.
Etiqa Takaful Berhad provides a nomination section in its family
takÉful proposal form. Important notes regarding nomination are
provided to the Muslim participant and non-Muslim participant
in the proposal form. It is stated in the proposal form for Muslim
participants that the first nominee shall receive the takÉful benefits
wholly as cited under Section 65 of the Takaful Act 1984. The first
nominee is responsible to distribute the takÉful benefits to the legal
heirs in accordance with the Islamic law of inheritance (farÉ’iÌ). In
the event the first nominee dies, the takÉful benefits shall be received
wholly by the second nominee.
For non-Muslim participants, the nominees shall receive the
takÉful benefits according to the percentage of shares provided in the
proposal form, which is subject to the Distribution Act 1958. If the
first nominee dies before the participant, the takÉful benefits shall be
distributed equally to the other nominees and shall also be subject to
the Distribution Act 1958. Etiqa Takaful Berhad only provides the
nomination in its family takÉful proposal form. There is no proposition
of hibah provided by Etiqa Takaful Berhad to Muslim participants.
F. Prudential BSN Takaful Berhad
Prudential BSN Takaful Berhad (PruBSN) was incorporated in

early 2006 whereby this takÉful operator was formed through the
partnership of Prudential Holdings (Prudential) and Bank Simpanan
Nasional (BSN). Among the family takÉful products offered by
Prudential BSN Takaful Berhad (PruBSN) are Takafulink, Takaful
Health, PruBSN Warisan, PruBSN Asas, Takafulink Cerdik, PruBSN
Impian and PruBSN Kasih.
From the nomination form provided by Prudential BSN Takaful
Berhad (PruBSN), some important notes are highlighted for a
participant’s understanding regarding a nomination in family takÉful.
It is indicated in the form that for a Muslim participant, a nominee
shall be given the takÉful benefits wholly if only one nominee is
named. Where two or more nominees are named, the participant
needs to indicate the percentage of shares for each of the nominees.
If no percentage of shares is specified for the nominees, then the

nominees will receive in equal shares. It is clearly mentioned in the

nomination form that a nominee who is deemed a proper claimant
shall act as an executor.
Therefore, an executor has the responsibility to distribute the
takÉful benefits in accordance with the Islamic law of inheritance
(farÉ’iÌ) as stated in Section 65 of the Takaful Act 1984 and upon
any order from the SharÊÑah courts. The participant needs to let the
nominees realise their responsibility so that there is no misconception
in the future. The takÉful benefits shall be distributed according to
the percentage of shares of each nominee if any of the nominees dies
before the participant.
As for non-Muslim participants, the nominee shall receive the
entire amount of takÉful benefits if only one nominee is named. If two
or more nominees are named, the distribution of the takÉful benefits
will be according to the percentage of shares stated in the nomination
form. The takÉful benefits will be equally distributed to the nominees
if the participant does not mention any proportion to be given out.
In the event any of the nominees dies before the participant, then
the takÉful benefits shall be distributed according to shares specified
in the nomination form. Further, in the case of a participant who
has any compassionate benefits, this benefit shall be paid to any of
the nominees with an obligation that the money is used for funeral
expenses upon the participant’s death.
G. MAA Takaful Berhad
MAA Takaful Berhad is a joint venture company between MAA

Holdings Berhad (MAAH) and Solidarity Company BSC (C) of
Bahrain, one of the leading companies in the Arab world. MAA
Takaful Berhad offers various family takÉful products such as
Takafulink, Takafulink Single Invest, Takafulink Education,
Cancercare, SmartMedic 100 and Structured Invest.
MAA Takaful Berhad provides a WaÎÊ Nomination Form to their
participants who participate in any of their family takÉful products.
For a Muslim participant, the nominee shall distribute the takÉful
benefits under relevant laws of SharÊÑah. It is indicated in the waÎÊ
nomination form that a nominee shall act as an executor only. For a
non-Muslim participant, the relevant law, which is the Distribution

Act 1958, shall be applied in distributing the takÉful benefits to the

nominee. The nominees shall receive the amount of takÉful benefits
based on the percentage of shares provided in the waÎÊ nomination
form. It is indicated in the waÎÊ nomination form that a nominee shall
act as an executor only.
MAA Takaful Berhad implements the concept of hibah in the
distribution of the takÉful benefits for family takÉful products.
This can be done through the hibah nomination form provided to
a participant if his intention is for the nominee to receive takÉful
benefits as a beneficiary and not merely as an executor. In the hibah
nomination form, two sections are provided. The first section is for a
participant to name the beneficiary to receive the takÉful benefits as a
hibah. In the second section, it is to be completed by the participant, to
name any trustees if a beneficiary is not competent yet to manage the
takÉful benefits. However, if there is no trustee appointed, Amanah
Raya Berhad shall be the public trustee for the takÉful benefits. Hibah
can be revoked if the nominee is a child or grandchild.
H. HSBC Amanah Takaful (Malaysia) Berhad
HSBC Amanah Takaful (Malaysia) Berhad was established on 11th

August 2006. HSBC Amanah Takaful (Malaysia) Berhad is widely
known for diverse family takÉful products, such as HSBC LifeSelect
Regular, HSBC LifeSelect Single, HSBC Lifestyle Protector Plan,
HSBC Lifestyle Protector Plus Plan, HSBC Lifestyle Saver, HSBC
Anytime Extra Protector, Takaful Cards Protector, Takaful
Mortgage Protector and Takaful Mortgage Protector Plus.
Regarding the nomination practice, HSBC Amanah Takaful
(Malaysia) Berhad provides clear indication of nomination for
Muslim and non-Muslim participants. There are two sections
separately provided for the Muslim participant and non-Muslim
participant. A Muslim participant may decide to appoint a person as
an executor or as a proposed hibah recipient. Therein, a participant
may appoint a person named to carry out the responsibility as a waÎÊ
(executor) whereby the distribution of the takÉful benefits is subjected
to the Islamic law of inheritance (farÉ’iÌ) or any order from the
SharÊÑah courts. The participant has a right to revoke the appointment
of any waÎÊ without his or her consent.

HSBC Amanah Takaful (Malaysia) Berhad shall pay the takÉful

benefits to any of the waÎÊ being appointed if there are more than
one waÎÊ named. Upon all the takÉful benefits being paid to the
waÎÊ (executor), HSBC Amanah Takaful (Malaysia) Berhad shall
be discharged from any liabilities. On the other hand, a Muslim
participant may give the takÉful benefits as a hibah to the proposed
hibah recipients on condition that the proposed hibah recipient is
a legal spouse, child, parent and/or sibling. In the event any of the
proposed hibah recipients die before the participant, then his or her
name shall be removed from the list of proposed hibah recipients. The
non-Muslim participant needs to declare a revocable trust in respect
of all the takÉful benefits to be given to the beneficiaries named in
the nomination form. Thus, a non-Muslim participant shall appoint
a person to become a trustee on behalf of the beneficiaries. If there
is more than one trustee, HSBC Amanah Takaful (Malaysia) Berhad
shall pay the takÉful benefits to any of the trustees.
VIII. SUMMARY OF THE FINDINGS
A. Nomination in Family TakÉful
Table 3: Nomination Practices for Muslim and Non-Muslim Participants

Name of TakÉful Nomination
Operator
Muslim Participant Non-Muslim Participant
Syarikat Takaful No clarification on the No clarification on the

Malaysia Berhad distribution of the takaful distribution of the takaful
benefits for Muslim benefits for non-Muslim
participant. participant.
Takaful Ikhlas Sdn. Bhd. The nominee is responsible The takaful benefits shall be
to distribute the takaful distributed to the nominees
benefits to the legal heirs in upon certain percentage
accordance with the Islamic of shares provided in the
law of inheritance (faraid). nomination form.
Subject to Section 65 of the
Takaful Act 1984 and any
order from the Shariah courts.

Hong Leong Tokio The nominee is responsible Nominee shall receive the
Marine Takaful to distribute the takaful takaful benefits upon certain
benefits to the legal heirs in percentage of shares provided
accordance with the Islamic in the nomination form.
law of inheritance (faraid).
Subject to Section 65 of the
CIMB Aviva Takaful No clarification on the No clarification on the
distribution of the takaful distribution of the takaful
benefits for Muslim benefits for non-Muslim
participants. participants.
The notes on trust provided in The notes on trust provided in
general terms. general terms.
Etiqa Takaful Berhad The nominee is responsible The nominees shall receive
to distribute the takaful the takaful benefits according
benefits to the legal heirs in to the percentage of shares
accordance with the Islamic provided in the proposal
law of inheritance (faraid). form which is subject to the
Subject to Section 65 of the Distribution Act 1958.
Prudential BSN Takaful Nominee acts as an executor. Nominee shall receive the
Berhad The distribution of the takaful takaful benefits upon certain
benefits is subject to the percentage of shares provided
Islamic law of inheritance in the nomination form.
(faraid) or any order from the
Shariah courts.
MAA Takaful Berhad Nominee acts as an executor. ful benefits shall be
The distribution of the takaful distributed to the nominees
benefits is subject to the upon certain percentage
Islamic law of inheritance of shares provided in the
(faraid) or any order from the nomination form.
Shariah courts. It shall be subject to the
relevant law which is the
Distribution Act 1958.
HSBC Amanah Takaful Nominee acts as an executor. Appointment of the trustee
(Malaysia) Berhad The distribution of the takaful on behalf of the beneficiaries
benefits is subject to the upon the trust created. The
Islamic law of inheritance trustee shall carry out the
(faraid) or any order from the responsibility to distribute
Shariah courts. the takaful benefits to the
beneficiaries named.

B. Hibah in Family TakÉful
Table 4: Implementation of Hibah in Family TakÉful

Name of TakÉful Operator Hibah
No requirement on the proposed hibah recipients

Syarikat Takaful Malaysia Berhad
provided.
Takaful Ikhlas Sdn. Bhd. The proposed hibah recipients should be the legal
spouse, parent, sibling and/or children only.
Hong Leong Tokio Marine

Hibah letter is not provided.
Takaful
CIMB Aviva Takaful Hibah letter is not provided.
Etiqa Takaful Berhad Hibah letter is not provided.
Prudential BSN Takaful Berhad Hibah letter is not provided.
No requirement on the proposed hibah recipients

MAA Takaful Berhad
provided.
HSBC Amanah Takaful The proposed hibah recipients should be the legal
(Malaysia) Berhad spouse, parent, sibling and/or children only.
From the analysis of the takÉful nomination forms, it is shown that

the status of nominees in family takÉful is not clearly specified in
the contract in terms of responsibility of being an executor or a
beneficiary. Thus, the agent of family takÉful needs to explain to the
participant clearly the responsibility of a nominee for Muslim and
non-Muslim participants. The distribution of the takÉful benefits for
Muslim participants is through the Islamic law of inheritance (farÉ’iÌ)
and for non-Muslims the Distribution Act 1958 applies. Further, it
can be concluded in the analysis that the application of hibah has
not yet been implemented in the nomination practice of some takÉful
operators.

IX. CONCLUSION AND IMPLICATIONS
There are two major findings in this study. Firstly, the content of the
nomination form of all takÉful operators is not standardised. Secondly,
the application of hibah in family takÉful seems to violate the nature
of the Islamic law of gift (hibah).
A. Non-Standardised Nomination Form

for All TakÉful Operators in Malaysia
The findings show that the nomination form is not standardised in

terms of content of the contract as provided by all takÉful operators
in Malaysia. The content of the nomination form of some takÉful
operators fails to clarify the status of a nominee, whether the nominee
is an executor or a beneficiary in family takÉful for a Muslim and
non-Muslim participant. Syarikat Takaful Malaysia Berhad and
CIMB Aviva Takaful do not provide any clarification in the document
regarding the status of the nominee.
The findings also show the inconsistencies in connection with
the theoretical framework which supports the fact that the nominee
merely acts as an executor for a Muslim participant and as an
absolute beneficiary for a non-Muslim participant. Besides this, the
effect of nomination for a Muslim participant is different from a non-
Muslim participant as the distribution of the estate of a deceased
Muslim is governed by Islamic law. The significant effect of the
absence in the clarification of the status of the nominee will lead to
the claim of takÉful benefits by other beneficiaries in the future due
to misunderstanding the nominee’s responsibility.
B. Improper Application of Hibah Letter

to the Nomination
This study found that not all takÉful operators provided the hibah
letter in relation to the nomination in family takÉful. Among the

takÉful operators that provide hibah are Syarikat Takaful Malaysia

Berhad, MAA Takaful Berhad, Takaful Ikhlas Sdn. Bhd. and HSBC
Amanah Takaful (Malaysia) Berhad. In relation to the resolution
issued by the SharÊÑah Advisory Council of Bank Negara, the takÉful
benefit can be given as hibah since it is a right of the participant.
However, the application of hibah to the nomination in the takÉful
industry in Malaysia violates the nature of hibah itself because such
hibah as presently practised is given to the recipients upon the death
of the participant.
X. RECOMMENDATIONS
This study proposes the following suggestions for future development

and improvement in nomination in family takÉful.
1) The amendment of the status of nominee in the Takaful Act 1984

is crucial. It is necessary that the word “trust” must be used in
the meaning of “proper claimant” in order to avoid any conflict
among the legal heirs and as a matter of ensuring justice, together
with the protection of maqÉÎid al-SharÊÑah.
2) The Central Bank of Malaysia should take action to ensure that
the nomination practices in Malaysia are standardised in terms
of the content of the contract as well as the practice of giving
hibah in family takÉful to make it comply with SharÊÑah and to be
consistent with the principle of hibah.
3) There is a need of farÉ’iÌ law to be properly enforced so that
Muslims can protect their own rights in the distribution of the
estate, especially in relation to the nominated property. This is to
ensure that the beneficiaries are able to claim their rights and to
avoid any unclaimed nominated property.
4) Nomination law is necessary to be implemented to regulate the
related matters of nomination in Malaysia.
5) Depending on the nature and the objectives of the family takÉful
plan, this research proposes some suggestions to the takÉful

operators regarding the application of the hibah letter based on

certain conditions which are:
(a) If the takÉful benefits are given during the lifetime of the
participant, then the hibah letter can be applied.
(b) If the takÉful benefits will be given after the participant died,
the waÎiyyah letter is more applicable to this situation.
XI. CONCLUDING REMARKS
This study has addressed the issues in nomination and hibah in

family takÉful. The objectives were to review and examine takÉful
nomination and the hibah form of takÉful operators in Malaysia
within the content of the contract. Besides this, this study also
aimed to identify the status of the nominee and the relevance of
hibah to the nomination. By using a document-based study, this
study provided the findings of nomination practice in the takÉful
industry in relation to the content of the contract specified in the
nomination form and the hibah letter. It is found in this study that the
takÉful nomination form is not standardised by the takÉful operators
in Malaysia and the application of hibah in the takÉful industry is
inappropriate because takÉful benefits are given after the death of
the participant. The application of hibah in the takÉful industry is
still new and needs further improvement to make it consistent with
the needs of society, in culture and in religion.

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Case Studies of the Practice of Nomination and Hibah by

Article · December 2010

nurdianawati Irwani abdullah Nazliatul Aniza Abdul Aziz

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Nomination is a process whereby a policyholder who purchases the

* Nurdianawati Irwani Abdullah PhD. is an Associate Professor in laws at the

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 67

Keywords: takÉful, hibah, nomination, takÉful operators.

In legal terminology, takÉful is “a scheme based on brotherhood,

1 Section 2 of Takaful Act 1984.

68 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

of takÉful benefits differs for Muslim participants and non-Muslim

II. STATEMENT OF PROBLEM

A nominee is obligated to undertake his or her responsibility as an

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 69

According to the resolution issued by the SharÊÑah Advisory Council

III. SIGNIFICANCE OF STUDY

The demand for family takÉful is currently expanding as most

70 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

in the takÉful industry. This research is expected to provide a better

IV. NOMINATION IN FAMILY TAKÓFUL

A family takÉful is a long-term policy which provides protection in

A. Administration of Family TakÉful Fund

Under the takÉful plan, the contributions paid by the participants

2 Participant’s Special Account (PSA) is an account where a portion of contributions

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 71

participant and the unpaid amount of takÉful contribution from the

Nomination is a process whereby a policyholder who purchases

3 See Konvensyen Perwarisan Harta Islam (2007).

72 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

C. Nomination Affecting Family TakÉful Participants

i) A person can make an inter vivos gift6 of a definite ascertainable

5 [1940] MLJ 98.

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 73

“Nominees of the funds in Employees Provident,

Based on the above fatwÉ, a nominee in a family takÉful is a mere a

74 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

is a person who is being given a trust to bear the responsibility of the

D. Nomination: Takaful Act 1984 vs. Insurance Act 1996

In this section, ‘proper claimant’ means a person

A “proper claimant” mentioned here in the provision is very general

E. Inconsistency in Fatwas on the Effect

Currently, only Section 167 of the Insurance Act provides that

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 75

monies according to Islamic law. However, the Federal Government

V. HIBAH IN FAMILY TAKÓFUL

Hibah can be defined as “a voluntary contract that results in

76 ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010

another without any rewards.9 The permissibility of giving hibah can

“But if they, of their own good pleasure, remit

Zuhaily (2003) quoted a ÍadÊth narrated by AbË Hurayrah in which

• Firstly, unrestricted hibah refers to the transfer of property

9 This definition is consistent with the Mejelle (p.131).

ISRA International Journal of Islamic Finance • Vol. 2 • Issue 2 • 2010 77

Looking into the concept of hibah as a mechanism of estate