Importance of making a will In Islam
• From a Sharia perspective, the correct distribution of assets is a compulsory
obligation on the deceased. The implications of dying without a will,
particularly in England, are aggravated by the English intestacy rules which
govern the distribution of assets in a way which is at odds with the principles
laid down through the Qur’anic injunctions.
• The heirs entitled to inherit under Sharia law may mutually agree to vary the
statutory entitlements due to them under the intestacy rules and distribute the
assets in accordance with the Qur’anic injunctions without the Court’s
involvement. This would not be possible however, where there are minor
beneficiaries (for the purposes of English law, these are persons under the age
of 18). However, mutual agreement is something which cannot be guaranteed,
especially where assets are considerable, hence the importance of making a
will.
Wealth distribution by
inheritance must follow a prescribed sequence of steps:
• Any outstanding debts of the deceased should be repaid;
• The funeral expenses must be paid from the assets of the deceased, unless the
expenses are met voluntarily by family members;
• Any legacies stipulated in the will must be paid (there are certain
constraints on the testator regarding the inclusion of legacies and these are
mentioned briefly below);
• The remaining assets are to be distributed in accordance with the Qur’anic
injunctions (see “Distribution of the estate” below).
An individual Muslim has a right of disposal as to 1⁄3 of his net estate. This
may be bequeathed to anyone not entitled to a fixed share under Sharia
principles (surviving spouses, parents or children are all entitled to fixed
shares – they are generally known as the “main beneficiaries”).
In the absence of any bequests up to 1⁄3, the entire estate will be distributed
amongst the surviving relatives in the manner stipulated by Sharia.
• With regards to the remaining 2⁄3, this can be distributed in one of three
ways:
- in accordance with the strict rules prescribed
by the Qur’anic injunctions (see “Distribution of the estate” below); or
- a testator can suggest that instead of following
the strict rules of distribution, the assets are to be distributed according to
his/her wishes. However, this is subject to the agreement of the main
beneficiaries after the death of the testator; or
- the
main beneficiaries may agree to divide the assets according to their common
agreement rather than following the Qur’anic injunctions.
• No specific wording is essential for making a will in Islam. However, a
legally valid will which simply states that Sharia should be enforced is
insufficient as the English courts are unable to enforce a different system
with which they are unfamiliar.
• Ideally, the will should stipulate the exact percentages due to the
beneficiaries in accordance with the Qur’anic verses. However, this is
impossible to do as the shares received by each family member depend on who
survives the deceased – an unknown at the date the will is drafted.
• This can be resolved by placing the assets under trust. An obligation can be
placed upon the trustees to follow Sharia principles. A discretionary will
trust is the best method of trying to ensure that the testator’s property
devolves in accordance with Islamic law, as it provides for the greatest
flexibility.
• The will should also contain a residuary clause dealing with what should happen
to the estate if there are no surviving relatives, e.g that it should go to a
named charity.
• A clause dealing with practical considerations concerning Islamic rites of
burial such as jenazah (the funeral prayer), ghusl (ritual washing), kafan
(burial shroud) and dafan (burial not cremation) should also be included.
• As with English law, the Qur’an dictates that the will be witnessed by two
witnesses and sets out the qualifications of those witnesses.
• In relation to the appointment of executors (“the wasi”), the principles of
Sharia law are similar to English Law. However, fundamentally, the wasi(s) must
be Muslims. If a discretionary will trust is prepared, the testator should
leave his executors/trustees a letter of wishes requesting them to distribute
the estate in accordance with Sharia law. They in turn may seek the advice of a
religious scholar known as an “alim.”
DISTRIBUTION OF THE ESTATE
The Qur’anic verses contain entrenched rights for spouses, parents and
children. These are as follows:
• Surviving Spouses
- A
surviving husband is entitled to 1⁄4 of the estate where there are descendants
and 1⁄2 where there are none.
- A
surviving wife is entitled to 1⁄8 where there are descendants and 1⁄4 where
there are none.
- Widows/widowers
cannot be disqualified from the inheritance of their deceased spouse if they
choose to remarry.
It is appropriate to
note here that Sharia law does not recognize the concept of a joint tenancy,
where any jointly owned property passes to the other joint owner(s) by survivorship,
outside of the will. Under Sharia law, properties should be held as beneficial
tenants in common. This is because it is against Sharia principles to allow a
surviving spouse to inherit more than their share.
• Surviving Mother
Subject to the spouses’ interest:
- If
the deceased has surviving children or remoter issue, the mother inherits 1⁄6.
- If
the deceased has no children, the mother inherits 1⁄3.
- Where
the deceased’s father and surviving spouse survive, but there are no children,
the mother receives 1⁄4 after the spouses’ share has been deducted.
- Where
the deceased has no children, no spouse, no father and no more than one brother
or sister, the mother receives 1⁄2.
• Surviving Father
- Where
the deceased is survived by daughter(s), the father receives 1⁄6. He also
receives the remainder after deducting the daughter(s) and any other immediate
relatives’ shares (i.e spouse or mother).
- Where
the deceased is survived by at least one son, the father receives 1⁄6, but no
share in the remainder.
- Where
the deceased has no children, the father receives whatever is left over after
distributing the shares of the immediate relatives (such as a surviving spouse
or mother).
• Surviving Children and remoter issue
- Children
are entitled to whatever remains of their deceased parent’s estate after the
surviving spouse and parents of the deceased have taken their shares.
- Male
children or remoter issue receive twice the share of female children or remoter
issue. The rationale for this is based on the Islamic legal presumption that a
brother has an obligation to provide for his sister’s support.
- Where
there is only one daughter, she receives 1⁄2 of the net estate. If there is no
other relative present, she inherits the remaining 1⁄2 as well.
- If there are two or more daughters and no son,
then they will share 2⁄3 of the estate.
- If
there is also a son present, the daughters do not have any fixed share. They
will share the remainder with the sons - their share will be half of the son’s
share.
