“It is the duty of every Muslim who has anything to bequest not to let two nights pass without writing a WILL about it.” Shahih Al Bukhari
Islamic inheritance system is usually explained within the conceptual and mechanistic framework of faraid (Islamic Law that deals with the distribution of the estate of a deceased person among his heirs in accordance with God’s decree in the Holy Quran and the hadith), bequest and gift (hibah). In Islam, there is no limitation on the transfers of wealth during the lifetime, but the disposal of estates upon the death is strictly subject to faraid and bequest rules. The salient feature of faraid implies that inheritance is subject to pre-determined quantum of shares of the eligible heirs. Bequest, on the other hand, is limited up to one-third of the estates value and only allowed to be given to the non-heirs. Considering Islamic estate planning and Islamic inheritance system within the same framework renders a new dimension as part of the Islamic economics and finance. Making a wasiyyah (WILL) is the most crucial part of such a system.
Importance Of Making A Wasiyyah (Will)
According to Islamic Shariah all the Muslims should ensure that their assets are distributed among the surviving family members in accordance with the Shariah of Islam. This is compulsory on the inheritor, and the best way to fulfil this obligation is by preparing a legally valid WILL.
The assets of the deceased should be distributed according the following order of priority
- Funeral express
- Any outstanding debts should be paid
- Any bequests (wasiyah) should be honored with the condition that their value does not exceed one third of the value of the remaining assets and the recipient of the bequest is not an individual who is entitled to receive a share of the deceased. Deceased can choose to make a bequest to charity as a means of ensuring to receive reward of his good deeds continue to benefit him after his death. Making bequest is optional.
- Remaining assets, after deducting debts, funeral expenses and benefits and bequests (must be distributed according to Shariah, among the surviving family members.)
The Islamic Law states that the parents receive one sixth of the estate each. The surviving wife receives one eighth of her deceased’s husband’s estate; or in case of the surviving husband then he is entitled to one quarter with the balance shared between the children such that the sons would receive twice as much as the daughters.
A will must be legally valid so that the courts can enforce its stipulations upon death if enforcement is required. Given that Sharia is not recognized under English law, how does a British Muslim ensure distribution upon death takes place according to Sharia principles?
The simplest way to resolve this issue is to place assets "under trust", but only after death has occurred, not prior to death. A trust is a distinct legal entity recognized under English law and is controlled by trustee on behalf of beneficiaries which are usually the family members. Specific trustees can therefore be nominated within the Will, and the Will can also place upon the trustees the obligation of following Sharia principles. This arrangement resolves the above dilemma as the trust is an entity easily enforceable under English law. The responsibility of deciding how to apply Sharia is conferred upon the trustees and not the courts. As long as the trustees are honest and competent, the Will can thus be implemented according to Sharia, in a legally enforceable manner.
The simplest type of trust recognized under English law is a "bare trust". This requires trustees to establish the Sharia position and then distribute the wealth of the deceased accordingly. This type of Will can be sufficient as long as there are no inheritance tax concerns and there is no fear of assets being taken unfairly from the beneficiaries.
We Can Prepare An Islamic Will For You
Our expert Solicitors has extensive knowledge of both the provisions of Shariah law and the requirements under English law. We are able to provide tailored advice to your individual situation, ensuring that your Islamic Will is prepared in accordance with your faith.
We can provide clear advice and planning in relation to many common issues faced when writing a Will according to Islamic law, including:
- Islamic inheritance permutations
- Guardianship rights
- Inheritance tax planning
- Joint and mixed property/asset ownership and the Islamic perspective
- Gifting and distributions during one’s life
- Protecting assets for beneficiaries
- Utilising the Wasiyyah
- Appointment of Executors and Trustees
- Funeral wishes
- Charitable gifting