Understanding Islamic Wills
Back in 2001 there were just 1.55 million Muslims in the UK. By 2011 there were 2.7 million. In 2018 that rose to almost 3.4 million. And, because the average British Muslim woman bears 3 children compared to 1.8 children for non-Muslim women, numbers are set to triple (and top 10 million) in the next 30 years. So law practices such as Goodwills must consider Muslim legal needs. Actually the British Government has, to an extent, demonstrated some flexibility in this regard. See www.telegraph.co.uk/news/religion/10716844/Islamic-law-is-adopted-by-British-legal-chiefs.html which reports moves in 2014 to allow something of a parallel legal system.
That apart, clearly Muslims have much the same requirements, in practical terms, as non-Muslims when it comes to wills because we all need to distribute whatever wealth we have after our deaths. Muslims are effectively obliged by Islamic teaching to write wills, and the guidance is thus:
‘It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it’.
And, actually, Muslims who die intestate (i.e. without leaving a will) are subject to the same British laws as everyone else. Moreover they are deemed to have failed to comply with Islamic teaching.
Furthermore it is fundamental to Islamic teachings that wills should be carefully-considered and fair. Indeed Muhammed is credited with saying that:
‘A man may do good deeds for 70 years but if he acts unjustly when he leaves his last testament then the wickedness of his deed will be sealed upon him and he will enter the Fire (Hell). If, on the other hand, a man acts wickedly for 70 years but is just in his last will and testament then the goodness of his deed will be sealed upon him and he will enter the Garden (Heaven)’.
The Office for National Statistics is currently unable to break numbers of Muslims down into Sunni, Shia, Ahmadi etc. Yet, having said that, although all Muslims follow the Koran and have largely the same theosophical beliefs, the political divisions that separate sects from each other mean that there are some clear distinctions amongst them that impact on how their wills are composed.
This article looks at the general and common aspects of Islamic wills and touches very briefly on what the aforementioned differences might be with Sunni v Shia distinctions as an example.
IN INTENT AND EXECUTION, WHAT MAKES AN ISLAMIC WILL DIFFERENT?
In some senses an Islamic will is not different for the benefactor writing it to those of other religions or none under UK law. (For example there is still an executor who can be male or female, there is still a probate system, and a beneficiary still cannot profit from killing the beneficiary.) Likewise the benefactor intends to distribute their wealth and leaves a document to do that. And they largely do so to reflect their own wishes. But there are some differences:
- Usually an Islamic will states from the outset the belief in Islam of the will-maker
- It will state that the deceased wishes to be buried in keeping with Islamic ritual (though, of course, UK law must be observed)
- It is in step with Islam for non-believers (in Islam, so they may otherwise be benign monotheists) to be barred from inheriting
- There are general rules-of-thumb applied with specific fractions of an estate being left to immediate family then others
- Some of the tenets of the aforementioned rules-of-thumb can be contradictory, in which case a scholar needs to be consulted
- Funeral expenses (the funeral normally occurs before dusk though that may be impractical / illegal) are paid first from the assets
- Debts are covered next, if funds allow
- The benefactor cannot leave more than a third of their estate to anyone or anything else unless established heirs agree to that
- That flexibility with the third cannot allow a beneficiary to get it as well as another pre-prescribed share – unless the others agree
- The closest living relatives i.e. husbands, wives, sons, daughters, fathers and mothers) get precedence so always inherit a share
- Male children usually inherit double what their sisters inherit
- Thereafter more distant relatives (e.g. grandparents, grandchildren and half-siblings) inherit fixed shares
- Many complications exist. So, for example, if a father is alive then the grandfather will not inherit
- These shares will often fall into fractions e.g. ¼, ½, ⅛, ⅓, ⅔ or ⅙ and are ordinarily rigid
- The share-out is dependent on how many people in a specific category are alive, since they are all usually treated equally
- There is usually no provision for illegitimate children
- Provisions for children might well stipulate Islamic guardians and funds to be used for Islamic education
In all fairness it is far more complicated than I can possibly cover here. But Goodwills does have a team to deal with such complexities.
WHAT ELSE DO YOU NEED TO KNOW?
In general terms the will states the assets but it need not state the distribution since this is largely prescribed by Islamic teaching and the executor has to be stick to the age-old formula. The will should never be read before burial. Whenever that occurs the wait before a reading is usually three days.
The most-frequently-used terminology ought to be explained for those who need to know but may not be familiar with it:
Al-Wasiyyah – An Islamic will
Al-Alim – Islamic advisor
Al-Mouazih – Redistribution
Al-Musi – Benefactor
Al-Wasi – Executor
‘Asaba – Residuaries
Zawil Furood – Established inheritors
Sadakkah Jariyah – A continuous charity
Makhraj – LCD
Wasiyyah – Gift or legacy
Al-Tareeka – Residual estate
Al-Wasaya – Probate
SUNNI v SHIA LAW
It is worth seeing www.researchgate.net/publication/312016791_Shia_and_Sunni_Laws_of_Inheritance_A_Comparative_Analysis for a little detail on some of the key differences between Islamic inheritance law as discerned by the Sunnis and the Shias. Such differences can, for example, touch on the offspring of marriages to close relatives. This is, of course, more common in some cultures than others. Meanwhile Shia law would treat paternal and maternal uncles as being equal. Though Sunni law would only give a share of assets to paternal uncles and not maternal uncles. Thus this is a complex field and solicitors must know what they are doing!
WHAT WE AT GOODWILLS CAN DO ABOUT THIS
The upshot of all of the above is Goodwills knows, because it has an Islamic will team, more than most. And it can knowledgeably advise clients on how to comply with Islamic teachings – whatever the sect – without accidentally contravening British legislation.
So I always advise people to pick up the phone and have a chat with Goodwills. We’ll be able to give some quick advice free-of-charge and then (if we agree it sounds like the basis of us working together to draw up, safely store and execute an Islamic will) we can sit down together and hammer out a solution that makes great sense.
See more on our website at www.goodwills.net/wills/islamic-wills/