Updated: Jun 30, 2023
Creating Islamic Wills is considered confusing, complicated, and time-consuming. The majority of the time, people do not realize the fact that one small error in your Will may give your executor a difficult time during the probating of the Will. There are some of the elements in Islamic Will are common between shariah and legality, However, there are key differences you need to understand. Creating Will is not just paperwork, you need to look at a holistic view of how your family size and types of assets fit into your estate plan. We made it easy for you by putting in simple concepts below.
Before going into details, We would like to explain the basics of Wills concerning Shariah and divide into the following types
Shariah and Legally compliant Wills
Shariah-compliant but not meeting the Legality
Legally compliant but not meeting the Shariah laws
Neither Shariah nor Legally compliant Wills.
Shariah compliant Will: The Will that complies with the Islamic Shariah laws is the Islamic Will. As per Shariah scholars, the Wills can be Verbal, Holographic, or Written form. All three types are acceptable but there are common elements linked to Islamic Will such as the Will (Oral or Written) needs to be witnessed, the inheritors to be informed, the inheritance of a deceased must be distributed as per Islamic laws of inheritance. There are the minimum basic requirements for Islamic Wills to be valid in the context of Shariah. There are some of the countries where the Shariah law is prohibited or banned, unfortunately, and in those, countries your Will needs to be customized or if needed consult a lawyer firm who are well aware of the local regulations. Followings are the additional things that need needs to take into account.
Distributing estates other than Islamic inheritance rules: The Will narrates of distributing the estates in the Will, is not allowed because you can not enable distributing estates except Islamic laws of inheritance. For example, someone created Will that explains that give it to my sons and daughters such and such share which will bypass the Islamic Laws of inheritance and your Will become invalid in the context of shariah, even though the Will is legally valid.
Charitable donations: Giving away more than one-third as a part of Charity in the Will makes your Will non-compliant to Shariah, even though the Will is legally valid. The two-thirds portion of your assets must be distributed according to Islamic Laws of inheritance.
It was narrated from 'Amir bin Sa'd that his father said: "I became ill with a sickness from which I later recovered. The Messenger of Allah came to visit me, and I said: 'O Messenger of Allah, I have a great deal of wealth and I have no heir except my daughter. Shall I give two-thirds of my wealth in charity?' He said: 'No.' I said: 'Half?' He said: 'No.' I said: 'One-third?' He said: '(Give) one-third, and one-third is a lot. It is better to leave your heirs independent of means than to leave them poor and holding out their hands to people.'" - Sunan an-Nasa'i 3626, Book 30, Hadith 16.
In the majority of world countries, your charity bequest has to be done through residence countries registered charitable organizations. Otherwise, your Charity may not be valid and your estates may pose a legal issue during the estate distributions. You may be able to do one-third of charity through your last Will as per Shariah but you may need to consider tax impacts. Making charity upon death in some of the countries have the inheritance, estates and capital gain tax gain implications upon the amount more than annual or lifetime or other applicable allowances. Also, you need to consider the different interpretations of the charity among different jurisprudence of Islamic school of thoughts and so, consult religious scholar or Imam prior to making a decision on charity.
Bayt-ul Mal If no fixed inheritors or close relatives are alive take the portion of the share all assets of deceased go to Byat-ul Mal i.e. Islamic states for the community). If the Islamic State or treasury is not established officially in your country then consider Muslim local, the national or international reputed government recognized charitable organization can be the Islamic states. If there is no explanation in your estate plan about doing charity then the court may decide to give it away to any governmental organizations. If you do not have a Will and such a situation takes place then you have no way restricting the judiciary in deciding of giving away estates in any governmental organizations which may have a purpose, not necessarily comply with your faith.
Gifts after death are not valid There is a difference between Gift (Hiba) and bequest or Will (Wassiyyah). A person gives in a lifetime that is called as a Gift (Hiba) and writing down for giving to inheritors is called bequest or Will (Wassiyyah). To more insight into this topic, please refer to our article on "Gifts in Islam".
Adopted child or children may all be considered part of family members in the context of Legality, but in the context of Shariah is not the case. Only born children or children are the inheritors and adopted children or children can not inherit estates from the deceased.
Marital status In the shariah context means a lot. There are other means that may be legally valid, but may not be valid in the principle of Sharia. The registered secret marriages, common-law relationship partners, or any other relationship that is recognized by the country's constitutional government considered legal and valid, however in Islam are these forms of marriages lacking Islamic ceremony "Nikah" and registration at local Muslim mosque or organization are considered non-shariah compliant. There are many scenarios where legality and Shariah compliance differs a lot as follows
If a couple married as per country law but did not follow the Islamic ceremony called "Nikah", the marriage is legally valid but not as per Sharia.
If a couple married as per Islamic law and followed an Islamic ceremony called "Nikah" but not registered in Government then they are considered to be legally not married even though they are Islamically married. The spouse can not allow to inherit or enjoy spousal rights legally. This especially comes into play where the forced heirship (or reserved portion of shares) are allocated as per country law. Also, in case if there is no Will then Spouse will not get benefit through Instastacy law.
Husband can marry more than one wife up to four as per Sharia but not valid in most Muslim minority countries. The husband can register only one wife legally who can be eligible to get the spousal rights that we mentioned earlier. The rest of the other wives will be considered unmarried in the sight of the government.
Secrete, Common law or Same-sex marriages are one or all forms of legal marriages, however, they are not considered valid in terms of sharia and so, these all relationships are null and they can not inherit from each other as per Islamic law.
Divorce under country law is not the same as the divorce called "Talak" under sharia law. If a Husband divorce his wife under country law may not inherit after Husband's death but she can still inherit as per Shariah law if he did not follow Islamically.
A Husband divorce his wife by giving her "Talak" islamically but never bother to follow the legal divorce her then she will still inherit as per country law but cannot inherit Islamically.
The Islamic laws of inheritance are diverse from the majority of non-muslim or countries succession laws, and it does not mean that you can not create Islamic Wills because the majority of world countries do not prohibit anyone expressing his or her wishes about estate distribution as long as the fundamental legal requirements are meeting. Legal requirements may differ from one jurisdiction to an another and so, any miswritten texts in the Will may result in either partially or fully noncompliance.
The perspective of non-Muslim world countries is changing, the way they look at Muslim and Shariah law. Due to the passivity and ignorance of Islamic faith, it is often difficult to implement the Shariah compliance estate plan which may include creating Wills and trusts. One of the best ways to enforce shariah is through creating irrevocable Trust outside of the Will which narrates your Wishes about distributing estates inline to Shariah. There is another trust type the 'Testamentary trust", you may create part of the last Will. There are a pros and cons of every Trusts types and so, expert advice to be sought before creating Trust.
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