Introductory note
It is
highly recommended as perceived from the sayings of the Holy Prophet (S.A.W.)
to write a Will.
To
avoid the common pitfalls and prevalent problems when persons die instate, we
have taken this initiative to prepare this booklet. It contains guidelines on
making an Islamic Will as well as a sample Will. If you fill this tailor made
Will it would become a legal and binding document.
The Africa Federation embarked on this task of preparing the
guidelines and a sample will from which the members of the community can
benefit. The following booklet was compiled from various sources and edited to
meet the present needs. It is by no means a complete document and only serves
as a guideline to make a Will that is both Islamically
and legally acceptable. In short it explains certain aspects to be considered
when making a Will and elaborates the parts of an Islamic Will and how to make
one.
We would like to acknowledge the following sources where we
extracted information from: GCG booklet on how to make a Will, Sayyid Muhammad Rizvis Making an
Islamic Will (1994) and the World Federation Sample Will.
We
would like to add that there may be assets you own or debts you owe, which
nobody knows about. If you have them listed in this secret document to be
opened after your demise, at least the assets will not go to waste and your
debts will be cleared.
Many
orphans and widows have had to endure hardships and resort to legal wrangles
lasting a long time until the estate of their deceased is sorted. If the Will
clearly stipulates all your wishes then there would no room for any infighting.
You
have the choice of using one third of your estate as per your wishes and do not
miss on this chance to earn salvation for the hereafter by using this option to
do the best charity. Their might be some activities you have wished to
undertake all along, this is the chance to get them fulfilled by allocating
valuable resources for it to become a reality.
We
strongly believe you have benefited and been a proud member of our community.
Now it is the turn of the community to gain from you out of the one third.
Perhaps you could name your local Jamaat or Regional Federation or a charity of
the community as a beneficiary; and leave behind a legacy from which many will
benefit perpetually and you shall be remembered with fond memories and be an
example to emulate for others.
We
humbly suggest that you give this document the seriousness it deserves and do
not put your Will on hold any further. Please read it carefully and fill it
today. No one knows when death comes.
With
Salaams and Duas,
Zulfikar H Khimji
April
2003
Making an Islamic Will
1.
Importance of Making an Islamic Will
The timing of death is uncertain, but death itself is
certain. Most people believe that their possessions will automatically pass on
to their immediate spouse/children/family with no complications and everyone
will receive what the deceased wanted them to. The fact is, unless you have
made a Will, there is no guarantee that this is always the case. Yet, most
people die without making one. Even if you have no family, it is important that
you make a Will so that what you own will pass to whomever you wish. You will
no doubt want to be sure that when you die, your property and affairs be dealt
with in accordance with your wishes and in an efficient manner.
If you die without making a Will, the government appoints an
executor who will divide the estate among the heirs, as he/she seems fit. This
could mean that some of your dependants may be deprived of essential financial
security and possessions of particular sentimental value. The pay of the
executor for this job will come out of your estate, and the government
bureaucracy takes its time in getting things done.
Secondly, from the Shariah point
of view, your heirs may get more or less than the shares specified for them in
Islam. By not writing a Will, you are leaving the door open for a non-Islamic
authority to distribute your estate according to its own views. So not having a
Will is costly as well as problematic from both the State and the Islamic
points of view.
If you have no living relatives and have not made a Will
leaving your estate, say to a friend, a favourite
charity or other organization, then the State could receive everything on your
death.
By making a Will, you can be sure that your estate is passed
to the named beneficiary/ies in the most
tax-efficient way. If the country you live in imposes inheritance tax, the may
also take positive steps now to limit your estate's liability to inheritance
tax by making gifts, taking out life assurance cover or by setting up a trust,
which makes specific provision for your family. To help achieve this, it is
important that you should make a Will and, having written it, check it
regularly to make sure that it always is still up to date. Times change,
families grow and yesterday's Will may not be right for today.
If any
of the following apply to you, it may be advisable to seek specialist advice
when writing your Will:
If you live, or own property
or assets anywhere in the world.
If you own a business.
If you have previously been
married and/or have children from a previous marriage or relationship.
If you are married with assets
worth significantly more than about £250,000 and wish to include provisions in
your Will to reduce the amount of Inheritance Tax payable (relevant to some
counties only).
Our
Holy Prophet Mohamed (S.A.W.) said:
It
is not proper for a Muslim to pass two nights except that his/her (last) Will
and Testament is near his/her pillow.
One
who goes from this world after making a good Will dies the death
of a martyr.
A person who without making a Will, dies the death
of a pagan.
Although
according to Islamic law a Will need not necessarily be in writing or in
any particular form of verbal declaration to constitute a WASIYYAT, the
present day world requirements and laws of the land makes it obligatory upon a
person to prepare a Will in writing to ensure speedy disposal of
wealth, to avoid unforeseen hardships to the family members and to alleviate
unnecessary problems for the administrators.
If a
Will is not made in writing, then:
a.
The
foremost problem arises as to who will administer and distribute the estate and
usually the nearest relative or friend takes over.
b.
The
administrators (Executors, Trustees) of deceased's estate cannot easily obtain
PROBATE (Power to distribute the wealth) from a Court of Law, as it is time
consuming, and in some countries like Kenya, in order to obtain Grant of Letter
of Administration, two SURETIES would be required, each one having to give
SURETY amounting to twice the value of the deceased's gross estate. It is
obviously difficult to get such sureties, and going to a bank for surety would
entail unnecessary expenses.
c.
Pending
the receipt of Probate, the Bank account of the Deceased would be frozen and
the beneficiaries would not be in a position to draw from the Bank for the
Household maintenance, unless there is a joint account and either party is
surviving. However, one can always obtain an interim or limited grant for
specific purpose, say to operate a business or bank account etc, with a view to
preserving the deceased's estate pending full grant.
d.
There
is a likelihood that certain acts for example Hajj, prayers and fasts for so
many days missed by the deceased during his lifetime, would remain unperformed;
and certain wishes of the deceased would remain unfulfilled.
e.
In
case no one is willing to become a Trustee, the government (Public Trustee
Department) will take over the administration. Again this would result in delay
and would entail expenses.
So,
although the law (the State as well as Islamic) does not say that making of the
Will is a must; but by looking at the consequences of not having a Will, it is
necessary both from legal as well from Islamic aspects, to have one and avoid
misuse of ones estate after death.
Every
man and woman should make a Will. The conditions regarding
the capacity of the testator making a Will are dependent upon the laws of the
country in which the testator lives, and subject to such requirements, which
may have an overriding effect.
2. The One-Third Option
After a
person dies, there are certain possible relationships between him and his
estate. These are:
- he
has full control over it through a Will
- he
has partial control over it through a Will
- he
has absolutely no control over it
Islam
has taken the middle position. It says that when a person dies, he still
retains the right to decide about up to one-third of his entire estate. But as
far as the two-thirds are concerned, the deceased person loses the right to
dispose according to his wish. The two-thirds must be divided according to the
shares specified by the Shariah. (Most of these
shares have been specified in the Holy Qur'an
itself.) This law is part of the overall system, which Islam has introduced for
the distribution of wealth in society.
The
right of disposing the one-third according to your own wish can be exercised
only by making a Will.
You can do whatever you like with the one-third: give to a family member, a
relative, a friend, a charitable cause or organization, etc. For example, you
can use the 1/3 or a part of it to make if you like the shares of your wife
or your daughter equal to those of your other children.
When
the Holy Qur'an talks about Wasiyyah,
which is normally translated as "Will", it refers to the Will
covering mainly the one-third only. For example, it says:
0
you who believe! It is prescribed upon you that when death approaches one of
you If he leaves behind plenty then he should make a Will (Wasiyyah) for his parents and near relatives in the
one-third. This is a duty upon the pious people. (2:177)
Writing
more than one-third to a person or a cause means depriving the potential heirs
of their rightful share in the estate; and, therefore, it is considered unjust
and wrong. The Holy Qur'an says, if a person fears
that the testator is [wrongfully] inclined [to one party] or is sinning [by
depriving the rightful heir in the Will, and so that person intervenes between
the testator and the potential heirs] and makes peace between themthen there
is no sin on him. All
is Forgiving, Merciful. (2:182) What has been
described in this verse as wrongfully "inclining to one party" and
"sinning by depriving the rightful heir" is related to the two-thirds
of the estate.
The
one-third will be assessed after taking those expenditures, which are incumbent
upon the whole estate, like funeral expenses, and the legal or religious debts.
Monetary
obligations (Religious or Legal) are to be deducted out of the whole estate
whether the testator made a Will or not. Some examples are: debts owed by him,
property sold by him but not delivered to the buyer, the price of articles
purchased by him but not paid for. Sureties and guarantees if necessary to be
made up, fines, taxes, death duties, Khums, Hajj, Zakat, Raddul-Madhalim, monetary
retributions as those of Kaffarra of Ihram and Saum, monetary Nazr like Nazr of Sadka, etc. When all
monetary obligations of the estate of the deceased are deducted, then the
one-third of the remaining property will be the subject of the Will. (The
testator can, however, specify that certain monetary obligations be paid out of
the one-third instead of the whole estate).
Since
the testator has got the right to dispose of the one-third of the net estate,
he can bequest the same in accordance with his own personal wishes.
In
order to prepare a Good Will (according to Ahadith),
it is highly recommended to bear in mind the following Mustahabat
while making bequest:
- Bequest made
for feeding poor and incapacitated people;
- Bequest made in
favour of relatives, for example children of
ones own deceased son or daughter;
- Bequest made in
favour of other poor or incapacitated relatives;
- Bequest made in
favour of ones own parents;
- Bequest made
for the maintenance of religion.
One
could also make a bequest for Sadaqate Jariyah that is having perpetual benefits, for example,
donating to hospitals, schools, mosques, building of wells, and the like.
Other ideas for the distribution of the one-third
Families
usually have family trusts. In order to keep the perpetuity of the main
objectives of the trust created the trust could be in the name of the Jamaat or
the Regional Federation, or in the joint names of the family and the Regional
Federation, so that the trust is maintained and used for what it was originally
planned for. The other issues is that the Jamaat can claim the trust because it
is an institution whereas the family members may not always be able to do that,
especially if they dont live in the country in which the property is.
1/3 of
the property can also be bequeathed to the Jamaat to which one belongs. You
could even take out a life assurance in the name of the Jamaat like one would
take out in the name of the family. You
can also take out education policies in the name of the Jamaat and/or in the
name of your children.
For
men, in todays situation you could also give 1/3rd to your wife, to
increase her share of inheritance.
3. What is an "Estate "?
An
"estate" is the collective name for everything that you own. The
estate consists of the followings:
·
all
properties, goods and investments that are in your name.
·
half
or the specified portion of the goods and investments in which you are a
co-owner.
The first type of property is
very straightforwardthe entire estate will be divided according to the will
and the specified shares of the heirs.
But there are certain cases in
the second type which need explanation:
Joint Account: According to laws of some countries, with death
of one spouse, the money becomes the property of the surviving spouse. Such a
transfer of money is not valid in Islam: Islamically,
half of the money in that account belongs to the surviving spouse and the other
half will become part of the deceased's estate.
House: House are normally in the name of the couple. Such
ownership can be of two types' common ownership and tenants in common.
"Tenants in common" is also without any problem because when one
spouse dies, his/her share becomes part of the estate.
But in "common ownership", there is a problem
because with the death of one spouse, according to laws of some countries, the
entire property becomes that of the surviving spouse. This is contrary to
Islamic laws, which says that the surviving spouse gets his or her 50% and the
remaining 50% becomes part of the estate of the deceased.
We will talk more about this below.
4. Who can inherit?
After
disbursing the one-third according to your Will, your remaining estate is to be
divided among the heirs mentioned in the Holy Qur'an:
the surviving spouse and blood relatives.
No one
can prevent the spouse from inheriting his or her specified share from the
estate of the deceased spouse.
As for the blood relatives,
there are of different degrees.
First degree: your parents & children
Second degree: your grandparents & siblings
Third degree: both your maternal and paternal
uncles & aunts and their children
The
right of inheritance by virtue of matrimony appertains to the individual heirs
under all circumstances. A husband or wife is never excluded from inheritance.
A widow or widower is entitled to the specific share before the estate is
divided amongst the heirs succeeding by virtue of blood relation (Nasab).
It is
very important to note that the laws of the country in which the Testator is
domiciled, may have an overriding effect on the Shia Inheritance Law, and upon
such matter as classification of heirs, unless and until that country also
gives recognition to the Shia Inheritance Law.
Whilst
devising a Will it should be borne in mind that the Testator has got a right to
dispose only one-third of his estate according to his own wishes. The
remaining two-thirds must be distributed to the heirs in accordance with
the laid down rules of the Shariah. The Shariah is very clear in this matter and has laid down specific
shares and proportions for distribution to each class/es
and group/s as applicable. For the classes and groups, see the diagram above.
5.
Basic Shares of the Most Common Heirs
What you see below are the basic shares of your most common
heirs. In these examples, you have been considered as the deceased and the
relatives mentioned here are your heirs.
|
Your
Heirs |
Their
Shares |
|
YOUR
FATHER |
if
you had a child 16.66% (1/6) |
|
if
you had no child whatever remains after share of the mother and/or the
spouse. |
|
|
YOUR
MOTHER |
if
you had a child or brother* 16.66% (1/6) |
|
if
you had no child or brother* 33.33% (1/3) |
|
|
YOUR
HUSBAND |
if
you had a child 25% (1/4) |
|
if
you had no child 50% (1/2) |
|
|
YOUR
WIFE |
if
you had a child 12.5% (1/8) |
|
if
you had no child 25% (1/4) |
|
|
CHILDREN |
whatever
remains after giving the shares of the parents and/or the surviving spouse. |
|
a
male child gets twice the share of a female. |
* In presence of
a parent (or a grandparent) or a child (or a grandchild), the brother of the
deceased does not get anything. However, he affects the share of the mother:
instead of 1 /3, it becomes 1/6.
(a) Will a female child
gets half of a male child's share?
It is
not a male versus female issue; it is not a sexist issue. If it were a sexist
issue than why do we have cases in inheritance where females get the same
percentage as their male counterparts. For example:
·
if
daughter is the only heir from the first group, then she inherits 100% and she
excludes her grandparents and her uncles.
- a mother in most cases gets
1/6, the same share as that of a father.
So, why
is there difference? The difference in inheritance is based on economic
responsibilities: those who have been given greater burden of responsibility
have been given greater share in inheritance. Rights are tied to
responsibilities. The son gets a larger share because he has his family to take
care of, while the daughter is taken care of by her husband.
Another example of the inter-relation between responsibility
and rights is the case of the mother: if parents are the only heirs and the
mother has no other sons to take care of her, then her share increases from 1/6
to 1/3.
Objection:
What if the daughter's family is not rich or that she is a minor? Answer: The
one-third option has made the Shariah laws quite
flexible. If you think that your daughter needs extra help, then you can give
up to the one-third of your estate to her:
|
son |
daughter |
|
|
44.44 |
22.22 |
out of the 2/3 |
|
5.56 |
27.78 |
Possible use of the 1/3 |
|
50.00 |
50.00 |
|
(b) Wife's Share:
The
wife's share is 1/4 if the husband was childless or 1/8 if he had a child. This
is basically because of two reasons: it is possible for a woman to marry again;
and, if she has grown up children, then they are responsible for her
maintenance.
However, even in this case, the one-third rule makes the Shariah very flexible. Look at the following example:
|
Wife share in % |
Son share in % |
Daughter share in % |
|
|
12.5 |
58.34 |
29.16 |
out of 100% |
|
8.33 + 33.33 = 41.66 |
38.90 |
19.44 |
possible use the 1/3 option |
6. Wifes Share
Since
the share of the wife is somewhat complicated, it is necessary to explain a few
points separately:
Firstly,
as the definition of the "estate" shows, a house jointly-owned by a
couple is divided according to the Shariah into
two: half becomes part of the estate of the deceased, and the other half was
from before the property of the surviving spouse.
Secondly,
according to the Shariah, the wife is not entitled to
inherit land of her husband (whether an agriculture land or a residential
plot): she only inherits the house on the land according to her proportional
shares in inheritance. In common ownership case, the wife is the owner of 50%
of the house and the land; the other 50% becomes part of her husband's estate
from which she will inherit only 6.25% of the house.
So in
the end, the wife becomes the owner of 56.25% of the house and 50% of the land.
This creates practical problems in some parts of the world: a house cannot be
divided; if other heirs insist on their share in the house, then it has to be
sold and the price divided accordingly; it is also difficult to assess the
value of the land separate from the house, etc.
Therefore,
the following is suggested:
1.
Either
give the house to your wife during your life-time.'
2.
Or,
if the value of the 50% of the house plus the land is within the one-third of
your entire estate, then write the entire house to your wife in your Will. In
this way, half of the house plus the land is her property from before and the
other half will go to her on strength of the 1/3 option in your Will. In
theory, it will work out like this:
a.
50%
of the land and house belongs to your wife.
b.
6.25%
of the house is your wife's share of inheritance.
c.
50%
of the land + 43.75% of the house goes to her by using the 1/3 option.
3. Or, if the value of the 50% of
the land is more than the one-third of your estate, then discuss it with your
other heirs (parents and children) and ask for their consent to write the
entire house for your wife in the Will. If they give the consent (which is
irrevocable), then you can write the house to your wife in the Will even if it
is more than her proportional share of inheritance.
7. Executor or Executrix
It is a normal practice to appoint your spouse or another
family member as the executor of your Will. There is nothing wrong with this.
The only conditions which are necessary for an executor/executrix is he or she
should be Baligh, sane, and a Muslim. It is not
necessary for him/her to be 'adil; Trustworthiness
would be a sufficient quality for an Executor.
If you
accept to be an Executor for someone's Will, then it becomes Wajib for you to fulfil your
duty. You can only reject this responsibility while the testator is alive; but
if the Testator dies before such rejection, or without the information having
reached him, the retraction is null and void, and it is incumbent upon the
Executor to assume the responsibility. An Executor cannot reject this role
after his/her death.
Appointment
of Executors (administrators, trustees)
A person has a right to appoint an Executor/s of his own
choice. He has the power to confide the execution of his last wishes to
whomsoever he likes, subject to the following restrictions:
a.
Executor
(Wasi) must be an adult. But, if a minor is made an
Executor together with an adult on the condition that the minor's rights and
duties would commence after his-attaining adulthood (Bulugh)
the appointment is valid.
b.
A
woman can be appointed as an Executor. An heir or even a blind person can also
be appointed as one.
c.
The
Executor must be sane (of sound mind).
d.
The
Executor should be a Muslim. If he renounces Islam, the executorship
will lapse and he cannot be reappointed as an Executor even after he has
re-embraced Islam.
e.
The
Executor must be trustworthy, though not necessarily adil (i.e. of approved probity according to Shariah).
Note
that:
- An Executor may
apportion reasonable normal remuneration for his services. But, when there
is an express implied signs that services be honorary, this Executor must
perform his duties without remuneration, provided he had accepted the
nomination.
- An Executor
cannot appoint his own successor or cannot entrust the management of the
testator's property to his own Executor or to any other person unless the
testator had authorized him to do so.
It is advisable, therefore, to make a provision in the Will giving power
to the Executor/s to nominate successor/s and to enlist assistance from others
for the smooth management of the affairs of the estate.
Why
appoint an Executor?
Ensuring that your estate is distributed in the way laid
down in your Will is the duty of an Executor. Executors are responsible for
dealing with the affairs of someone who has died, in accordance with the terms
of the Will. They will collect all the assets, settle all debts and
liabilities, and distribute what is left to the beneficiaries.
When choosing your Executor(s), you should consider people
you know, trust and who you believe will be willing and capable of accepting
the responsibility when the time comes.
You can appoint anyone you wish to take this responsibility
and many people chose a relative or a close friend, however there are
disadvantages in doing this. The person appointed may die before you, or may be
a beneficiary under your Will, which can lead to awkward situations with other
beneficiaries. Some of the tasks involved in administering an estate can be
onerous, time consuming and often need legal and taxation expertise. For some
Executors, this may be a worrying prospect.
The appointment of a professional specialist Executor with the necessary
skills and expertise to act with integrity and impartiality will remove all
these worries.
Nobody
likes to contemplate the effect their death will have on their family and
friends. Yet, at a time of personal sorrow, perhaps the heaviest burden one can
leave behind is the administration of one's estate.
8. Guardian of Children
It is very important to write in your Will about the
guardian and custodian of your children. Under normal circumstances, the
surviving spouse is made the guardian, and this is indeed, the best decision.
It is important to note here, for the sake of record, the
conditions, which must be found in the guardian of your children. The guardian
must be a Muslim, sane, and trustworthy. Those who have the right of custody of
children (in order of preference) are: father, mother; paternal grandfather;
and then anyone specifically appointed as the guardian of the children.
However, the duty of maintenance for the children falls upon the following (in
order of preference): father; paternal
grandfather; mother; other grandparents collectively.
The last person in this list of custodians can be from
outside the family, but one must be very careful in selecting such a person.
The most important condition is that he/she besides being trustworthy must also
be a Muslim who will raise the children according to the teachings of Islam.
9.
Updating your Will
Having made a Will it is important to ensure that it
continues to meet your requirements over time. If your circumstances change you
may need to amend the terms of your Will to reflect the new position. This is a
common situation and you should view your Will as something that can be easily
revised at any time.
Equally important to making a Will is that you review it
regularly to make sure that it reflects any changes in your circumstances or in
the names of those you would like to benefit.
Changes in financial or marital status, or a wish to include
new family members, are things that could lead to a need to change your Will.
During the review, you could also take into consideration any new legislation,
which may help reduce your inheritance tax liability.
10.
Some Legal Matters
For a
written Will to be recognised in the Court of
Law, must be:
a. dated,
b. hand written or typed,
c. signed by the testator, and
d. attested by two
witnesses.
The testator
must sign the Will in presence of the two witnesses. It is not necessary for
the witnesses to know the contents of the Will. The witnesses MUST NOT be the
heirs or beneficiaries of the testator, otherwise the bequests to them could be
void.
The names and
addresses of the witnesses must be recorded against the attestation
clause/signature of the testator at the time of signing, not later.
After the Will has been executed, no additions to, or
alterations to it may be made. Any addition or alteration to the Will
can be made by way of Codicil, (addition to Will) but it is not advisable to
make a Codicil, as this can create complications in the interpretation of the
provisions contained in the Will. It is better to prepare a new Will rather
than make additions or alterations to the original Will.
In some countries like
Glossary
Prior
to devising a Will, the definitions of some of the terms used should be
understood
- Will It is a directive,
which is also known as Testament. In terms of Shariah
it is called Wasiyyah.
- Testator Person making a Will.
He is called "MUSI".
- Beneficiaries
Persons
having right to inheritance. They are also as heirs or legatees.
The beneficiaries are called "Musa Lahu".
- Executors Persons appointed by the
testator, to execute, administer and distribute the estate in accordance
with the Will. They are also known as Administrators or Trustees.
They are called "Wasi".
- Estate All property/ies owned by the testator at the time of his death
that is subject to distribution, for example land, building, cash in hand,
cash at banks, shares, motor cars, etc.
- Net Estate Net Estate is a person's
estate less all debts owing by the testator at the time of death
including estate duty, income tax, Khums, Zakat, etc.
- Bequests or
Legacy
These are specific grants made, viz, grants
made to the particular members of the family or allotments made to the
poor or for the advancement of religion, etc.
- Probate Power to distribute the
wealth.
Sample[1] of
an Islamic Will
In the Name of God, the
Beneficent, the Merciful
This is
the last Will and Testament of (name)
..
currently
residing at (full address)
..
made on
(date)
..
1. I hereby revoke all my former
Wills, Codicils and Testaments made by me and declare this to my last Will.
2. I testify that I am a practising Muslim of the Shia Ithna
Asheri faith believing in one God, His Prophets the
last of whom is Muhammad (S.A.W.) and the institution of Imamate with the Imam
of the time being Imam Muhammad Al-Mahdi (A.S.).
3. Being a Shia Ithna
Asheri Muslim, I hereby declare the administration
and devolution of my estate be governed by Islamic Law of Succession and
Inheritance as followed by Muslims of the Shia Ithna Asheri Sect.
4. I APPOINT[2]
(name)
..
..
currently residing at (full address)
.
and (name)
..
.
..
currently residing at (full address)
to be
the joint Executors and Trustees of this my last Will and Testament[3].
BUT IF anyone or more of the above named persons should refuse to act, die
before me, or die before the trusts hereof have been fully performed, then I
appoint
(name)
..
. currently residing at (full
address)
..
to be the Executor of my Will and Testament in the place and
stead of anyone or moreof the above named persons,
and the expression my Trustee, used throughout include the Trustee for the
time being, whether original or substitutional.
5. I GIVE, DEVISE AND BEQUEATH all my real and