Islamic Wills

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What does Islam say about wills?

“It is prescribed, when death approaches any of you, if he leaves wealth that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah-fearing.” (Surah Al-Baqarah 2:180).

“It is not permissible for any Muslim who has something to will, to stay for two nights without having his last will and testament written and kept ready with him.” (Sahih Al-Bukhari, Volume 4: Book 55, Chapter 1).

Narrated by Sa’d bin Abi Waqqas : “The Prophet (saw) came visiting me while I was sick in Makkah. I said, “O Allah’s Messenger! May I will all my property (in charity)?” He said, “No.” I said, “Then may I will half of it?” He said, “No.” I said, “One-third?” He said, “Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them (poor) begging others, and whatever you spend for Allah’s sake will be considered as a charitable deed, even the handful of food you put in your wife’s mouth…” At the time, Sa’d had only one daughter.

What is an Islamic will ?

An Islamic shariah will also known as a ‘wasiyyah’ is a legal document in which a person making the will (also known as a testator) makes a disposition of their assets to be executed upon death. In order to make an islamic will, however, you need to know what you are permitted to gift, bequest and what is the mandatory inheritance prescribed within sharia law (‘faraid’).

What is the difference between Hibah, Faraid and Wasiyyah?

There are three concepts that are particularly relevant when considering Islamic wills; gifts (‘hibah’); inheritance (‘mirath’ or ‘faraid’) or bequests (‘wasiyyah’). It is surprising the level of arguments and fallouts that can happen over the subject of inheritance and the disruption it causes to a family and quite often it can boil down to understanding the difference between these three concepts.

Firstly, gifts (‘hibah’) are precisely this..gifts. In Islam, a person is permitted to gift their assets to whomever they want during their lifetime, however, for the gift to be truly regarded as a gift, cannot have conditions attached to it. The ownership of the gift must be transferred over to the person to whom they are gifting immediately.

Secondly, inheritance (‘faraid’ or ‘mirath’) is the fixed inheritance as prescribed by shariah law and these fixed shares cannot be changed under any circumstances. The underpinning principle is that Allah is the ultimate owner of everything that we own and all our wealth.

‘To Allah belongs all that is in the heaven and all that is in the earth’ (Surah Baqarah, 284). ‘And spend from that which Allah has made you trustees’ (Hadid:7)

It is considered from these ayats from the Quran, that in life we are only ‘trustees’ of the wealth that we own during our lifetime. Allah has prescribed set shares for the inheritors contained in Surah Nisa. When a person passes away, the inheritors become shared owners of everything that is left behind. This is different to UK law, where the property vests into a trust and is managed by an executor until it is distributed to the beneficiaries (the people who will inherit).

Finally, bequests (‘wasiyyah’) is an intention of the deceased to gift part of their property / assets upon their death hence why the will is known as ‘wasiyyah’. In reality,  a Muslim only has a free choice to gift up to ⅓ of their assets to another however there are conditions upon this as seen below.

It is narrated on the authority of ‘Amr ibn Khaarijah that the Prophet, sallallahu ‘alayhi wa sallam, delivered a Khutbah (sermon) while riding his she-camel, and ‘Amr heard him say, “Allah has given everyone who is entitled his rights, so there shall be no will for an heir.” [At-Tirmidhi: Hasan Saheeh]

This has been interpreted by scholars to mean that the ⅓ cannot be gifted to a person already inheriting as a means to usurp the amount that is left to direct inheritors unless all the other heirs consent to this bequest. The understanding behind this ⅓ is that a person can leave this amount to charity or those who are not already inheriting from them.

In order to understand all of the above concepts, it is important to look at some examples.

Consider these …

• A father says to his son, ‘I gift you my house but you must let me live in it’, he then transfers the legal ownership to him but continues to live in it during his lifetime. Is this a gift?
• A mother says (a common example), ‘I gift my gold to my daughter when I die’. Is this a gift ?

The answer is no. Using legal terminology, this is known as a gift with a benefit. In Islamic terms, this property has not been gifted as it has not properly exchanged hands. Any conditions attached to a gift are not actual gifts for Islamic purposes and therefore the asset should pass in accordance with shariah principles. Note interestingly, this is the same for the UK tax system; a gift with benefit is regarded as not a gift for tax purposes and brought back into the estate of the deceased at death.

Now consider this..

• A father has one son and three daughters. He wishes to leave ⅓ of his assets to his daughters in order to make sure that upon his death that all his children receive a more equal share rather than the lesser share prescribed to her under Islamic inheritance.

Under sharia, he would not be permitted to leave the ⅓ share to his daughters as they are already inheritors. He is able to gift his daughters during his lifetime anything extra and as long as the gift actually passes ownership and given to the daughters, this would be accepted as a gift.

In the above examples of gifts, if a mother wanted to leave the gold to her daughter, she would have to make that gift whilst she was alive and not expect anything in return or if she wished to gift this in death, the value of that gold could be taken off the daughter’s share of the mandatory inheritance.

It is important, as a Muslim, to know the difference between all these concepts as understandably this can cause rifts between family members when it comes to inheritance. If followed properly, Islamic shariah should result in less family dispute because ultimately the person does not make decisions as to who should inherit ⅔ of his estate upon his death but it is what Allah has ordained regarding inheritance, with a freedom of the person leaving ⅓ to whomever he or she wills, with the restrictions in place as discussed above to avoid disputes..

What’s the order of devolving the estate according to shariah law?

Once a person has died, the order of the devolving of the estate is as follows;

• Burial expenses
• Repayment of debts including unpaid zakat and other debts including mortgage
• Bequests – only for up to ⅓ of the estate
• Inheritance

In Islamic Sharia therefore it is important to the person to make written records of anyone and everyone he or she owes money to and in addition, any monies that is owing to them so that Islamic inheritance can be allocated properly. This is often done with a separate letter of wishes which can be written and kept with the will.

What are the shares ? The heirs and the shares..(no, I don’t mean the Royal novel)..

There are three types of inheritors in islam;

Category 1: Those who are fixed by the Quran are known as fixed heirs. Those heirs whose shares are fixed mostly by the quran this category is known as the Ashab al Furid (the people of shares)

Category 2: Those heirs who have no fixed shares but take the residue after the eligible heirs have taken their shares; this category is known as Al-Asabat

Category 3: Those heirs other than those above; they are known as the Dhawu l’Awarm

In most cases, the inheritors will only be from category 1, these heirs are permanent inheritors who are always entitled to a share (subject to some conditions not covered within this article).

The inheritors from category 2 are considered non permanent inheritors whose shares are dependent upon whether and who are the primary inheritors from category 1, the rules around this can become quite complicated but in essence, if there is a father or a son, then persons from category 2 do not inherit. Persons from category 3 do not inherit unless there is no one from category 1 and 2.

In relation to Adhab ul Furud, these heirs are : Mother, Father, Wife, Husband, Daughter, and Son. Their shares are dependent upon who is alive at the time of the person’s death. The shares can be as follows:

Husband ½ or ¼ net estate

Wife ¼ or ⅛

Father ⅙ or ⅙ and the remainder or the remainder

Mother ⅓ or ⅙

Daughter ½ or ⅔ or then half of what the son takes

The son is a residual inheritor and entitled to the most and therefore his share is twice what the daughter.

The above shares are an approximation only, the real shares are determined by the exact makeup of the family and who is alive at the time of death. It is therefore important not to strictly use the above as a means for calculating islamic inheritance shares.

I will not cover details of al-ashabat, dhawu l’awarm in this article. The law of inheritance can become complicated and individual advice needs to be sought in the event of a need for clarification.

So what can you include in the will..

• Your belief in Allah – declaration of faith in Allah
• Any shortcomings in worship – if there have been any unpaid fidya, according to some madhabs, this should form part of the ⅓
• Any other charitable wishes – this forms up to ⅓ of the estate
• Declaration of all outstanding debts ( it is recommended that a separate letter of wishes is kept with the will so that executors (people dealing with the will) are aware of the debts and no dispute is caused by this.
• Declaration of all receivables/assets
• Executors (person or people you nominate

Conclusion…

Making an Islamic will in accordance with shariah is strongly recommended for any Muslim especially when one is living in the UK. In the UK, if a person dies without a will, then intestacy rules dictate how the estate is distributed between the beneficiaries and shares are left to individuals in accordance with the UK laws. This means that their estate is left against the Islamic shariah laws of inheritance, a final act which can be considered as disobedience to Allah.

ABA Solicitors specialises in preparing Islamic wills. We are well-versed in the legal and religious requirements for this type of will, and can help ensure that your final wishes are carried out in accordance with Islamic law. If you are in need of an Islamic will, please don’t hesitate to contact us at 0208 767 9090.

Jazakhallah Khayr and thanks to Shaykh Ibrahim ibn Muhammad, Siblings of Ilm for his course which provided useful guidance on this subject and inspiration for this article.