In the name of Allāh, Most Gracious, Most Merciful

What is an Islāmic (Sharīʿa compliant) Will?

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

An Islāmic or Sharīʿa compliant Will can be defined as a Will which uses Sharīʿa compliant methodologies to ensure the estate of the testator is distributed according to Sharīʿa in a non-Islāmic state under all circumstances without being dependent on any external factors, such as the good nature of the executor/ trustee, nor any instructions which are not part of the Will itself. A Will which violates the Sharīʿa in terms of methodology, but nevertheless tries to achieve the objective cannot, strictly speaking, be called a Sharīʿa compliant Will, although it may achieve the desired objective. However, under certain circumstances it may be necessary to employ such methodologies as the only viable or the most suitable option available. The methodology used will depend not just on local laws but equally important is the family circumstances, the nature of the family, their commitment to Islām and their relationship with the testator (Will writer).

Needless to say, an Islāmic Will must operate within the confines of the law of the land, and drafted in such a way that it will not fail under local succession statutes, otherwise it is of little practical use. There are a number of methods which has been designed for drafting an Islāmic Will:

1. Creation of a discretionary testamentary trust (also referred to as discretionary Will trust) accompanied by a letter of wishes is a method often used, particularly in the U.K., for drafting an Islāmic Will. Indeed many Will templates available on the internet use this format. The Will itself is usually a standard English Will (common law Will) to which the term Islāmic law is added. The advantage of this approach is that one does not need to know much about Islāmic law as the onus to apply the law is left to the discretion of the trustees. Using a discretionary testamentary trust may be objectionable from a Sharīʿa perspective as there is no parallel in Sharīʿa to the common law trust created by the Will, the nearest equivalent is the waqf (Islāmic endowment), and a testamentary waqf would be subject to the one-third rule in a similar manner to a bequest. A case may have been made for using the discretionary testamentary trust method in the past on the basis that it is not possible to list all scenarios of distribution of the estate as per Sharīʿa, but with the availability of schedules of inheritance, as mentioned below, this argument is now redundant. Proponents of the discretionary testamentary trust format in Islāmic Wills point out that this method allows scope for greater flexibiity for tax mitigation. This may well be true, but it should be stressed that the primary objective of a Sharīʿa compliant Will is not to try to mitigate tax liabilities due on the estate of the deceased, nor to try to protect the assets of the deceased from the rightful creditors, nor to try to protect the rights of the legal heirs at the risk of encroaching on the rights of others. The rights of the legal heirs are only attached to the part of the deceased estate after payment of all debts including any estate taxes. The primary objective of a of a Sharīʿa compliant Will, from the perspective of the Will writer, is that he/ she can stand in front of the Almighty on the Day of Judgment and say that they did their utmost to ensure their estate would be distributed according to the Law of the Almighty.

A further possible problem with the use of the discretionary testamentary trust is that the distribution of the estate relies on the interpretation of Islāmic law by the trustees since the letter of wishes is not legally enforceable. Avoiding the setting up of a discretionary testamentary trust and merely stating that the estate should be distributed according Islāmic law may lead to conflict due to the different schools of fiqh, even stating which school of fiqh is to be applied does not guarantee avoidnace of conflict but it will certainly reduced the chances of it occurring.

There may have been a time when the discretionary testamentary trust together with a letter of wishes was the only available method to Muslims but with the advent of detailed schedules of inheritance this is no longer the case, and indeed if the testamentary trust is akin to a testamentary waqf then setting up a testamentary trust is not the most Sharīʿa compliant method available.

2. Another method is in which the Will states which law is to applied in the execution of the Will. Stating that the estate must be distributed according to Islāmic law is unlikley  to suffice as Islāmic law is not codified and even stating a particluar school of jurisprudence (fiqh) such as the Ḥanafī fiqh may not be sufficient as the traditional inheritance laws have been modified by nearly all Islāmic states in the last 80 years or so, such that the Ḥanafī fiqh applied in terms of inheriatnce law in Egypt is different from the Ḥanafī fiqh applied in Pakistan giving different distribution of inheritance shares in certain circumstances. With the entry of the EU Regulation No 650/2012 introducing a professio juris mechanism, it allows for the possibility of a Muslim testator (the person writing the Will) to express in his Will the law of the country of his nationality to be applied to his future succession as discussed in the article, "Islāmic Will in non-Islāmic states."

3. In some Will templates the executor is required to seek expert advise from a stated Islāmic institution, some templates make it a condition to attain a certificate of inheritance calculations from such Islāmic institutions. A probelm may arise if the Islāmic institution is no longer in existence when the testaor dies, which may be 50 years or more in to the future.

4. Ideally an Islāmic will itself should contain sufficiently detailed instructions about the distribution of the estate, so that the estate of the deceased is distributed according to Islāmic law without requiring any reference to an external source. For this purpose two schedules of inheritance based on Islāmic law are currently availablen. notabley"Schedule of Mawarith©" produced by Dr. Monzer Kahf for use in North America and "Schedule of Inheritance for Islāmic Wills©" by Dr. Abid Hussain, which is a comprehensive schedule based on the traditional Ḥanafī fiqh. Such a schedule of inheritance can be incoporated in to an Islāmic Will, thereby proviidng details on how the estate is to be distributed amongst the heirs as per Sharīʿa; such a schedule of inheritance could also form part of a testamentary trust if under certain circumstances it is considered to be advantageous to have a trust structure within the Will. If a schedule of inheritance does form part of a testamentary trust then the trust is no longer discretionary.

If for tax purposes, or some other reason, all the beneficiaries agree to distribute the estate of the deceased in a manner different from that specified in the Will they may do so by enacting a deed of variation, effectively rewriting the Will after death. Similar legislation may be found in some other common law jurisdictions such as in Australia by way of a deed of family arrangement. The deceased, of course, is not liable for such changes from a theological persepctive.

Some Muslim solicitors offer their Muslim clients the option of an Islāmic (Sharīʿa compliant) Will or an English Will. Some of the Muslims clients opt for a standard English Will which clearly violates rules of Islāmic inheritance. 

From a religious perspective Muslims solicitors should not be engaging in such activities, offering a Muslim client a Will which clearly violates the law of the Almighty is akin to a Muslim vendor asking his Muslim customer if he wishes to buy a harām product or a similar halāl product. When there is an option between something which is halāl and something which is clearly harām, then for a Muslim, it is obligatory to opt for the halāl option. 

Muslim solicitors selling non-Islāmic Wills to a Muslim could be considered to be knowingly selling a product which is clearly harmful to their client from a religious perspective, the effect of which will affect successive generations and the akhira of their client as well their own. There is also the question of the legal status, from a Sharīʿa perspective, of earnings attained from such a practice. 

 

Also see the article entitled: "Islāmic Will in non-Islāmic states"