In the name of Allāh, Most Gracious, Most Merciful

BEYOND AN ISLAMIC WILL

BEYOND AN ISLAMIC WILL

 

Over the last couple of decades writing an Islamic Will in non-Islamic states, particularly in common law countries, has become increasingly popular amongst Muslims residing in these countries. What exactly is an Islamic Will is open to debate although most people will agree that its objective is to ensure that the decedents’ s estate is distributed according to Sharīʿa. The question really arises what degree of latitude Sharīʿa allows the propositus to fulfil this objective.

An Islamic Will is so easy to write, it amazes me that so many Muslims fail to do so. In English law there is no need for a solicitor, no form of attestation is required and it can be written in any language. A phrase such as, “I wish my estate after my death to be distributed according to my Islamic faith,” written in the native language of the Will writer constitutes a valid Islamic Will if properly signed according to the law of the land. In England that means the Will must be signed by the Will writer and two adult witnesses in one sitting, i.e. all 3 individuals sign at the same time. Even a date is not necessary. Such a simple Islamic Will may achieve the objective of an Islamic Will providing the person who manages the estate (the executor) is cognizant of Islamic law and God-fearing enough to ensure that the estate is indeed distributed according to Sharīʿa, for not doing so has serious implications in the Hereafter.

If the propositus has complete faith in someone close he may choose to leave the whole of his estate to that individual and instruct him to distribute the whole estate according to Sharīʿa. Thus, “I leave the whole of my estate to my eldest son,” is, of course, not a Sharīʿa compliant Will but if the eldest son is trustworthy and survives the father the objective of an Islamic Will can be achieved even though on the surface the Will in itself cannot be said to be Sharīʿa-compliant. The most common format used by both Muslim and non-Muslim Will writers and solicitors in its bare form is to use a discretionary trust format Will thus, “I leave the whole of my estate on trust to my eldest son and eldest daughter to be distributed it according to my Islamic faith.” This could be argued as not being wholly Sharīʿa compliant but again the objective of an Islamic Will can be achieved by creating such a discretionary trust. If the propositus is rich with an estate valued at above the nil-rate band (£325,000) the whole estate is placed into a (flexible) life-interest trust  with the serving spouse being a life tenant so that no IHT needs to be paid until the surviving spouse dies. This is the standard format used by Muslim solicitors. Are such Wills Sharīʿa-compliant? Some scholars have allowed them as such Wills fulfil the objective of an Islamic Will and the arrangement is temporary.

In my opinion, the most Sharīʿa compliant method of drafting an Islamic Will is to use a Will format as opposed to a trust format and incorporate a Schedule of inheritance within the Will. Two such Schedules are available notably, Dr. Monzer Khaf’s Schedule of Mawarith and Dr. A. Hussain's Schedule of Inheritance for Islamic Wills (Hanafi fiqh), either of these two can be incorporated into an Islamic Will and the latter is available on this website. Incorporating a Schedule of inheritance reduces the chances of a legal challenge as it removes virtually all possible uncertainties which could arise in the interpretation of Sharīʿa applied to inheritance.

Whatever type of Islamic Will you write in whatever format there is no guarantee that your estate will be distributed according to Sharīʿa. Any Islamic Will can be defeated by local law under certain circumstances. To avoid this happening one has to plan ahead so that such a situation does not arise, which brings me to the main purpose of writing this article. In many cases, our finances have become so complicated that merely writing an Islamic Will, in whatever format, may not be enough to ensure that your estate is distributed according to Sharīʿa. An increasing challenge is to ascertain what the estate actually is. The definition of an estate, in the context of inheritance, of the deceased is different in English law compared to Sharīʿa. In English law only assets that are probateable constitute the estate, assets out with the probate process are seen as Will substitutes so do not form part of the Will unless the jurisdiction recognises super Wills which is not the case in England. From a Sharīʿa perspective, everything the propositus owns in reality, even if the asset is not nominally in his name or a nominee has been appointed in line with local law, such assets will form part of the estate of the deceased.

In this day and age not only may the deceased leave behind non-probateable assets but also non-tangible assets including crypto assets. Determining the actual true value of an estate can be a real challenge. The onus is on the propositus to leave sufficient details for his heirs to be able to trace all his or her assets to ensure that the estate is distributed according to Sharīʿa. It is important not to document the details of your assets in your Will because that effectively becomes accessible to the public unless you use a trust format Will. The details of your assets should be communicated in some other form. Traditionally a letter of wishes or something similar which is not a legal document has been used. I would advocate transmitting this information electronically because of the complexity of finances in this day and age. It is important that your family, after your death, can access your mobile phone, all your email addresses, bank accounts (which may be online only), and any digital wallets, hardware wallets, exchanges where you may hold assets, etc. It is your duty to put the right measures in place so all your assets can be accessed after your death. With 2-factor authentication (2FA) becoming the norm access to mobile phone and email addresses is essential. This is where planning ahead comes in.

You must understand the pros and cons of any system you use.  For 2FA not all authenticators are the same, you can be locked out of your own account if you are not careful. Microsoft authenticator has a cloud backup, Google authenticator does no but it can be imported, importing an authenticator app to a new device may be problematic. You can set up an authenticator for the same account on different devices and even in some password managers, or save the codes for each account in a secure file. The 6 digit codes generated every 30 seconds for a particular account are identical irrelevant of which authenticator you use.

More and more Muslims are acquiring digital assets including crypto assets and these require a private key to assess them. If your family cannot assess your digital assets these may be lost forever, this is increasingly happening. Note that only assets which are halal to own from a Sharīʿa perspective can be inherited. How should one leave the details of all his or hers digital assets for their heirs? Your family should be able to assess all your accounts. As passwords are becoming increasingly complicated, the need to use a different password for each login and the need to change some passwords now and then, one solution may be to use an appropriate password manager where each family member owns an individual vault and there is a shared family vault. At an appropriate time in your life you can simply transfer the details of all logins, secure notes, private keys, seed phrases for digital wallets etc from your personal vault to the shared family vault. In this way, all your log in details with the up-to-date passwords are shared with your family. Some password managers have the option of adding one-time passwords (2FA), this is a very useful feature if you cannot access your phone. Other options for crypto assets is to use a cryptocurrency bank or store your crypto assets in an online non-custodial multi-signature wallet which allows signing up for a cryptocurrency inheritance solution. Plan early, simply writing an Islamic Will even if it costs thousands of pounds may not be enough.

Dr. A. Hussain, Sep. 2021