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Beyond an Islāmic Will

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

Over the past few decades, the drafting of Islāmic Wills in non-Islāmic states, particularly in common law jurisdictions, has gained increasing popularity among Muslims residing in these regions. However, the precise definition of an Islāmic Will remains subject to debate, although it generally aims to ensure the distribution of the decedent's estate in accordance with Sharīʿa law. This raises questions regarding the extent to which Sharīʿa allows the testator (propositus) to achieve this objective.

Drafting an Islāmic Will is relatively straightforward, yet it is surprising that many Muslims neglect to do so. In English law, the process does not necessitate the involvement of a solicitor, nor does it require any specific form of attestation; furthermore, it can be composed in any language. A simple statement such as, "I wish my estate after my death to be distributed according to my Islāmic faith," written in the native language of the testator, constitutes a valid Islāmic Will if properly executed according to the legal requirements of the jurisdiction. In England, this entails the testator and two adult witnesses signing the document simultaneously, without the necessity of including a date. While such a basic Islāmic Will may fulfil the objective of adhering to Sharīʿa principles, its effectiveness hinges on the executor's awareness of Islāmic law and their commitment to ensuring Shariah-compliant estate distribution, as failure to do so carries significant implications in the afterlife.

Alternatively, if the testator has unwavering trust in a close confidant, they may opt to bequeath their entire estate to that individual with instructions to distribute it in accordance with Sharīʿa. Although a direct bequest such as, "I leave the whole of my estate to my eldest son," may not inherently comply with Sharīʿa, if the eldest son is trustworthy and survives the testator, the objective of an Islāmic Will may still be achieved, despite the Will's surface non-compliance. Another commonly employed format, favoured by both Muslim and non-Muslim Will drafters, is the discretionary trust format, wherein the estate is placed in trust for the eldest son and eldest daughter to distribute in accordance with the testator's Islāmic faith. While this approach may not entirely adhere to Shariah, it can serve the purpose of an Islāmic Will by establishing a discretionary trust.

For affluent individuals with estates valued above the nil-rate band, Muslim solicitors often utilise a flexible life-interest trust, whereby the entire estate is placed in trust with the surviving spouse as a life tenant, thus deferring inheritance tax until the death of the surviving spouse. Although widely used, the Sharīʿa compliance of such Wills is subject to debate, with some scholars permitting them based on their fulfilment of the overarching objective of Islāmic estate planning, despite their temporary nature.

In my view, the most Sharīʿa-compliant method of drafting an Islāmic Will involves utilising a Will format rather than a trust format and incorporating a Schedule of Inheritance within the Will. Notable examples include Dr. Monzer Khaf's Schedule of Mawarith and Dr. A. Hussain's Schedule of Inheritance for Islāmic Wills (Hanafi fiqh), either of which can be integrated into an Islamic Will to mitigate legal challenges by providing clear guidelines for estate distribution based on Sharīʿa principles.

Regardless of the chosen format, there is no guarantee that an Islāmic Will ensures Sharīʿa-compliant estate distribution, as local laws may supersede its provisions under certain circumstances. To mitigate this risk, proactive planning is essential to ensure that the estate is accurately defined and all assets are appropriately documented for distribution in accordance with Sharīʿa. In today's digital age, where assets increasingly include non-probateable and non-tangible assets such as crypto assets, meticulous planning is required to safeguard their inheritance. This may involve transmitting asset details electronically and implementing secure measures to ensure accessibility by family members posthumously. Additionally, careful consideration of authentication methods and asset management strategies is crucial to mitigate potential risks and ensure effective estate planning in accordance with Sharīʿa principles.



Dr. A. Hussain, September 2021