بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

DEVELOPING A SCHEDULE OF INHERITANCE FOR ISLĀMIC WILLS

In 2005 I flew all the way from Riyadh to the UK to attend a conference on Islāmic finance organised by 1^st Ethical Charitable Trust at the Markfield Institute. One of the presentations was scheduled to be on Islāmic inheritance and Wills which I thought may be of interest to me as earlier in the year my first book on Islāmic inheritance law had been published by Darussalaam. As it turned out I did not find the presentation on the subject of Islāmic inheritance and Wills particularly informative, the focus of the presentation seemed to be towards encouraging Muslims to set up trusts to minimise inheritance tax including setting up a testamentary trust for the purposes of an Islāmic Will. This may have been partly due to the fact that the presentation was delivered by a tax accountant.  A number of points made in the presentation stuck in my mind. The notion that it is necessary to stipulate the exact percentages due to each of the beneficiaries (heirs) in a Will, and since that is impossible to predict, the way to resolve the issue was to place all the assets into a Will trust (also referred to as testamentary trust). I did object to this line of thinking with the presenter but to no avail. I had in fact written an Islāmic Will for my mother without using a trust a few years earlier which was probated at the Manchester High Court without any problem and the inheritance distributed according to Sharīʿa.

The presenter’s question to me was, “How else can you do it?” It would be another 10 years before I would get around to publishing a Schedule of Inheritance for Islāmic Wills to answer that question which indeed does give details of exact inheritance shares for each heir as well as determining the actual heirs, up to four generations above and four generations below. So there is no need to set up a Will (testamentary) trust on the pretext that is not possible to stipulate the exact inheritance entitlement due to each of the beneficiaries.

So why did I bother? Why had nobody else done it before?

Islāmic inheritance law is considered to be one of the most difficult subjects in Islāmic law and developing a schedule of inheritance is incredibly difficult but it’s not entirely true to say that nobody had done it ever before. Because Dr. Monzer Kahf, when he was residing in the U.S.A., had done a Schedule of Inheritance for the U.S. Muslims but his Schedule was not based on a particular school of fiqh. One important thing to note is that according to Dr. Monzer Kahf’s Schedule of Inheritance if the only surviving heir is the husband or wife then the inheritance allocated to them would be one-half or one-quarter respectively, the remainder would be given to ISNA (Islāmic Society of North America) as a waqf to be used for ISNA activities. This ruling is based on the view of ḥadrat Zaid bin Thabit () and practised by the traditional Malaki fiqh but not practised in any Islāmic country nowadays expect perhaps in Zanzibar. Furthermore, Dr. Monzer Kahf’s Schedule also uses the doctrine of wassiyah wajiba, in favour of an orphaned grandchild, which has been incorporated into law in most Arab countries, initially adopted by Sudan in 1945, but not found in any of the traditional 4 Sunni schools of fiqh.

Since the vast majority of Muslims in the U.K. are from the Indian sub-continent, following the Ḥanafī fiqh, my aim was to develop a Schedule of Inheritance based on the Ḥanafī fiqh.

What are the advantages of using a Schedule of Inheritance in an Islāmic Will? Are there any disadvantages in using a Will (testamentary) trust?

Technically speaking once the assets of the deceased are transferred by the executors of the Will into a trust, inheritance ends. The trust is a legal entity which can enter into financial transactions. Transferring all the net assets into a trust, thereby violating the one-third rule, may raise a question to two. Sharīʿa may tolerate this temporary arrangement if is the best option available and there are no Sharīʿa-compliant options available.

One major advantage of having of a Schedule of Inheritance in a Will is that because the shares of each heir are clearly stated and not left to the discretion of the trustees there are probably fewer chances of a challenge/ dispute arising and the question of disagreement between the trustees does not arise, neither is there the option for the trustees to cause any unnecessary delays in distributing the inheritance. Should a trust format for a Will be considered to be a better option than a Will format even then a Schedule of Inheritance can be incorporated into the Will (testamentary) trust thereby reducing the chances of a challenge/ dispute arising.

Should you wish to write a free Islāmic Will online using a Schedule of Inheritance (Ḥanafī fiqh) please follow this link.

Dr. A. Hussain,

October 2020