Skip to main content

Do all British Muslims have an opportunity to write a legally valid Islamic Will?

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
 

The application of legal principles across different parts of Britain varies significantly. In England and Wales, the legal system operates under common law, while in Scotland, the legal system is more aligned with civil law traditions.

Under common law, which is practiced in regions such as England, Wales, most U.S. states, Canada, Australia, and New Zealand, the testamentary freedom of the testator (i.e., the individual making the Will) is largely unrestricted. This means that as long as the legal formalities associated with the execution of a Will (such as the signing process) are properly followed, the testator has considerable flexibility in determining how their estate is distributed.

Conversely, civil law, which governs Scotland and most European nations, imposes restrictions on testamentary powers. The extent of these restrictions can vary by country. In Scotland, for example, the spouse relict (surviving spouse) holds certain prior rights. If the spouse relict resided in property owned by the deceased, they are entitled to a house, a provision for furniture, and a cash amount. As of 1 February 2012, these entitlements are capped at £473,000 for a house, £29,000 for furniture, and £50,000 in cash if there are surviving children (or £89,000 if not), totaling up to £552,000.

Following prior rights, Scottish law enforces legal rights, which pertain only to movable assets and apply after the payment of any debts. Under the Law Reform (Parent and Child) (Scotland) Act 1986, these rights entitle the surviving spouse and any children of the deceased, legitimate or otherwise, to an automatic share of the estate. Legal rights do not require a court application and cannot be overridden by a Will.

The governing law generally depends on an individual’s domicile status. However, for immovable property located in another country, the law of the property's location prevails. Under Scots law prior and legal rights can override the provisions of an Islamic Will.

For Muslims living in Britain, the fundamental aim is to ensure the deceased's estate is distributed in accordance with Islamic principles. While a valid Islamic Will is important to facilitate this, it is not an absolute safeguard. The ultimate responsibility for ensuring the estate aligns with Islamic law rests with the surviving children and heirs. The consequences of failing to observe divine law are considered grave in Islamic teachings, emphasizing the need for vigilance and adherence to Sharia principles in estate distribution.

 

Dr. A. Hussain, 2024