بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

ISLĀMIC WILLS : LEGAL INSTRUMENTS USED IN ESTATE PLANNING

The transfer of wealth from one generation to the next is one of the most important aspects of human civil society which takes centre stage in just about all legal systems. It is particularly important within Islam where the power of an individual to distribute his wealth as he wishes upon his death is restricted by Divine law. Wealth can be transferred on death in a number of different ways, most commonly by a Will but there are recent trends that indicate that other methods of transferring wealth are increasingly being used. The methods used in Islamic Wills is very much dependent on one's definition of an Islamic Will. And whether one accepts the principle that means justify the ends thereby using methods that may not be strictly Shariah-compliant to achieve a desired goal.

The manner in which the estate of a deceased Muslim is distributed is governed by Divine law (Shariah) means not all estate planning instruments are available to Muslims. Over the last few decades, the idea of having an Islamic Will has become quite popular amongst Muslims living in the West in an effort to comply with the Divine commandments of Islamic succession law. However, the full set of estate planning options available have not been adequately explored by Muslim scholars. The idea of transferring all of one’s wealth into a Will trust upon death which was put forward in the U.K. about 20 years ago has taken root and the vast majority of solicitors and Will writers of Islamic Wills simply follow this well-trodden path rather than exploring other options. The cost of such a Trust-based Islamic Will varies in the U.K. from £tens-£thousands. In the vast majority of cases the two types of Will trusts that are used in Islamic Wills are:

1. Discretionary trust in which all the estate of the deceased is transferred into a trust and the trustees have the discretion as to how to distribute the estate amongst the beneficiaries.
2. (Flexible) Life interest trust in which the whole of the deceased’s estate is effectively transferred to the surviving spouse to mitigate any inheritance tax (IHT). The trustees are instructed to distribute the estate as per Islamic law to the heirs but this will be in the form of gifts from the surviving spouse. The timing of distributing the estate may raise concerns from a Shariah perspective. From a tax perspective, further estate planning will be required.

The Muslims in North America face the same problems as the Muslims in the U.K. and the legal system in most US states and Canadian provinces is similar to English law as far as succession law is concerned. The methods used by Muslims for estate planning in North America is quite different from U.K. Muslims. Many high net worth individuals in North America use a revocable living trust as the most popular form of estate planning and in terms of Islamic Wills Dr. Monzer Khaf’s Schedule of Mawarith can be used and has been advocated by Islamic organisations in North America such as ISNA (Islāmic Society of North America). Dr. Monzer Khaf’s Schedule of Mawarith gives details of how the inheritance should be divided in just about any possible scenario, so there is no need to set up a testamentary trust. Dr. Monzer Khaf’s Schedule of Mawarith is not based on any particular madhab but he follows the rulings of ḥadrat Zaid bin Thabit () as practiced by the traditional Malaki fiqh and also uses the doctrine of wassiyah wajiba, in favour of an orphaned grandchild, which has been incorporated into law in most Arab countries.

Dr. Abid Hussain has developed a similar Schedule of Inheritance based on the traditional Hanafi fiqh which can be similarly incorporated into an Islamic Will. This Schedule will again identify all the legal heirs of the deceased and give details of the actual inheritance share of each individual heir in just about any possible scenario.

One major advantage of having a Schedule of Inheritance in a Will is that because the heirs are identified and the shares of each heir 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. Both Dr. Monzer Kahf's Schedule of Mawarith and Dr. Abid Hussain Schedule of Inheritance (Hanafi fiqh) are about 30+ pages long. If the number of pages is a problem then English law does allow the doctrine of incorporation by reference, but when applying for probate the referenced document will need to be submitted.

Other instruments yet to be explored for estate planning include Will substitutes and Super Wills.

Simply writing an Islamic Will does not guarantee that your estate after your death will be distributed according to Shariah. The concept of the estate of the deceased in Common law (English law) is very different from the concept of the estate (tarika) of the deceased in Shariah. In English law, only probate assets form part of the estate of the deceased which is not so in Shariah, in which Will substitutes may also form part of the estate depending on the nature of the Will substitute and on the kind of legal "interest" the beneficiary has acquired in the property in question. From a Shariah perspective, the concept of Super Wills may be applicable to some types of Will substitutes. It is the responsibility of the propositus (testator) to determine what constitutes his estate and put in place a Shariah-compliant estate plan which is most likely to ensure that his estate upon his death is distributed according to Shaiah.

Will substitutes 

This is an emerging field in estate planning. There was an international conference on this subject which took place in March 2015 at Lady Margaret Hall (Oxford). Will substitutes also known as non-probate instruments are legal instruments that transfer property to beneficiaries at the donor's death. There are a lot of them, some are clearly not Shariah-compliant while others may have a role in estate planning for Muslims. Some forms of will substitutes are already currently in use by some Muslims but have not been sanctioned by Islamic scholars. This will be discussed in a separate article together with Super Wills.

Super Wills

Super Wills are another emerging field in estate planning which are only recognised in some jurisdictions. Super Wills can modify the disposition of non-probate instruments.

Dr. A. Hussain