بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
Some Muslims may be inclined or advised to incorporate a non-contest clause, also known as a “penalty clause,” when drafting their Islāmic Will. The perceived advantages of including such a clause typically revolve around the desire to forestall disputes within the family after one's demise, thereby averting potential litigation and safeguarding the privacy of the Will's contents.
A non-contest clause aims to instill fear in beneficiaries of losing their inheritance if they challenge the Will in court. Typically, such a clause stipulates that a beneficiary will forfeit their inheritance upon the testator's death if they attempt to contest the Will.
However, including a non-contest clause in an Islāmic Will can lead to unintended consequences. Potential heirs who may contest an Islāmic Will in the UK include the widow (entitled to 1/8 of the inheritance in the presence of a child or agnatic grandchild), a daughter (who inherits half the share of a son), or an adopted child (who inherits nothing). Each of these individuals could potentially challenge an Islāmic Will in an English court under The Inheritance (Provision for Family and Dependants) Act 1975.
Challenging an Islāmic Will from its inception could yield unintended outcomes that contravene the principles of Shariah law. For instance, if the widow contests the Will due to her 1/8 inheritance share and her challenge results in an increased share by the court or her exclusion from the Will altogether, the outcome may not align with Shariah principles.
Therefore, it is advisable for Muslims not to challenge an Islāmic Will that is compliant with Shariah principles. Instead, the testator should draft their Will in a manner that minimizes the likelihood of it being contested.
It is worth noting that in some jurisdictions, non-contest clauses are not legally enforceable.
A. Hussain