بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
In 2005, I embarked on a journey from Riyadh to the UK, drawn by the allure of a conference on Islāmic finance organised by 1st Ethical Charitable Trust at the esteemed Markfield Institute. Among the slated presentations was one on Islāmic inheritance and Wills, a topic that piqued my interest given the recent publication of my first book on Islāmic inheritance law by Darussalaam earlier that year.
However, the presentation, delivered by a tax accountant, did not quite meet my expectations. Instead of delving into the intricacies of Islāmic inheritance law and how these could be incorporated into a valid Islāmic Will, the focus seemed to veer towards advocating for the establishment of trusts to minimize inheritance tax, including the setting up of a testamentary trust for Islāmic Wills. While this approach may have its merits in certain contexts, it failed to address the core principles of Islāmic inheritance.
One particular notion that lingered from the presentation was the belief that specifying exact percentages for each beneficiary in a Will was essential and that the solution lay in placing all assets into a Will trust, thereby bypassing the complexities of inheritance distribution. However, my own experience, having drafted an Islāmic Will for my mother years prior without resorting to a trust, demonstrated otherwise. The Will was successfully probated at the High Court, and the inheritance was distributed in accordance with Sharīʿa law.
When challenged on this point, the presenter posed the question, "How else can you do it?" It would be a decade before I would offer an answer to that question. In 2015, I published a Schedule of Inheritance for Islāmic Wills, detailing precise inheritance shares for each heir and delineating the actual heirs up to four generations above and below. This schedule negated the need for a Will trust, debunking the myth that it was impossible to stipulate exact inheritance entitlements for beneficiaries.
But why did I undertake this endeavour, especially when others had not ventured into this territory before? Islāmic inheritance law is widely regarded as one of the most challenging subjects within Islāmic jurisprudence. Yet, it's not entirely accurate to claim that no one has tackled it before. Dr. Monzer Kahf, during his time in the U.S.A., had developed a Schedule of Inheritance for American Muslims, albeit without allegiance to a specific school of fiqh.
Notably, Dr. Kahf's schedule diverged from traditional practices, allocating inheritance shares to surviving spouses based on the views of Hadrat Zaid bin Thabit (
) and the Malaki fiqh tradition. However, this approach, although practised in places like Zanzibar, deviated from mainstream Islāmic inheritance practices.
Recognizing the predominance of Hanafi fiqh among Muslims in the U.K., I endeavoured to create a Schedule of Inheritance grounded in the Hanafi tradition.
The advantages of using a Schedule of Inheritance in an Islāmic Will are manifold. By clearly stipulating the shares of each heir, it reduces the likelihood of disputes and disagreements among trustees, streamlining the distribution process. Even within a testamentary trust format, incorporating a Schedule of Inheritance can mitigate potential challenges.
In conclusion, while the development of a Schedule of Inheritance presented its challenges, it offered a viable alternative to the establishment of Will trusts. For those interested in drafting an Islāmic Will based on Hanafi fiqh, please register and you can draft a detailed customised free online.
A. Hussain, October 2020