Over the last few months our solicitors have been talking to different communities about making wills. One of our most successful talks covered the subject of Islamic wills and how to ensure your estate is looked after under Sharia Law. Therefore we thought we would pen a quick blog on the subject, covering the key points.
Why make an Islamic Will?
It was said by the Muslim scholar Muhammad al-Bukhari that “it is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it”.
It is important to note that if you are a Muslim and you die without leaving a will, you are deemed to have died ‘intestate’. This means that your estate will be distributed according to the Scottish rules on intestacy – which do not match up with the rules laid down by the Sharia.
Making a will is inexpensive and could save your loved ones time, money and stress in the event of your death.
How to Make an Islamic Will
The first step in creating a will is to make a list of everything you own. This would include everything from your house to your savings. If you have a large estate, there are special ways to avoid inheritance tax liability which we can discuss with you.
It is important then to find a solicitor. It is possible to write your own will, but as it is a legal document we would highly advise that you seek expert advice from our team of solicitors.
A valid will must comply with the following basic requirements:
- You must be at least 18 years old.
- You must be of sound mind.
- Your Will must be in writing.
- You must identify yourself as the author of the Will.
- You should state that it is your last Will – and that any previous Wills and Codicils are revoked.
- The Will must be dated and signed by you in the presence of and attested by two witnesses who are neither a spouse nor a beneficiary under the Will.
Your Will should include details of your funeral arrangements, specifically that you wish to have an Islamic burial. This means, among other things, that you would not want a post-mortem examination.
Division of the Estate
Up to a maximum of one third of your estate can be left to who you wish – this may include friends and family not entitled to inherit under Sharia Law. The remainder of your estate will be split amongst your legal heirs.
When it comes to calculating the shares, the basic principles are:
- The closest relatives (husband, wife, son daughter, father, and mother) will always inherit a share and will always have precedence over and exclude more distant relatives.
- In the absence of the closest relatives, the more distant relatives (such as grandparents and grandchildren, for example) will then be entitled to inherit fixed shares.
In the case that there are no surviving relatives, Wills can include a residuary clause which bequeaths everything to one or more charities. Under Shari‘a, your estate would go to the bayt al-mal to be spent on social welfare, but until your community has a bayt al-mal, a charity concerned with social welfare, like Islamic Aid, is the next best option.
Choosing the right executors is important, as the process of dividing your estate can be lengthy. The more complicated your affairs, the more important it is to have the help of a solicitor. A properly drafted Islamic Will involves the calculating of Qu’ranic shares.
Choosing a Guardian
If you have children under 18 when you die and no spouse, it is vital to choose a guardian to look after them. This is particularly important if you have non-Muslim relatives but want your children to be brought up Muslim.
Anybody trustworthy may act as a witness to the signing of your will. Ideally, under Sharia law, it should be two upstanding Muslim men.
Keep Your Will Safe and Up-to-Date
Once you have created your will it is important to keep it in a safe place, this is often with your solicitor. Let your executors know where the will is being kept and keep a copy for your records.
If your circumstances change it is vital to update your will. This is most pertinent when your marital status changes as a will can easily become invalid. If the changes in your life are les substantial you may only require a Codicil – which makes a small amendment to your will. Under no circumstances try to change your will yourself as this can render it invalid.
Source: Islamic Aid
If you have any further questions do not hesitate to contact firstname.lastname@example.org or any member of our personal legal team on 0131 555 5800.