Islamic Wills – How do they work? | Saracens Solicitors
Earlier this year the Law Society took the unusual step of publishing practice notes designed to assist English lawyers in preparing Shari’ah wills. True to form, this was met with a mixed response from the media and lawyers alike.
Inevitably, the internet and social media were soon awash with contrasting views on the subject, with some saying that Islamic principles were being ushered into English law via the back door.
It’s the hottest powder keg debate but where does English Law actually stand with regards the Shari’ah and Islamic wills in particular? Are they even valid under English law? If they are, why does there appear to be a problem?
What are the main differences between an Islamic Will and a conventional Will?
There are of course certain obvious differences such as a mandatory requirement to bury the deceased as opposed to cremation and the need to bury quickly.
The main difference however comes from the way that assets are distributed.
Unlike a conventional English will where there is an absolute freedom to dispose of your assets as you wish, under the Shari’ah also known as Islamic law, there are specific rules which apply to inheritance.
In simple terms, the beneficiaries (i.e. those that stand to inherit) from an Islamic will are prescribed by the Qur’an – the beneficiaries being made up of (a) legal heirs and (b) non legal heirs.
To simplify, under Islamic law, Muslims have the freedom subject to the provisions of the Qur’an, to dispose of one-third of their net estate to whomever they like. Those beneficiaries, receiving a share from one-third of the estate are known as ‘non-legal heirs’.
The remaining two thirds, however, must pass to individuals known as ‘legal heirs’. These are beneficiaries who have been pre-ordained by the Qur’an and cannot be denied this right. Those individuals and their proportion of inheritance are pre-determined by virtue of their relationship to the will maker. This is the most fundamental feature of an Islamic will and sets it apart from conventional wills.
An example may help to illustrate the point:-
Fatima is married and has two children, a boy and a girl. Both of her parents are alive and well; she also has two sisters and one brother.
Fatima states to her lawyer that she wishes for her estate to pass to her legal heirs only.
This means that the one third that could have otherwise passed to Fatima’s non legal heirs will instead be distributed amongst her legal heirs. (NB Fatima has the absolute freedom to decide with regards the one third portion and in this case has decided it will also go to her legal heirs).
Under Shari’ah law, Fatima’s estate would be divided amongst her legal heirs as follows:
- Husband gets 25% of the estate;
- Son gets 27.78% but daughter receives 13.88%;
- Mother and father get 16.67% each; but
- Fatima’s brother and sister would not receive anything.
The disparity between the male and female inheritance is often a red flag for critics, but the reason for it is that Muslim men are required to use their wealth to look after immediate female members within their family. Muslim women on the other hand have the life-long right to keep and spend their money however they please.
Because Fatima has a desire to bequeath her assets to her legal heirs only, the remaining one third would be split in exactly the same proportions.
This may not sit well with expectant siblings, aunts, uncles, grandparents and grandchildren. However, if Fatima changes her mind and wants her siblings for example to be provided for after her death, she could make a specific provision in her will. This would involve passing the remaining one third to non legal heirs (in this case her siblings) whilst two thirds would pass to her legal heirs.
Legal heirs can change during the course of a will maker’s lifetime. As time goes by, with deaths, births and marriages, beneficiaries under an Islamic will also continually change. However, there is no need for the will maker to change their will because of it. A proficient advisor will draft with reference to the Shari’ah as opposed specific individuals and ensure the document has sufficient mechanic to allow for it to evolve with the passing of time, without ever needing it to be changed.
If Fatima’s parents pass away before her, their entitlement to Fatima’s estate would cease and the estate would be divided between the remaining living legal heirs, i.e. her children and her husband. Once Fatima’s children marry and have their own children, or if her husband predeceases her, her legal heirs would change again.
In this context the relevant principle of Islamic jurisprudence (referred to as ‘fiqh’ in the Arabic language) is that those prescribed beneficiaries who morally fell under the deceased’s responsibility during his / her lifetime are those that inherit. Even the percentage that each beneficiary is entitled to receive is also based on the level of responsibility subsequently placed on them as a result of the deceased’s passing.
Why is there opposition to the Law Society’s guidance notes on Islamic Wills?
By issuing these notes, some have claimed that the Law Society is endorsing the manner in which assets can be distributed under an Islamic will. For example, males can receive a larger percentage share from the deceased’s estate than females.
Critics see this as an erosion of English values; that equality is at risk of being diluted by the implementation of Islamic principles. A more zealous viewpoint is that this is merely the beginning of what may ultimately result in changes being made to the law, creating a parallel legal system where different (Islamic) rules are applied in place of existing English law.
The Law Society’s notes do not actually change the current laws that deal with inheritance. The guidance has merely been published due to a growing demand from practitioners who are approached by Muslim clients with instructions to prepare an Islamic will.
Under English law, and indeed under many other Western legal systems, will makers can leave their estate to whomever they see fit. We’ve all heard stories of people leaving their entire estate to the local cats’ hospital or dogs’ home. This is known as ‘testamentary freedom’.
Should an individual not be allowed to dispose of an estate in any manner he / she chooses?
Everyone is free to pass on their estate in whatever manner they choose. Otherwise, the concept of testamentary freedom would not exist.
Nonetheless, there are a few limitations to this principle. A claim can be made against an estate under the Inheritance Act 1975 if someone is deemed to have been unfairly excluded from the deceased’s will. Also, a will can be challenged if its terms go against public policy. The latter appears to be the focal point of where the current controversy lies.
Islamic wills must contain a series of elements in order for it to be deemed compliant. Many of these are commonplace and therefore uncontested. It is the way in which only legal heirs can benefit from two thirds of the deceased’s estate that riles some detractors.
As stated above, a Muslim will maker’s beneficiaries cannot be determined until the point of death as it depends on who is alive and falls under the prescribed list of beneficiaries at the time. The Will must therefore be drafted in such a way so that certain classes of people are excluded if they are not deemed to be the Will maker’s responsibility. This can lead to, for example, illegitimate children being left out from a Will. But this would not prevent a claim from being made under the Inheritance Act.
The Courts generally find in favour of testamentary freedom but provide sufficient scope so that anyone who might suffer undue hardship after being excluded from a will has the ability to seek redress.
English law recognises a will maker’s freedom to distribute assets as he/she wishes. In fact, if all the beneficiaries agree, a will (i.e. a Shari’ah Will and even a conventional will) may be amended without the need for litigation, after the will maker has passed away. The controversy that has arisen from the Law Society’s decision to publish its practice note appears (in our opinion) to stem from perceived ‘legitimisation of discrimination’.
One can argue that if you impose restrictions on a person’s right to dispose of an estate, his / her testamentary freedom is undermined. This applies regardless of whether or not the Will is Islamic or conventional.
Perhaps we should look at whether or not the existing laws are fit for purpose. Should the Government look to limit testamentary freedom in order to avoid discrimination, maybe to ensure equality and wealth distribution amongst family members? Would that not then erode one’s testamentary freedom too or even render the notion of having a Will as obsolete?
Whether or not the Law Society’s practice notes legitimise discrimination is no doubt an endless debate. However, calls for the guidance to be removed from publication thus far have all been denied.
If you are interested in having a conventional or Islamic (Shari’ah) will made, call our specialist legal team today.