ISLAMIC WILL
“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahih al-Bukhari)
Why make an Islamic Will?
To fulfill an important religious duty
If you die without leaving a will you are deemed to have died ‘intestate’ and so your wealth will be distributed in accordance with the English rules on intestacy – which do not apply the same criteria as those laid down by the Shari’a.
It gives you peace of mind
Ensuring that your wishes are followed avoiding unnecessary family disputes after you have passed away.
If you have children under the age of 18, and you and your spouse should die, then the courts may take the decision as to who looks after them. By appointing legal guardians in your Will you can ensure that this doesn’t happen.
It makes financial sense
It’s a quick and simple process to make a Will and it’s relatively inexpensive too! Making a tax efficient Will can save on the amount of Inheritance Tax your family may have to pay after you die. In the event of dying intestate, your family will have to apply to the courts to administer your estate – a far more lengthy and costly process than if you had written a Will. It gives you the opportunity to help those less fortunate By leaving a gift in your Will to a charitable cause – it helps not only the beneficiaries, but can help you too – for sadaqa jariya (ongoing charity) is an action that continues to be rewarded after death.
How to make an Islamic Will?
- Value your assets
Before making a Will it is a good idea to make a list of everything that you own. This is known as your ‘estate and includes your home and its contents, your car and your savings – less your debts, such as unpaid dowry (mahr) and Zakah.
Where potentially large estates are involved and therefore inheritance liability could be considerable, steps should be taken to avoid it. There are various ways of doing this, including: making inter vivas gifts, preferably seven years before death and making a bequest of up to a third of the estate to a charity.
- Do you need a solicitor?
It is possible to make your own Will, but because it is a legal document, you are strongly recommended to seek professional advice, especially if you wish to make several specific bequests or if your financial and property affairs are complicated.
Remember: for your Will to be valid, the basic requirements of Bangladeshi law must be satisfied:
- 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.
- Decide on your funeral and burial arrangements
You should specify in your Will that you would like your funeral and burial rites to be carried out in accordance with the practices of Islam. These include:
- not having your dead body subjected to a routine post Morten examination because the Prophet Muhammad, may Allah bless him and grant him peace, said, “Breaking a dead man’s bone is like breaking it when he is alive.” (Sunan of Imam Abu Dawud) having your body released for burial immediately after death; having a Muslim burial;
- advising where and how your body is to be buried;
- if you do not wish for any of your organs to be used for medical research or organ replacement operations, then say so.
- You may wish to be buried abroad. You should remember that as well as being costly, the dead body is usually eviscerated, emptied of blood and filled with alcohol before being flown abroad. This may persuade you to stipulate burial in a Muslim cemetery in the Bangladesh instead.
- Decide what to leave to whom
After the payment of any taxes, debts, and funeral and administration expenses, up to a maximum of one third of your estate can be left to whomever you wish – this may include friends and family not entitled to inherit under Shari’a, as well as charities. If, when it comes to the division of the estate, it transpires that the bequests are more than a third, then either the executors have to reduce the bequests proportionately, or those entitled to fixed shares may (but do not have to) agree to accept a diminution in their shares.
You will need to specify that the remainder of the estate (which will amount to a minimum of two thirds) is to be distributed in fixed shares amongst your legal heirs in accordance with whichever madhhab you follow.
Specific items or sums of money can be specified as part of any particular relative’s share. If, when it comes to the division of the estate, it transpires that the value of any specified item(s) is more than the value of the share to which the relative is entitled then either the executors have to reduce or even ignore what has been specified, or the other relatives entitled to fixed shares may (but do not have to) agree to accept a diminution in their shares.
It is quite common for a testator to simply state that he or she wants all the estate to be divided amongst the surviving relatives in accordance with the Shari‘a without specifying any particular item for any particular relative.
As regards calculating the shares, the basic principles are these:
- 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.
This pecking order means that you may wish to make bequests out of your one third to distant relatives who may not otherwise inherit from you because they will be excluded by the closest relatives from automatically receiving shares.
It is prudent to have what is called a residuary clause dealing with what should happen to the estate if there are no surviving relatives – in which case the estate can be left to one or more charities (and if more than one, then in what proportions).
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 SAWAB, is the next best option. You may also wish to have a clause in which you pass on a last message to your loved ones.
- Choose your executor(s) wisely
You will need to choose up to four people to carry out the wishes expressed in your Will. Executors can also be beneficiaries in your Will. If you are choosing friends or relatives, make sure they are willing to accept what can be a lengthy and time consuming responsibility. If you are choosing lawyers, remember that they will probably expect to be paid for their services from your estate. The more complicated your affairs, the more prudent it is to choose a specialist lawyer.
If you intend to die like the Prophet, may Allah bless him and grant him peace, possessing nothing, then there will be no need for a lawyer!
If your executors do not know how to calculate the Qur’anic shares, they can either find an ‘alim who has this knowledge to assist them, or they can use the software at http://www.islamicsoftware.org/irth.html which does the calculation for you. This software is also useful if you would like to know, “Who would inherit what, if I were to die tomorrow?”
There is no combination of relatives for which it is not possible to calculate their Qur’anic shares – so a properly drafted Islamic Will should never fail for uncertainty.
- Choose a guardian for children
If it is possible that you may have children under the age of 18 when you die, you should appoint a guardian to look after them in the unlikely event of both you and your spouse dying while they are still minors. This point is particularly significant for those who have non-Muslim relatives and want their children to be brought up as Muslims.
There should also be a clause dealing with how any minors’ shares should be held on trust and invested and expended for the children’s maintenance, education or benefit. Most Muslims will want to stipulate that any investment made should not involve usury, since this was expressly forbidden by all of the Prophets, including Moses, Jesus and Muhammad, blessings and peace be on them.
- Choose your witnesses
Ideally, choose two trustworthy Muslim men to witness the signing of your Will. If this is not possible, then two non-Muslim men may be taken as witnesses. Women may also act as witnesses. Under Shari‘a, two women may act as witnesses instead of one man. For the purposes of English law one woman may act as a witness instead of one man.
Remember: anyone who will benefit from your Will cannot be taken as a witness. If this does happen, he or she will not be permitted to inherit from you.
- Keep your Will safe
Once you have made your Will and it has been signed and witnessed, store it in a safe place or with your solicitor or a trustworthy relative or friend. Make sure that your executor(s) are informed where the original Will is being kept and keep a photocopy for your own records.
- Keep your Will up-to-date
Review your Will on a regular basis, since changing circumstances – especially your marital situation (marriage, divorce or re-marriage) may affect its validity.
If there are significant changes of circumstance, it may become necessary to make a new Will, but for minor changes you may just require a Codicil – which makes an addition or alteration to your existing Will.
So if you’ve already made a Will, but would like, for example, to include a bequest to charity, the process is fairly straightforward – and can be drawn up by a solicitor.
Remember: Do not try to alter your Will by crossing out or adding words. If you do this, your Will may be rendered invalid in the eyes of the law, so if you then die without having made a new Will, it will be as if you had never made a Will at all.
In case of any query, you can call S M Rasheduzzaman directly on my mobile +8801713-014 261 or SAWAB office +8801880078533.
