Islamic Will Solicitors

A Will enables you to:

• choose who will get your property after your death;
• choose how your property will be divided among your various beneficiaries;
• give specific items of property to specific people;
• appoint someone you trust to administer your estate; and
• appoint a guardian for your minor children.

If you die without a Will, your property will be distributed by a court-appointed administrator according to statutory rules for “intestate succession.” Your property will be divided among your surviving spouse, children, and possibly other relatives in whatever manner the law of your jurisdiction specifies. You will not have a chance to give property to non-relatives or to exclude relatives. Additionally, if you have no relatives, your property will go to the state rather than to a friend or charity of your choice.

Yes, this is encouraged amongst Muslims whilst finalising your wishes in your Will. A Declaration of Faith is a document where you declare certain true facts, in particular:

• That there is nothing worthy of worship but the one, the merciful, the almighty Allah
• That He is the one God and has no partner
• That the prophet Muhammad (peace be upon him) was the true and last messenger of all prophets before Him
• That paradise is true and hell is true
• That the day of judgement is true and shall come, and where Allah shall resurrect the dead

Yes, your funeral and burial wishes can be specified in your Will, however, it is recommended that the funeral and burial wishes are discussed with the family beforehand, as the Will, sometimes, does not come to light until after the funeral takes places.

An Islamic Will is a legal document that is drafted to ensure that your assets are distributed in accordance with Islamic Sharia law, after your death. An Islamic Will requires careful drafting so that the Islamic Will is compliant with the law of this country as well as Islamic Sharia law.

For an Islamic Will to be valid it must be in writing and must comply with certain formalities. A Will only comes into force on your death.

An Islamic Will is drafted to ensure that your estate is to be dealt with in accordance with Islamic Sharia law, in particular specific shares to be distributed amongst specific family members.

It will also state who you have appointed to deal with the administration of your estate (your Executors) and ensures that your Executors have all the necessary powers they need to deal with the administration of your estate in accordance with Islamic law.

In England & Wales, anyone can make a Will providing you are 18 or over and of sound mind, memory and understanding.

An Islamic Will is not just for the elderly. It is also important for anyone who has children as you can then deal with who is to act as guardian of your minor children, should you die whilst they are below the age of 18. This will also prevent conflict amongst the family as to who is to act as guardian(s).

As a Muslim, you should make an Islamic Will to clearly state that you wish your estate to be distributed in accordance with Islamic Sharia law. Making an Islamic Will does not attract the inevitable, it merely ensures that you have your affairs in order and avoids loved ones having to face unnecessary legal and financial difficulties at a very difficult time.

‘Ibn Umar reported that the Messenger of Allah said: “It is a duty of a Muslim who has anything to bequeath not to let two nights pass without including it in his will”.’ Sahih al-Bukhari

As per the ‘Hadith’ above in Islam a Muslim with wealth is duty-bound to write a will under Sharia law. Muslims must ensure they have created a Sharia-compliant Islamic will, not simply a conventional will.

The Quran outlines that after all funeral expenses, all debts and obligations and any bequests to charity are made there are fixed inheritors.

Up to one third of your estate may be set aside and given to who you would like. You could decide to provide for someone not inheriting from the fixed amounts or a charitable organisation. If the latter then this can satisfy your responsibility for Sadaqah Jariyah.

The remaining estate is distributed according to Surah Al-Nisa verses 7-14. They are your closest family members. There are some exemptions, for instance, if a relative is a non-believer then they cannot inherit.

The shares are dependent on who is alive at the date of your death. The Quran states that ‘men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind.” (Quran 4:7). A son is entitled to double the share of a daughter. This is because males have a responsibility to maintain the financial security of the family. The male heirs are responsible for using the additional share to look after female heirs. Shares to parents are equal.

Your Executors will be the persons you wish to deal with the administration of your estate after your death. Your Executors (otherwise and in usual cases also your trustees) shall have the responsibility to ensure that your estate is distributed in accordance with Islamic law. Your beneficiaries can also be your Executors.

It is your Executors’ responsibility to:

• determine what property and other assets you own at the date of death, as well as your liabilities.
• arrange for current valuations of your personal possessions, property, investments any pension or insurance entitlements due including any debts and bills
• arrange your funeral and arrange for the payment
• establishing Income and Inheritance Taxes liabilities and completing the necessary tax returns for the Revenue
• completing and submitting the necessary probate forms and submitting these to the Probate Registry
• arrange the clearance and sale of any property (should this be required)
• collecting assets and paying any debts
• arrange to pay any legacies to legatees before the remainder of your estate is distributed in accordance with Islamic law
• compiling detailed accounts to give to the main beneficiaries, before distribution of the estate and in accordance with Islamic law
• in the case of children being beneficiaries, then the Trustees shall hold the monies on trust until required then distribute

Choose your Executor(s) carefully as this can determine how quickly and efficiently the administration of your estate is progressed.

Yes. Many people are deterred from making a Will because they do not want to think of their children without them. A Will can reflect a parent’s wishes and clearly state who will care for a child / children in the event of the death of the parents or guardians. Why leave this decision to the courts?

For your information, if a mother is not married to the child’s father, or the father’s name is not on the child’s birth certificate, then the mother would need to appoint the father as the first chosen guardian. If this is not done then according to the current law, the father would not have any automatic rights as guardian, if the mother died first.

You can amend or revoke your Will at any time before your death and there are some circumstances where a Will is automatically amended or revoked.

Upon divorce, a Will is altered insofar as any gift to a former spouse is rendered invalid.

Upon marriage (unless made in contemplation of the event), a Will is revoked.

When a new Will is written the old Will should be destroyed to avoid any confusion at a later date.

A codicil is an amendment to your Will. A codicil is used when you are happy with the contents of your Will but want to make minor changes. It leaves your original Will intact but makes specific changes, such as adding or deleting a beneficiary. A codicil is signed and witnessed (executed) in the same manner as a Will.

Yes, despite preparing a WilI, it is possible for certain persons to make a claim on your estate if it can be shown that at the time of your death your Will does not make reasonable provision for them, i.e. if an individual is disinherited or inadequately provided for. Any claim allowed, would be assessed by the Court.

If it was anticipated that such a claim could arise it might be advisable to leave a letter to your Executor setting out any special circumstances relevant to any possible claim.

The persons that may have a right to apply to the Court are:

• Any partner of yours, if you have lived as man and wife or civil partners for at least 2 years prior to your death
• Any former wife or civil partner provided he or she has not remarried or has entered into a subsequent civil partnership, or an order of the Court bars any claim
• Any child of yours
• Any person not being your own child who in the case of any marriage of yours was treated by you as a child of the family in relation to that marriage
• Any other person who immediately prior to your death was being maintained wholly or in part by you

If you feel that an individual may have a claim on your estate then we would recommend that you explain your thinking in a letter to the Executors in case your Will is challenged after your death.

If you have not or do not make a valid Islamic Will before your death, then the Intestacy Rules will apply. The law does not provide well for modern family situations and the Intestacy Rules are complicated, but generally your surviving spouse will benefit in precedence to anyone else. However, they may not receive all of your estate, depending on whether or not you have children. If you do not leave a surviving spouse or children then the intestacy rules set out who will benefit from your estate (depending on which of your relatives have survived you).

You may also end up having unnecessary and horrendously complicated statutory trusts of intestacy, which will add to the legal costs of administering your estate.

If you have not made a valid Will then the law also sets out who is allowed to administer your estate, and possibly not the personal representatives which you would have appointed.

If potential beneficiaries cannot be found then your estate will go to the Crown.

In relation to jointly owned assets, please note that such assets are usually held either as ‘Joint Tenants’ or ‘Tenants in Common’. If your assets are held as Joint Tenants then upon death the assets shall pass automatically to the survivor and not in accordance with your Islamic Will. If your assets are held as Tenants in Common then the position is such that your asset, or your share of that asset, is held by you and such asset or your share of such asset shall pass in accordance with your Islamic Will.

In relation to your property, if held jointly, we strongly suggest that you ensure that your property is held as ‘Tenants in Common’, so that the property or your share of your property can pass in accordance with your Islamic Will.

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-

• at home
• with a solicitor or accountant
• at a bank
• at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping.

If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to:

The Probate Department
The Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Tel: 020 7947 6000