The preparation of Islamic Wills in the UK is a fairly new concept namely due to the relatively young nature of the Muslim community. An Islamic Will consists of two main elements, a testamentary and fixed share portion which makes it differ from a normal Will under UK law.
6 November 2018
What is an Islamic Will?
An Islamic Will is a key obligation, but often misunderstood
“So the Messenger ﷺ has restricted the testamentary capacity of an individual to upto one-third of their estate. An individual may utilise some, all or none of this amount.”
What is an Islamic Will?
If you had asked me this question 15 or 20 years ago, I would have probably shrugged my shoulders and thought that the phrase itself was a misnomer. At the time to me Wills were something that non-Muslims wrote; usually rich, white, elderly non-Muslims, think Mr & Mrs Smith with their detached home in the suburbs and country cottage in Devon or Cornwall.
Little did I know.
To be fair however, I do not think that I was unique in this respect. Growing up, Wills were not really a part of my thinking. This is probably true for most young people whatever their background, but especially true for a young Muslim growing up in this country in the 1980s and onwards. Primarily the reason for this was that I did not know anyone who had a Will, not in my family, not amongst my friends and not amongst other acquaintances. Moreover, I had not really experienced death within the family (Alhamdullilah). For as with most Muslim communities within this country we were still new and relatively young as a family and community, the eldest members being in their late sixties, maybe seventies. Added to this was the fact that discourse within the Muslim community at the time never really touched on the subject of what should happen to the distribution of an estate when a Muslim passes away. For sure death was discussed, but the topics generally tended to revolve around the test of the grave, the Day of Judgement and the pleasures of Jannah and punishments of the fire. Together with this there was the process of mourning and the funeral of the deceased. Very little discussion however, focussed on the practicalities for those left behind. So, I remained blissfully unaware of the provisions of my religion in this regard and thought it a matter for the surviving family to decide as they saw fit.
Following the death of a loved-one, many of us have our first experience of dealing with the distribution of an estate.
Things started to change for me around fifteen years ago. By this time as with most people I had experienced the death of a close family member and the troubles and disturbances that entail from such a loss. I then became more religiously aware and learnt for the first time a few years later about the rules of inheritance in Islam. Being a part of I Will Solicitors obviously means that I am now in a position where I deal with these aspects on a daily basis and my exposure is more than most. I can see through my position how Muslims in general are becoming more aware of the rights and obligations of their religion upon them in preparing for death and facing upto the passing of a loved one. There does however remain a certain veil of uncertainty for many and I will therefore try to demystify some of this below.
Will v Wasiyyah
The first thing to make clear is that there is a difference between a Will in the UK (and elsewhere) and the concept of willing an estate in Islam known as the Wassiyah. Under UK law an individual has complete testamentary freedom. This means that any sane adult can decide exactly how all of their estate is distributed.
In Islam there is a famous hadith which restricts the testamentary capacity of an individual:
From Sa’d ibn Abi Waqqas: Allah’s Messenger (ﷺ) visited me in my illness which brought me near death in the year of Hajjat-ul-Wada’ (Farewell Pilgrimage). I said: Allah’s Messenger, you can well see the pain with which I am afflicted and I am a man possessing wealth, and there is none to inherit me except only one daughter. Should I give two-thirds of my property as Sadaqa ? He said: No. I said: Should I give half (of my property) as Sadaqa? He said: No. He (further) said: Give one-third (in charity) and that is quite enough. To leave your heirs rich is better than to leave them poor, begging from people. (Sahih Muslim; Book of Bequests)
So the Messenger ﷺ has restricted the testamentary capacity of an individual to upto one-third of their estate. An individual may utilise some, all or none of this amount. What then of the remaining portion and how can the Wasiyyah be utilised?
The Fixed Two-Thirds
Once an individual decides on how they wish to utilise their Wasiyyah, be that 1% of their estate, 10% or the full one-third for example; the remainder must pass in fixed shares. These rules of distribution are set out in three ayaahs of the Quran in Surah An-Nisa (the fourth Surah) – ayahs 11, 12 and 176, along with a number of Ahadith and rulings from the Companions of the Messenger ﷺ. These rules have all been ordered and codified by the scholars of early Islam into a complete system of devolution of an estate. The rules are so comprehensive that every individual’s circumstances, no matter how seemingly complex, will be catered for.
The Islamic rules of inheritance are perfectly balances and formed to take account of each family members, needs, rights and responsibilities.
Learning the rules of inheritance can seem a little daunting to the uninitiated. For those looking to learn more there are resources online, courses held by different organisations and you can also find videos prepared by me here teaching the rules from scratch. However, many will not have the time or inclination to learn such rules and for those who do not, we have also prepared an Islamic inheritance calculator App.
It should also be noted that although the rules can become complex, the vast majority of people will fall into a scenario which is straightforward to calculate and requires knowledge of just a handful of rules.
Utilising the Wasiyyah
We are often asked by clients how much they should leave as a Wasiyyah. The answer will depend largely on the individual’s circumstances. For example, when advising a newly married couple with young children, we usually suggest limiting the Wasiyyah to below 10% of the estate. As the hadith of the Prophet ﷺ makes clear, it is better to leave heirs well off and self-sufficient. On the other-hand a late middle aged or elderly couple can often leave more if their children are already financially stable and do not need the extra helping hand of a larger inheritance.
An additional option we often suggest is that a married couple give less on first death (between husband and wife) and more on second death. This assists with the greater up-front needs that are often present on the death of the first spouse, whilst ensuring that a good proportion of the estates ends up passing to charity, worthy causes or needy relatives after second death.
Another popular question is can a testator benefit their son/daughter/spouse etc with the one-third Wasiyyah. The answer to this is that an individual who receives by right (under the fixed rules of inheritance) cannot receive a share from the Wasiyyah. The only exception to this would be where the other affected beneficiaries posthumously agree to the same. The reasoning behind this should be clear – it avoids favouritism, circumventing the rules which have been mandated in a perfectly balanced manner and the disputes which inevitably follow from situations where one inheritor is favoured over another.
The Wasiyyah is a powerful means given by Allah to benefit those in need, such as through donations to charity; through taking care of circumstances unique to the individual, such as a family member in need and to recognise life-long relations, friendships and causes dear to each person. The greatest obligation of each of us in this matter however, revolves around our family and for this reason the Wasiyyah has been limited to one-third, in order to avoid the rupturing of the family unit through the, at times capricious, use of a Will.
An Islamic Will therefore is made up of two elements, the Wasiyyah and the fixed-share portion of inheritance. The fixed-share element is designed to fulfil the obligations of an individual to their closest family and the Wasiyyah can be used to benefit others and benefit wider community. When we prepare our Islamic Wills, we ensure that we discuss both elements with clients and incorporate wishes appropriate to each individual within their Will.