A Guide To Sharia Compliant Wills

As with every other aspect of life, Islam has specific laws for the disposal of one’s property after death. The Holy Quran sets out the principles of the “Islamic Law of Inheritance” making it incumbent on every Muslim to make a will (a wasiyyah) which disposes of his or her property upon death in accordance with the laws of Sharia. The interaction of Sharia inheritance in conjunction with the English law of succession can be arduous not just for the laymen but for experts too. As a result, Muslims with a connection to the UK continue to face challenges in making a will under the law of the land that allows them to comply with Sharia.

The Interaction Of Sharia And English Law 

English law does not recognise the Sharia rules on inheritance as a separate body of rules and drafting a Will that simply stipulates that Sharia applies is ineffective and is therefore likely to create an intestacy. Sharia is also variable between different communities (such as the Shia and the Sunni community) and so the meaning and effect of the principles cannot easily be ascertained under English law.

Background 

Meaning of Sharia 

Sharia is the expression used to denote the principles of the law applicable under the Muslim religion. It is based on the Holy Quran, the Sunnah and Hadith as well as the rulings of Islamic scholars. Sharia means ‘law’ in Arabic, so rather than referring to ‘Sharia law’, we will simply refer to Sharia.

Sunni or Shi’a 

Although all Muslims follow the Qur'an and Muhammad as a prophet, different traditions and beliefs have developed out of the two branches of the faith. Sunni and Shi’a are the two most populous branches of Islam. Sunni accounts for somewhere between 80 and 90% of the world’s Muslims and is much more common than Shi’a, but Shi’as make up the religious majority in a few countries like Iran and Bahrain. The main division between Sunni and Shi’a concerns Muhammad’s succession, but further differences have developed from this discrepancy. For example, the Sunni’s Five Pillars of Islam lay out the basic beliefs and practices of every Muslim. Shi’a’s may agree with some of those concepts, but their accepted tenets are different.

English Wills Vs Sharia-Compliant Wills 

A Will is a legally-binding document that stipulates to whom a person will be leaving their assets upon their death. A Sharia-Compliant Will is one which is consistent with the principles of the Islamic law of succession. It is incumbent on every Muslim to make a Will which disposes of his or her property upon his or her death in accordance with Sharia.

Legal Considerations 

Given that Sharia is not recognized under English law, in order to create an Islamic Will that is legally binding in the UK, you must meet the following conditions according to UK law:

• Be 18 years old or over;
• Have the mental capacity to make a Will;
• Have a written Will (spoken declarations are not legally-binding)
• Declare that you wrote the Will;
• Legally declare that this is your last Will (meaning that any other Wills that cover the same assets are now invalid); and
• Sign the Will in the presence of two witnesses, neither of whom can be your spouse or a beneficiary of the Will.

It is not a requirement under Sharia for the Will to be in writing. Any form of declaration made by a person to another trusted Muslim would be valid under Sharia. However, in order for the Will to comply with English law as well as Sharia, it will need to be in writing.

There are a number of additional requirements that must be included in your UK will for it to be Sharia-Compliant, including but not limited to:

• The executor (or wasi) must be a Muslim;
• Nothing under Sharia precludes a woman or a person subject to a disability (such as a blindness or illiteracy) from being appointed as executor or executrix;
• Renunciation of executorship is slightly more difficult under Sharia than English law (the appointment can be rejected while the testator is alive, provided that they inform the testator that they do not wish to accept the office of executor, however it becomes more complex if the testator dies before such rejection);
• The exact distribution of an estate can only be determined upon the testator’s death;
• At least two-thirds of the estate must be distributed among living family members (there are further rules on who inherits what, depending on what family members the testator has, but this is beyond the scope of this note). One rule of note is that male children get twice the shares of female children;
• One-third can be left to anyone the testator pleases, such as a charity;
• The testator must bequeath to his elder son certain heirlooms such as his ‘personal Quran’, his ring and specific articles of clothing or furniture. If the eldest son of the testator has predeceased him, these items fall into residue and are divided according to rules which are beyond the scope of this note;
• Under Sharia, it is forbidden for a person to direct that any part of his or her body should be used for medical or scientific research or that their body is cremated as opposed to being buried, however it is possible in certain circumstances for a person to direct that their body or any part of his body should be used for a transplant or for therapeutic purposes;
• A Will made by anyone who is insane, under the influence of alcohol or drugs or under duress is invalid (the position is similar under English law); and
• A Will excluding any heir or any class of heirs from inheritance under Sharia is not valid unless the person who is excluded has consented to his exclusion (there are some exceptions to this including a person who is a kafir, someone that has committed homicide, someone with the status of a slave and a person who is illegitimate).

How We Can Help? 

Our expert Solicitors has extensive knowledge advising on succession planning, including drafting Wills to meet religious and cultural requirements. We can advise you if you’re based in the UK or internationally and our team are very familiar with Sharia law and Islamic practice. If you’re a business owner or entrepreneur, we can help you create a Will that is Sharia compliant and ensures you have a succession plan in place for the business. We can also advise you on inheritance tax planning.