Islamic Wills are a fascinating and specialist area of the law. From time to time, I meet Muslim couples who are struggling to agree on how best to structure their Wills. Sometimes, one spouse is keen to follow the traditional principles of Islamic Wills, with 1/3 of their estate ultimately passing to their daughter(s) and 2/3 to their son(s). The other may feel that a more typically Western approach of dividing the estate equally amongst the children would be fairer to their daughters.
I recently had an enlightening conversation about Islamic Wills with a knowledgeable Muslim friend (which started as a ‘quick question’ over a cup of tea and descended into the flagrant fetching of a pen and copious scribbling of notes on my part!) I followed this up with some research into the key principles of Islamic Wills, for future reference.
Interestingly, the Prophet Muhammad, founder of Islam, was strongly in favour of Will-making, as you can see from the quote below.
“It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.”
The PropheT MuhammAd
In Islamic law, there are predetermined rules derived from Quranic law which govern how a Muslim’s estate should be divided on death. These vary and may be interpreted differently by different schools of Islam, so this post is inevitably very much a rough guide.
Typically in the UK, if one of a Muslim married couple dies, the surviving spouse will inherit their share of the house automatically on a joint tenancy. The survivor would also usually be the sole executor of the estate on the first death. The remaining assets would then be divided, with 1/8 going to a surviving wife or 1/4 to a surviving husband, and the balance passing to the children in the ratio 2:1 for sons and daughters. On the second death, the 2:1 ratio again applies, with the eldest son often acting as executor.
This division may at first glance seem unfair to a Westerner, but crucially, the 2/3 share given to sons comes with weighty financial responsibilities. The son is then responsible for looking after his mother and sisters financially for the rest of their lives, if necessary. One can see that this traditional system probably works well, as long as everyone plays by the rules. However, nowadays parents are sometimes concerned that in the next generation, one of their children might marry a non-Muslim, or perhaps a son might not take their ongoing financial responsibilities as seriously as they should, in which case difficulties could arise.
Islamic Wills and Investments
In order for an Islamic Will to comply with Sharia law, if there are ongoing trusts, the testator will want to give guidance to their chosen trustee(s) about what they should invest in, avoiding investments which are prohibited under the Quran. In particular, the trustees should be advised to avoid investments based on interest or speculation, because borrowing or lending money for interest is strongly frowned-upon in Islam. They should also avoid certain sectors of the food and beverage industries such as those selling pork or alcohol, the tobacco industry and investments related to illegal drugs, gambling or the adult entertainment industry. Incidentally, I would sincerely hope and expect that non-Muslim family trusts would also avoid investing in quite a few of the foregoing areas!
Islamic Wills and Daughters
There are two strategies that a Muslim couple might consider, if they feel uncomfortable about their daughter inheriting less than their son, but nonetheless wish to respect Sharia law. First, they could consider making one or more lifetime gifts to their daughter, to balance up any perceived discrepancy. This is permitted under Sharia law. Second, they might consider leaving the ‘additional’ share of their estates, which their son would traditionally have received outright, on a discretionary trust for a class of beneficiaries including the family members who might need to be supported using these funds over time, as well as their son. The testator could leave a letter of wishes setting out what he or she has in mind, and providing that whilst the funds should be held in trust long-term for the benefit of whichever family member might need them, ultimately their son should inherit. This would go some way towards formalising the traditional arrangement, which might give concerned parents comfort that the system will work as it ought to in the next generation.
Hopefully, I have managed to summarise some basic information about Islamic Wills here with reasonable accuracy, but if not, or if there are subtleties I have missed, please do leave a comment below to set the record straight.
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