As with all other aspects of life, Islam has laws governing the disposition of one’s property after death. The Holy Quran outlines the principles of the “Islamic Law of Inheritance,” making it obligatory for every Muslim to create a will (a wasiyyah) that disposes of his or her assets in accordance with Sharia law. The interaction between Sharia inheritance and English law of succession can be difficult not only for laymen but also for experts. Consequently, Muslims with ties to the United Kingdom continue to encounter obstacles when drafting a will that complies with Sharia under the law of the land.
The Relationship Between Sharia and English Law
English law does not recognise the Sharia rules on inheritance as a distinct set of rules, and drafting a Will that merely states that Sharia applies is ineffective and therefore likely to result in intestacy. Sharia is also variable between different communities (such as the Shia and Sunni communities), making it difficult to ascertain the meaning and consequence of the principles under English law.
The history
Definition of Sharia
Sharia is the term used to describe the legal principles applicable to the Muslim religion. It is based on the Holy Quran, Sunnah, Hadith, and the rulings of Islamic scholars. Sharia means ‘law’ in Arabic, so instead of ‘Sharia law,’ we will simply refer to Sharia.
Sunni and Shia
Although all Muslims adhere to the Qur’an and recognise Muhammad as a prophet, the two branches of Islam have developed distinct traditions and beliefs. Sunni and Shi’a are the two most prevalent Islamic sects. 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 primary disagreement between Sunnis and Shi’a concerns Muhammad’s succession, but this difference has spawned additional differences. For instance, the Five Pillars of Sunni Islam outline the fundamental beliefs and practices of every Muslim. Shi’as may concur with some of these ideas, but their fundamental beliefs differ.
English Wills Versus Wills Compliant With Sharia
A Will is a legally binding document that specifies to whom an individual will leave his or her assets upon death. A Sharia-Compliant Will is one that conforms to the principles of Islamic succession law. Every Muslim is required to create a Will that disposes of his or her assets in accordance with Sharia upon death.
Legal Implications
Given that Sharia is not recognised by English law, the following requirements must be met in order to construct a legally binding Islamic Will in the United Kingdom:
- be at least 18 years old;
- Have the intellectual capacity to create a Will;
- Have a written Will (verbal statements are not legally binding).
- Declare that you are the will’s author.
- Declare that this is your last Will (any other Wills covering the same assets are now null and void); and
- Sign the Will in front of two witnesses, neither of whom may be your spouse or a beneficiary named in the Will.
A number of additional requirements must be met for your UK will to be Sharia-compliant, including but not limited to the following:
- The wasi (executor) must be a Muslim.
- Nothing in the Sharia prohibits the appointment of a woman or a person with a disability (such as blindness or illiteracy) as executor or executrix.
- Renunciation of executorship is marginally more difficult under Sharia than under English law (the appointment can be rejected while the testator is alive, provided that the person informs the testator that they do not wish to accept the office of executor, but the process becomes more complicated if the testator dies prior to such rejection).
- The precise distribution of an estate cannot be ascertained until the decedent’s passing.
- At least two-thirds of the estate must be distributed to living family members (there are additional rules regarding who inherits what based on the number of living family members the testator has, but those rules are beyond the scope of this note). One important rule is that male children receive twice as much as female children.
- One-third of the estate can be bequeathed to whoever the testator chooses, 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 apparel or furniture. If the testator’s eldest son has passed away, these items become part of the residue and are distributed according to rules beyond the scope of this note.
- Under Sharia, it is prohibited for a person to direct that any part of his or her body be used for medical or scientific research or that their body be cremated as opposed to being buried; however, it is permissible for a person to direct that his body or any part of his body be used for a transplant or therapeutic purposes.
- A Will made by a person 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 exceptions to this rule, including a person who is a kafir, a person who has committed homicide, a person with the status of a slave).
How Can We Help?
Our seasoned solicitors have extensive experience advising on succession planning, including the drafting of wills that adhere to religious and cultural requirements. Our team is well versed in Sharia law and Islamic practice and can provide guidance, whether you are based in the United Kingdom or elsewhere in the world. If you are a business proprietor or entrepreneur, we can assist you in creating a Sharia-compliant will that ensures your business has a succession plan. We can also assist with estate tax planning.
