Home / Feature / Making a Will – Under English and Islamic Law, Part 1

Making a Will – Under English and Islamic Law, Part 1

By Khaled Noor:

 

Our life on Planet Earth is limited: one is making plans for what to do with one’s life… then comes the appointed time to say goodbye! Death is the only certain fact of our life, an inevitable truth, but its timing is uncertain, so it often comes along before we have prepared.

As Socrates reminds us, “be of good cheer about death and know this as a truth, that no evil can happen to a good man, either in life or after death.” Whether or not we should “be of good cheer about death”, it is the ultimate reality of every living being – succinctly referred to in this Quranic verse: “Every soul will taste death” (3:185).

The death of a person brings about the transfer of his or her rights and obligations to the persons who survive them. These are called wuratha (in Arabic): that is, heirs and representatives. Whatever people accumulate during the short space of their life in this world – money, property, and possessions – is called their “estate”, and it will be left behind and passed to their successors.

If the estate is large enough, a cut of it will go to the government by way of inheritance tax. The balance of the estate will be inherited by those named in the deceased’s will.  If there is no will, the estate will be inherited by relatives in accordance with the law. The relatives may be the deceased’s “issue” – that is, blood line descendants: children, grandchildren, great grandchildren, and so on – or other next of kin, most particularly the surviving spouse, parents and any relatives who have been financially dependent upon the deceased during his or her lifetime.

Here we shall briefly highlight some of the requirements of an Islamic will (wasiyyah) and of a valid will under the law in England and Wales. A growing number of Muslim people wish to distribute their estate, after the death, according to the principles of an Islamic will. However, they should note that:

(i) where there is any apparent contradiction between English law and Islamic principles on wills, English law will always be applied and will have precedence over the Islamic will;

(ii) provided that

(a) all the formalities for the making of a valid will required by English law are complied with, and

(b) it is evident that the will clearly expresses the intention of the deceased in terms of disposal of his or her property,

the English courts will be prepared to give effect to the deceased’s intentions as expressed in their Islamic will.

Dying Intestate

If a person dies without having made their own valid will, that person is deemed to have died “intestate” – that is, without (“in-”) a will (“testament”).  In that case, the intestacy law in England and Wales will determine who inherits what from the deceased’s estate – their money, property, and personal possessions.

The first call on the estate will be to cover the debts of the deceased, including their funeral costs. Whatever balance remains – the “residuary estate” – is distributed between surviving relatives in the order of priority set out in Section 46 of the Administration of Estate Act 1925 (AEA 1925), as amended. This is one reason why it is important for a person to make a will as it provides a clear instruction about who inherits what after the death of the person making the will (the “testator”, or “Al-Musi” in Arabic) – and the testator’s wishes may be different from what is set out in the intestacy law.

Islamic law contains detailed rules for the disposal of the property of an intestate person. These are based on the principle that the deceased’s estate should be distributed to those “who by reason of consanguinity or marital relationships have the strongest claim to be benefitted by it and in proportion to the strength of such claim.”

In the absence of a valid will, the deceased’s property will automatically be distributed among their surviving relatives after payment of funeral expenses and any debt left behind by the deceased. Persons who may inherit property by virtue of their relationship with or marriage to the deceased are divided into three categories, namely Sharers, Residuaries and Distant Kindred. Sharers are entitled to a prescribed fraction. Residuaries are not entitled to a prescribed fraction, but the balance of an estate is divided among them after the entitlements of the Sharers have been satisfied. Distant kindred are all relatives who are neither Sharers nor Residuaries.

Why you should make a will

The most obvious reasons for a person to make a will is to ensure their property is disposed of according to their own wishes (which may, for a Muslim, be the Islamic principles of inheritance) rather than according to the English law of intestacy. Other reasons why you should make a will include the following:

(i) By writing a will you can put your affairs in order and leave clear instructions for your family to follow, which will help them while they are grieving over your death.

(ii) A will is a flexible instrument which permits you to make proper financial arrangements for your family and any dependent children.

(iii) You may select your own executors and trustees to carry out the terms of your will, so you can have confidence that they will carry out your wishes.

(iv) You may appoint a guardian for your minor children (that is, those who are under the age of 18 when you die) – if you have any.

(v) You can make special provision for the long term and/or future care of a disabled relative, such as a child, who may have health or other financial problems.

(vi) A carefully drafted will can help your surviving spouse and other beneficiaries to ensure they are paying the minimum amount of tax necessary under the law.

Testamentary freedom

Under the law of England and Wales, someone making a will is free to dispose of their estate as they wish. However, it should be noted that the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to apply for reasonable financial provision from the estate of the deceased, if they died while domiciled in England or Wales. These include a spouse, a former spouse or civil partner, a cohabitee or a child of the deceased.

Islamic law

Under Islamic Law, a wasiyyah (will) is a gift of property by its owner to another person, contingent on the giver’s death. Al-wasiyyah (the will) includes all the gifts that are made by the deceased during their lifetime. The injunction to a Muslim to leave a will is set out in the Quran, where it is stated that it is the responsibility of God-fearing persons to leave a will behind (Quran 2:180-182), and the prophetic tradition (Hadith): “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahih al-Bukhari)

Islamic Law provides comprehensive guidance on inheritance. It stipulates that there are fixed portions of the estate for each heir. According to the Islamic law of succession (mira’th), there are four male and eight female Sharers. A testator can distribute a maximum of one-third of their entire estate according to their own wishes – and no more, unless their heirs consent. Also, it is stipulated that wasiyyah (the will) should be made with a strict sense of justice and equity.

Additional bequests to a person entitled to inherit a fixed portion of the estate are invalid, and similarly “bequests to any other person are invalid so far as they exceeded one-third of the testator’s property.”  The reasons for limiting the voluntary bequests to one third of the value of the estate are set out in a Hadith of the Prophet Muhammad (pbuh) “…Verily if you die and leave your heirs rich is better than leaving them poor and begging…”

It should also be noted that no one can increase or decrease the share of a Sharer or Residuary, and nor can any valid will deprive a legal heir of their entitlement to the estate. The reasoning behind the setting out of fixed proportions of the estate is to ensure that no will can favour an heir at the expense of the others and so that no heir can suffer an injustice.

Accordingly, bequests to parents are not valid because their right to inheritance as successors is already confirmed in Islamic law of succession. A bequest to anyone other than an heir is valid – provided that it does not exceed the total amount (one third of the estate) set aside for such bequests. As under English law, the wasiyyyah can only take effect after the death of the testator.

Requirements for a valid will

Whether a will is valid depends on the circumstances under which it was made – and, in particular, whether the required legal formalities for making a will have been followed. Under English law, anyone can make a will provided that they have the mental capacity to do so and that they are at least 18 years of age on the date on which they make their will (“privileged wills”, which can be made in certain circumstances by members of the armed forces and seaman at sea, are an exception to the age rule).

The basic test for mental capacity is set out in Banks -v- Goodfellow [1870] LR 5 QB 549 – which is known as the “Banks -v- Goodfellow” test. This requires the testator to understand three things:

(a) the nature of the act and its effects;

(b) the extent of the testator’s property; and

(c) the claims to which the testator ought to have regard.

It is also required that the testator must not have been suffering from any delusion. Section 1(2) of the Mental Capacity Act 2005 states that a person is assumed to have capacity unless it is established that they lack capacity. Section 2(3) of the same Act says that lack of capacity cannot be established merely by reference to:

(a) a person’s age or appearance, or

(b) a condition of his or hers or an aspect of his or her behaviour which might lead others to make unjustified assumptions about their capacity.

Islamic law states that every adult Muslim (a man or a woman) who is of full age and is mentally sane has the legal capacity to make a will or gift and dispose of one third of their property in accordance with their own wishes. An infant/minor cannot make a will. As regards mental capacity, it is required that the testator is capable of distinguishing between good and bad; that he or she should realise that he or she is doing good and not depriving anyone of his or her rights; and that he or she is not disobeying their creator, Allah.

It should be noted here that a person who is on their deathbed and who is in the last minutes of their life (Mard al-Maut) cannot make a valid gift (“Hibah” in Arabic), on the grounds that the doner is likely to lack the mental capacity to understand the consequences of their act. Moreover, “the property of a man on deathbed actually becomes the property of the heirs.”

Formalities of making a will

There is no prescribed form or manner of making a will, and there are no legal requirements that a will should be written and/or witnessed by a solicitor or qualified lawyer. Traditionally a will by word of mouth was equally as valid as a written will. However, there are some formal requirements, set out in section 9 of the Wills Act 1837 (as amended by section 17 of the Administration of Justice Act 1982) which must be observed if the will is to be valid. These state that the will must be:

(a) in writing, and signed by the testator;

(b) signed by the testator in such way as to make it absolutely clear that they intend to give effect to the will;

(c) signed by the testator in the presence of two witnesses; and

(d) signed by the witness in the presence of the testator.

The word “writing” used here includes typing, printing, photography and braille. An “acceptable signature” can include the testator’s thumbprint, initials or an X or similar mark. To comply with the requirements for signing the will, it is highly recommended that the testator and both witnesses should remain in the same room until all have signed the will.

*Khaled Noor is a Barrister-at-Law (N/P) and Solicitor. He is the Principal of Blackstones Solicitors, specialising on Immigration, Family Law and Commercial Property and can be contacted on: Noor@Blackstonessolicitors.com