Preserving a Legacy: Exploring Islamic Wills and their Profound Impact Part I

31 million people in the UK alone have no will. 84% of those under the age of 35 have no will; and 60% of these people overall lack an up to date will. These are truly alarming statistics.

The concept of death in Islam serves as a powerful reminder for believers that our time in this world is finite and uncertain. The indiscriminate inevitability of death transcends age, health, or status, arriving unexpectedly, swiftly and snatching away our loved ones or even ourselves. Its relationship with the son of Adam isn't personal, but rather an inevitable part of life.

Allah Almighty says:

هُوَ يُحْىِۦ وَيُمِيتُ وَإِلَيْهِ تُرْجَعُونَ

He is the One Who˺ gives life and causes death, and to Him you will ˹all˺ be returned. [Yunus:56]

And He says:

كُلُّ نَفْسٍۢ ذَآئِقَةُ ٱلْمَوْتِ ۖ ثُمَّ إِلَيْنَا تُرْجَعُونَ

Every soul will taste death, then it is to Us that you will be returned [Al-’Ankabut:57]

As Muslims, this reality compels us to reflect upon the transient nature of life and the importance of preparing for the hereafter. Islam urges us to be mindful of our actions, to seek forgiveness and repentance, and to lead a life of submission to Allah SWT, even in death.

Embracing the uncertainty of when death will approach, we should strive to please Allah SWT even in the impact we leave after returning to Him through the correct distribution of our inheritance as per His laws.

Being someone created to live and assigned to carry a portion of the legacy of the final Messenger (ﷺ), the manner in which we manage our legacy is the final significant influence we can exert on this world. It is therefore of utmost importance to ensure that it aligns with the teachings and pleasure of Allah SWT.

In this 2-part series, we explore the role an Islamic Will plays in the larger Islamic economy and its profound impact in our legacy as Muslims.

1. What is an Islamic Will?

An Islamic will, also known as a ‘Wasiyyah’, is an Islamically legally binding document that Muslims use to ensure that upon their death, their rights, the rights of their heirs, and the rights of Allah Almighty are protected in accordance with Islamic law.

Regarding the protection and preservation of these rights, it is worth noting that without an Islamic will in the UK, after someone passes away, their wealth would be distributed by an ‘executor’ or ‘administrator’ in accordance with English law, not Islamic law. This would mean that, in the case of a surviving married partner, the married partner would inherit all the personal property and belongings of the person who has passed away.

If there are surviving children, grandchildren, or great grandchildren of the person who passed on, and the estate is valued at more than £270,000, the partner will inherit the following:

-     All the personal property and belongings of the person who has died

-     The first £270,000 of the estate

-     Half of the remaining estate

In addition to this, there is a standard Inheritance Tax rate of 40%. This is only charged on the part of your estate that’s above the threshold of £325,000 which can be increased if you give away your home to your children or grandchildren.

There’s normally no Inheritance Tax to pay if either:

-    The value of your estate is below the £325,000 threshold

-    You leave everything above the £325,000 threshold to your spouse, civil partner, a charity or a community amateur sports club.

Unfortunately, unless a Muslim couple have gone through a separate civil ceremony despite having a valid Nikah (Islamic marriage), their marriage would not be recognised by English law unless the civil content and requirements are complied with as well.

So immediately we see that writing a will helps ensure your spouse will actually inherit from you correctly, as per the rules of Islam, and will not need to spend large sums of money and countless amounts of time and health in order to prove their relationship to a court to preserve the sanctity of the estate and be able to inherit a portion of the deceased’s wealth.

2. The Importance of Wills in Islam

The importance of wills in Islam is derived from many considerations, such as:

1. The revelation of intricate details surrounding wealth distribution after death in about 35 verses in the Qur’an known as the verses of ‘Mawaareeth’ (succession).

2. Teachings of the Messenger (ﷺ) in several narrations related to the topic of inheritance, such as the hadith of Abdullah bin Umar RA in which he says that the Messenger (ﷺ) said:

"It is the duty of a Muslim who has anything to bequeath not to let two nights pass without writing a will about it." (Bukhari)

3. The immediate enactment of the companions of the Messenger (ﷺ) on the topic of wills after receiving its instruction.  

3. Wisdoms for establishing a will

There are many different wisdoms for establishing a will, some of which are as follows.

1. Completing an obligation

We just covered an instruction from the Messenger (ﷺ) regarding the status and ruling of wills in Islam. In addition to this, there is a famous maxim of Islamic Legal Theory that states that

‘An obligation that cannot be completed except through another action being completed, then the completion of that action too becomes an obligation’.

Regarding this, Allah Almighty reveals within the verses of succession the following:

فَرِيضَةًۭ مِّنَ ٱللَّهِ ۗ إِنَّ ٱللَّهَ كَانَ عَلِيمًا حَكِيمًۭا

This is an obligation from Allah. Surely Allah is All-Knowing, All-Wise [An-Nisa :11]

A will helps us ensure that the system of Allah SWT reigns after our passing, and as such, if the will helps preserve the integrity of Islam’s rules regarding the inheritance, the obligatory ruling pertaining to the shares of inheritance in Islam applies to the will as well.

2. Attaining God-consciousness

Essentially, Taqwa is the concern within one to refrain from what is displeasing to Allah SWT and preserve what is pleasing to Him. On the topic of Islamic inheritance, Allah Almighty says:

تِلْكَ حُدُودُ ٱللَّهِ ۚ وَمَن يُطِعِ ٱللَّهَ وَرَسُولَهُۥ يُدْخِلْهُ جَنَّـٰتٍۢ تَجْرِى مِن تَحْتِهَا ٱلْأَنْهَـٰرُ خَـٰلِدِينَ فِيهَا ۚ وَذَٰلِكَ ٱلْفَوْزُ ٱلْعَظِيمُ ١٣ وَمَن يَعْصِ ٱللَّهَ وَرَسُولَهُۥ وَيَتَعَدَّ حُدُودَهُۥ يُدْخِلْهُ نَارًا خَـٰلِدًۭا فِيهَا وَلَهُۥ عَذَابٌۭ مُّهِينٌۭ

These are the limits set by Allah. Whoever obeys Allah and His Messenger, He will admit him to gardens beneath which rivers flow, where he will live forever. That is a great success. Whoever disobeys Allah and His Messenger and transgresses the limits set by Him, He shall admit him to the Fire, where he will remain forever. For him there is a humiliating punishment. [An-Nisa:13-14]

Creating a will requires thoughtful planning and demonstrates a sense of responsibility and accountability for your actions and their consequences. This proactive behaviour is an embodiment of Taqwa.

3. Preservation of the Rights of the People

It is established within Islamic Jurisprudence that before the payment of bequests and the distribution of the estate, all monetary debts owed to others must be paid. In today’s day and age, and given the nature of how businesses, acquaintances, and investors interact and transact, numerous situations may arise where individuals have loans or other financial obligations that aren't officially documented or witnessed.

Given that we should avoid unjustly retaining the wealth that rightfully belongs to others, it becomes crucial to establish a will that provides real-time data to the heirs regarding any outstanding debts.

4. Preservation of the Rights of the Inheritors

Similarly, it's not uncommon for individuals to have money owed to them that might not be formally recorded or acknowledged. To ensure fairness and precision, it's crucial that the nature of these debts be made known to the resulting heirs so that an appointed representative can work towards ensuring that they are repaid to the estate.

An individual may possess Sukuk, ISAs, properties in different countries, any pensions, a variety of stocks, funds across different trusts, and in today’s age, maybe even cryptocurrencies.

While we should aim to diversify our wealth to maximise its benefits within the bounds of the law, this should not be done at the expense of making it difficult for the heirs to locate or acquire the wealth. Although there may be exceptions, it's crucial that families are informed about the assets they own.

We have seen many situations where a person passes away and their spouse or family does not know where their investments are or which properties or lands they own. In some cultures, for instance, husbands may not disclose their assets or their whereabouts to their wives. Searching for the answers often creates a sense of oppression, and puts undue emotional and financial stress on the family and, in some cases, are unattainable.

5. Appreciating the Holistic Nature of the Shariah

Consider this verse:

وَأَقِيمُوا۟ ٱلصَّلَوٰةَ وَءَاتُوا۟ ٱلزَّكَوٰةَ…

Establish Salāh and pay Zakāh… [An-Nur : 56]

In numerous verses of the Qur'an, Allah SWT pairs Salah and Zakah together, demonstrating that there's no dichotomy between these two aspects of worship. Instead, they are both integral intertwining aspects of our worship where Salah is the direct, bodily worship and Zakah is the financial worship.

In the same breath, so too are the laws surrounding inheritance in Islam, for they aid the development and preservation of the rights of our spouses and families, and support the parental process, which are, by the way, all different interweaving strands of worship that help us build the unassailable relationship we seek with Allah and the enormous unprecedented prize He promises the righteous.

For instance, a well-drafted and detailed will can play a crucial role in preventing potential disagreements among family members. In the absence of a will, family members might interpret your wishes differently, some preferring culture and non-Islamic practices over divinely pre-ordained laws, leading to disputes and strained relationships. This is very common in many cultures where large family disputes over inheritance are common.

A clear will leaves no room for ambiguity. It provides explicit instructions on how each part of your wealth will be distributed among your heirs. This can be particularly important if you want to bequeath a third or less of your wealth to a cause or individuals of your choice.

Additionally, a will should not only address the distribution of wealth, but also the management of the distribution. By appointing a reliable person to enact the division, you can ensure your wishes are carried out as you intended.

This can further reduce the potential for disagreements and misunderstandings among your family members, as there can be power struggles between varying family members over who has the right to distribute the wealth. For example, a father might feel he is best placed to distribute his late son’s assets, whereas his wife may disagree, causing avoidable turbulence within the family unit.

By discussing your will and your intentions with your family members while you are still alive, you can address any questions or concerns they might have. This openness can help prevent surprises after your death, further reducing the potential for disputes. This can be particularly helpful as estranged parents, children with ex-wives and sometimes even grandparents in different countries can have a share in the inheritance in Shariah.

Also, conversations about our wills can serve as a unifying factor for our families and contribute to the process of successfully parenting our children by encouraging us to consider their future and enabling them to become self-sufficient through our guidance.

The idea of a will pushes us to consider nurturing our children to a level of maturity whereby we can discuss our assets with them with ease and understanding, as opposed to constantly nurturing the idea that they lack maturity and trustworthiness to appropriately manage a conversation of this nature.

3.  Conditions Necessary for Succession

Before we can proceed with the distribution of assets and inheritance from an individual, there are certain conditions that have to be met. These are as follows:

1.   Confirmed death

It is necessary to have an official affirmation of their death. In this day and age, this verification should come from a state-sanctioned authority, such as a Medical Doctor, a Coroner, or legal authorities. It's important to note that the specific entities and procedures involved may differ according to local laws and regulations.

At first glance, this requirement for proof might appear overly rigorous. However, inheritance is only considered as inheritance when someone actually passes away, and as such, the intervention of a recognized authority to confirm the life status of a person is extremely valuable. The Shariah offers comprehensive guidance for all scenarios, and this specific level of stringent proof can be particularly appreciated in cases of the heirs differing with regards to missing persons, for example.

2.   Living heirs

In order to be eligible for inheritance, heirs must be alive at the time of the benefactor's death. If an heir passes away after the benefactor, but before the estate has been distributed, then their share is directly transferred to their own heirs, thus ensuring the preservation of their inheritance rights.

Occasionally, questions arise about the inheritance rights of an unborn child. Generally speaking, if the child is born alive, they are entitled to a share of the benefactor's estate. The distribution of the estate is usually deferred until the birth of the child, or if there is sufficient reason then the share of the child will be preserved until the birth.

3.   Presence of an Estate

When an individual passes away, their estate devolves upon the waratha. Waratha refers to the inheritors or heirs of a deceased person. These are the individuals who are eligible to receive a portion of the deceased's estate according to the rules of inheritance outlined in the Qur'an and the Hadith.

In its most comprehensive sense, an estate, or tarikah, includes every possible type of asset that an individual legally owns at the time of their passing. It covers real estate such as houses, land and other types of real estate.

Personal property such as vehicles, clothing, jewellery, artwork, collectibles, books, electronics, appliances, furniture, and even animals are part of the estate.

Financial assets are a significant component of the estate and these include cash, gold, bank accounts, stocks, mutual funds, pensions, and even cryptocurrencies or NFTs. Business interests, whether they are in the form of ownership shares in a corporation, membership interests in a limited liability company, or partnership interests, are also included in the estate.

Intangible assets such as copyrights, trademarks, patents, and other intellectual property rights are part of the estate as well. The estate also comprises all types of debts and rights owed to the individual, whether from personal loans or other forms of contractual obligations.

Even items that might seem trivial or inconsequential, like the loose change in a moneybox or the balance on a prepaid card are part of the estate.

In essence, anything of value that can be owned or controlled by the individual, no matter how substantial or minute, tangible or intangible, physical or electronic, traditional or modern, falls within the comprehensive scope of the estate.

Often, families may divide financial assets while keeping items like clothes, jewellery, or watches for their sentimental value. However, these personal belongings are also part of the estate and cannot be exclusively claimed by an heir or anyone else without first including them in the estate and attaining agreement from all parties with a rightful claim to the estate.

If an heir wishes to specifically claim an item such as a watch, agreements can be made wherein the individual agrees to reimburse the estate with the agreed value of the item.

Closing Words

This concludes part I of this 2-part series exploring the deeper wisdom of Islamic wills and how they are conducted. In the next article, we explore the rules regarding the priority of the estate, who qualifies to receive inheritance, the barriers to eligibility and advice on how we can write our own will.

Sheikh Dr. Sajid Ahmed Umar holds a 3-year University Diploma in Arabic language and Islamic Studies, a Bachelors degree in Comparative Islamic Law and Jurisprudence Methodology. He also holds a Masters degree in Judiciary, and is a qualified Judge. Sheikh Dr. Sajid has also completed a PhD in Comparative Islamic Law with his postgraduate research focusing on the area of Liquidity Management and Financial Risk Management through an Islamic lens.

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