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

1. General Rules Regarding the Priorities of the Estate

Upon the passing of an individual, there are primarily three priorities to be considered and settled regarding the estate, before its distribution to the heirs:

1. Funeral

Expenses related to the funeral and burial, including costs associated with the burial plot and even the shroud, ought to be covered by the estate. By default, these costs are deducted from the estate, unless family members express a desire to handle them independently.

2. Debts

Following the funeral costs, all debts and money owed to others need to be paid from the estate. The Prophet (ﷺ) said,

“All the sins of a Shahid (martyr) are forgiven except debt." and "The believer's soul is suspended by his debt until it is settled for him." The heavy weight placed on the repayment of debts underscores the essential role it plays in preserving the rights of others.

3. Bequests

After the first two priorities are taken care of, we can move on to distributing the wealth. The distribution happens upon two stages - dispensation of any cited bequests, and then the distribution of the remaining estate among the heirs.

Regarding bequests, up to a third of the entire estate is allowed to be ring-fenced by the testator (deceased) for bespoke distribution.

In addition, the beneficiary from a bequest must exist at the time of the passing of the testator in order for a bequest to be considered regulatory, with the exception of general and continuous beneficiaries. For example, bequests confined to causes such as a Qur'an school, or a person/s defined by a description such as students of knowledge, or the needy and orphans, etc.

Also, and importantly, any bequest made towards an individual already inheriting by right of the rules of Islamic inheritance, will be considered invalid by Islamic Law unless the other legal heirs to the estate forgo their rights and agree to the wishes of the deceased.

This is not obligatory, rather it is recommended if they wanted to give something from their wealth to his relatives, the poor and the righteous as an ongoing Sadaqah Jariyah.

Distribution to the heirs

Finally, the estate can be distributed to the heirs according to their pre-ordained shares. It is important to note that in some Muslim countries, there may be additional legalities before this can be distributed.

2. Barriers to Eligibility

There are a number of obstacles that prevent a person who usually qualifies, falls under the waratha, from inheriting from the estate of the deceased. While there are a few potential obstacles, the ones most relevant to our contemporary discussion include the following:

1. Homicide

The one who murders another deliberately cannot inherit from the deceased. This is a point on which there is scholarly consensus, because of the hadeeth of Abu Hurayrah RA who said: The Messenger of Allah ﷺ said:

"The murderer will not inherit."

This hadith is what the scholars follow: the murderer does not inherit, whether the killing was deliberate or accidental. Some of them said that if the killing was accidental, then he will inherit, and this is the view of Al-Maalik.

A person can also be barred from inheriting if they played a part in the murder, even if they didn't directly commit the act. This stems from a widely accepted legal principle among jurists that the one orchestrating a scenario specifically to obtain something prematurely is punished by being denied access to it.

2. Difference in Religion

Differences in religion can preclude individuals from inheriting from each other. The Muslim does not inherit from the disbeliever nor the disbeliever from the Muslim, despite any familial relationship between the two individuals.

3. Who are the inheritors?

ءَابَآؤُكُمْ وَأَبْنَآؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًۭا

You cannot know which of your parents or your children is more beneficial to you. [An-Nisa:11]

Allah SWT has pre-ordained the shares of their heirs from the wealth of the deceased. There are usually contentions or misunderstandings surrounding why the deceased cannot divide their wealth as they please or why there can be difference between the wealth given to different heirs.

A straightforward way to grasp this concept is to first understand that all wealth belongs to Allah SWT and is given to us by Him as a trust, over which we have considerable discretion to utilise as we please.

The trust and discretion to use Allah SWT’s wealth as we please are given to us until the time of our death. At that point, our right to use and benefit from this wealth ceases, and it returns to Allah SWT to be distributed according to His will.

It is a profound act of mercy from Allah SWT that once our ownership of this wealth ceases and Allah distributes it according to His will, we continue to reap the blessings and rewards when our heirs use the wealth virtuously. At the same time, we do not accumulate any sin if the wealth is used unlawfully. All these benefits are bestowed upon us, even though the apportioning of wealth isn't influenced by our own actions.

Primary or Fixed Heirs (Ashab-ul-Furud)

The Qur'an explicitly identifies the individuals who are consistently eligible to inherit. These beneficiaries include:

1. The Mother, Father, Wife, Husband, Daughter, and Son.
2. Parents (father and mother)
3. Husband or wife
4. Children (sons and daughters)
5. Grandparents
6. Residual Heirs (Al-Asabaat)

Residual heirs by reason of blood-relationships inherit in the instance that there are no primary six heirs. These include aunts and uncles, nieces and nephews and other distant relatives.

Distant Relatives (Dhawul-Arham)

Dhawul-Arham or extended family, may receive inheritance, only in the instance that there are no primary or residual heirs.

Before we delve further into how to write a Will, it's important to highlight that, as per Islamic jurisprudence, daughters usually receive an inheritance amount that is half of their brothers'.

This is due to several reasons and is to be understood under a wider macro framework of financial responsibility of males in Islam. While it may seem that sons receive a greater ‘gross inheritance’, Muslim men usually have financial obligations, and it's possible that their 'net inheritance'—the amount remaining after meeting these obligations—may be less.

4. How Do I Write a Will?

From a jurisprudence perspective, a Muslim should be in a mentally competent state when drafting a Will and should have the capacity to draft the Will freely and without any coercion.

A trustworthy executor should be appointed to enact the distribution of the wealth. After this, the individual should ensure that their Will is attested by two impartial witnesses, and it should be documented by a legal expert. We would recommend the final draft to be checked with a scholar for any inaccuracies according to the Shari’ah, alleviating any burden from incorrect understanding.

Many Islamic centres and local scholars often provide templates for Islamic Wills that are tailored to suit the specific legal and cultural context of the individual. We encourage everyone to explore these resources to ensure they have an Islamic Will that is recognised legally and enforceable.

In addition to the legal validity, there are many considerations when making a Will that you can include. For example, it can be used to instruct how the deceased would like to be buried, such as confirming a burial over cremation, in the rare circumstance that the deceased may fear their burial rights being contested by the heirs.

Also, the will can be used to highlight an immediate burial as the dying wish of the deceased, which is closer to the mandates of the Messenger ﷺ's guidance, over a severely-delayed burial in order to accommodate certain relatives arriving from afar, and recommend a particular individual to wash their body, or specify a certain location for burial, for example.

Furthermore, If one adheres to a particular Islamic legal view, such as Surah Fatiha being recited as a part of their janazah prayer; or wants the bereaving family to avoid committing violations of the Shari’ah at the funeral, such as or mourning excessively (Wailing), or wishes to appoint or confirm a guardian over their younger children and give any instructions for the guardian including raising the children as Muslims according to the mandates of Islam; then this too can be included in the Will.

As can be seen, the Will extends beyond the mere reallocation of financial assets. It represents an important opportunity for individuals to impart invaluable wisdom, guidance, and moral teachings to their family members, children and those who have a right over you or that you are connected with in the community.

It is a personal testament - an instrument through which you can communicate your deepest reflections, hopes, and intentions for your loved ones.

What else can you add to your Will

I recommend to include as a reminder to everyone “There is no true God except Allah, the One, Who has no partner. His is the sovereignty and His is the praise, and He is Omnipotent. And that Muhammad ﷺ is His servant and His Messenger, and that Eesa (Jesus) AS is the servant of God and His Messenger and Paradise is true, and Hell is true, and the Hour is coming, there is no doubt about it, and that God will resurrect those in the graves.”

As Muslims, we wish to leave behind a positive, lasting impact on our families and would not want our passing to be a reason for disputes and discord between anyone, let alone the ones we hold closest to us.

Any preventative action we can take in doing so would be in our favour on Qiyamah. Recommend to those whom you left among your family, offspring, and all your relatives to fear Allah, to reconcile relations, to obey Allah SWT and His Messenger ﷺ, to exhort one another to the truth, and to be patient with it.

In crafting your Islamic Will, take the opportunity to address your family directly. A point that is usually overlooked is the inclusion of a heartfelt message to your parents in your Will, if they are alive, as the timing of our departure from this world is uncertain. It is paramount to articulate your appreciation for their unwavering support, their care in nurturing you, and their dedication in providing for your needs such as food and clothing. Their love and support have been instrumental in your life, and expressing this gratitude in your Will can serve as a lasting testament to their efforts.

Consider discussing your spouse's strengths and relay your appreciation for them and areas for growth, and do the same for your children. Express your vision, dreams, and aspirations for your children and grandchildren, and perhaps even provide them with wisdom you wish you had known at their age.

Advise your sons to become self-sufficient honourable men of the Ummah, to guard their chastity in an oversexualised era, to stand with humility regardless of the success Allah has given them, to become strong physically and mentally to endure the trials that await them, to be unyielding in their commitment to their prayers, to stand for justice and with the oppressed, to avoid oppressing others and find solace from this world in their prayers.

Advise your daughters to understand their self-worth lies with Allah SWT and to be noble women of the Ummah.

“Indeed, the most noble of you in the sight of Allah is the most righteous of you.”

Inspire them to be compassionate and caring with those around them and to honour their families. Remind them of the virtues of motherhood and to enjoin each other in good, to guard their chastity, to be generous in what Allah SWT has given them, to increase in worship and decrease time spent preparing dishes during Ramadan and always remember their roles as a slave of Allah SWT.

This can be a platform to impart life lessons you believe will fortify their relationship with Allah SWT when the world challenges it. Impart to them your vision of their progression of Imaan, the depth of relation with Allah SWT you desire for them to attain, and the character traits you wish for them to embody. Such sincere guidance becomes crucial during a period when they will be in mourning and missing your presence. In these vulnerable moments, they are likely to be more receptive to your wisdom and advice.

If you employed a parenting style or methodology that they might have been averse to, use this as a chance to provide insight into your reasons and intentions. Explain that it was driven by your profound love for them and your desire to equip them with the grit and maturity they need to navigate the complexities of life.

It's a space where you can discuss the trials of life you've faced and the resilience you've developed as a result - a resilience you aimed to instil in them through your parental methods. Similarly if you made some difficult decisions for your family or spouse as a leader, give yourself an opportunity to clarify that you had their best interests in mind.

Your Will should function as a heartfelt charter and letter to your family - a powerful and impactful way of expressing your affection and your ambitions for their futures. It's your opportunity to leave a legacy  encapsulating the love, wisdom, and guidance that will endure long after you.

Final Words

In conclusion, the importance of writing an Islamic Will cannot be overstated. As Muslims, we are tasked with fulfilling our obligations in this life, not only to Allah but also to those around us. An Islamic Will is a pivotal tool in ensuring that these responsibilities are met even after our departure from this world.

The process of writing a Will encourages self-reflection and foresight. It reminds us of inevitable death and compels us to consider our worldly possessions and worries in the context of our broader, spiritual journey in obeying Allah SWT, to whom we will return. By thoughtfully deciding where our assets will go, we are reminded of the temporary nature of worldly wealth and our ultimate accountability in front of Allah SWT.

Writing a Will is not merely a legal or financial exercise for Muslims, but a deeply multifaceted spiritual one. It is an act of faith, a commitment to justice, and a testament to our belief in the hereafter. Therefore, every Muslim should endeavour to prepare an Islamic Will and regularly update it, to ensure the just and beneficial distribution of their wealth, to ensure their loved ones receive their guidance and to ultimately continue their spiritual journey even after they have left this world.

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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