Islamic law of wills: An overview

HAMID HARASANI takes us through the Islamic inheritance laws and explains how they are applied in practice.

Although the provisions of testate ability to make obligations to bind is inequitable to allow a person to benefit
succession in Islamic law are relatively oneself and others). from his criminal act.
straightforward, the provisions of 4. Not to make a will in favor of
Islamic intestate successions are something prohibited under Islamic 1.3 Subject-ma er of a will
detailed and can be complicated. Unlike law (e.g. a will for a brewery). Such The subject ma er must be in existence
other laws, which may allow a testator a disposition would be void under at the time of the testator’s death (not
to opt out, Islamic intestacy laws will Islamic law and would result back to necessarily at the time of making the
always take e ect, regardless of there the testator’s estate. will). If the asset is a live investment still
being a will or not. This is because generating income then the beneficiaries
Islamic law restricts a testator in both 1.2 The Beneficiary will be entitled to the income in
the amount of his or her estate that A will can be made to any person or accordance to their designated shares.
can be distributed, and the nature of body capable of holding property as The value of the investment at the time of
beneficiaries that he or she can transfer long as the person or body are actually the testator’s death will form part of the
wealth to by virtue of a will. or constructively in existence. By estate and not its future income.
constructively this covers scenarios
Although there are a number of di erent where – for example – a will is made to If the testator is in debt, then repaying
schools of Islamic thought, for simplicity a child in a mother’s womb. In such a the debt will take priority over satisfying
this guide will only deal with the case, if the child is born alive then he or any of the terms of his or her will. If the
prevalent opinions of Sunni Islamic law. she will be entitled to their share; if not, debt is larger than or equivalent to the
however, that particular share would whole of the testator’s estate then the
1. Testate succession result back to the testator’s estate. will will not be given e ect. Covering
Testate succession is the distribution of A non-Muslim can be the beneficiary of a the deceased’s funeral expenses also
the estate of a deceased in accordance Muslim’s will but a will for a non-Muslim takes priority over the will. However, a
with his or her will. The right of a purpose will be void as discussed above will does take precedent over intestate
Muslim testator to make a will is upheld with regards to making a will in favor of shares. This simply means that a will
in Islam and is known as Wasiyah. something prohibited under Islamic law. must be paid out first before satisfying
Islamic law actively requires a Muslim to the intestate shares. In other words,
make a will. A charity can be a beneficiary as long an intestate share will be measured in
as it is a legal body. A testator can also relation to the residue of the estate a er
Form of a will make a purpose based will which states debts and valid testatory dispositions are
There is no prescribed form for an that an X amount will be given for a calculated, not before.
Islamic will. Though the above Sunnah particular purpose (e.g. to build mosques
states that a will should be wri en, or schools). If the amount designated For example, Islamic intestate law
Islamic jurists have a rmed that it to a particular purpose is a specific allocates one quarter of a deceased’s
could also be made orally. A wri en and amount, then that amount should just estate to his wife if he has no issue (i.e.
witnessed will is preferred for evidential be given outright to the purpose. In children). If a testator dies and leaves
certainty. The will must be witnessed some cases, testators prefer to make a GBP100,000 (US$160,950) with a debt of
by two persons with mental capacity. will in a way that would continue their GBP10,000 (US$ 16,091) and a will of a
Islamic jurists have di ered over whether legacy. So instead of donating a specific third of his estate to his local mosque, the
a female could be a witness in a will. It is amount, they would donate the profit debt will be repaid first. Then we would
safer to have two adult male witnesses. from a particular asset (e.g. the rent of be le with GBP90,000 (US$144,824), the
As long as the testator is alive, a will my London property will be paid to testator is entitled to make a testatory
made by him or her is always revocable maintain the mosque I have built). This disposition of up to a third of the £90,000
and will only be final a er his death. is a perpetual desire by the testator and (which he has, so GBP30,000 (US$48,274)
A will may also lapse if the beneficiary should be treated as such. In this case, will go to the local mosque). His wife
predeceases the testator. In such a case, a constructive Waqf (Islamic charitable would then be entitled to one quarter of
and if no alternate intention is apparent trust) may arise providing the property the remaining GBP60,000 (US$96,549),
from the testator, the disposition towards subject to the will does not exceed a and the other intestate beneficiaries will
the deceased beneficiary will result back third of the testator’s estate. This can share the residue.
to the testator’s estate. also be said for a will that designates a
class of beneficiaries (e.g. for the benefits If the subject of a testatory disposition
1.1 The testator of X’s kindred and lineage). This will is a non-replaceable asset (e.g. a specific
For a will to be valid, Islamic law potentially create a constructive Islamic car) and it dissipates or ceases to exist
requires a testator to: Waqf Ahli (Islamic family endowment). a er the testator’s death, then the testate
1. Make a valid declaration, preferably Some Islamic jurists have barred a person beneficiary’s testatory interest will also
in writing. who kills a testator from being allocated cease.
2. Be sane, having command of his a share of his will and have rendered
mind. such a disposition void by virtue of the
3. Have legal capacity (which is the killing. This is under the doctrine that it continued...

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1.4 Acceptance of a will specified – the testator says: “Money beneficiary will be an ultra vires will
Unless the will is for a purpose, a shall be provided to fund A’s college but not a void one. The amount within
beneficiary under a will is free to education.” The problem here is that the one-third limit and the beneficiaries
decline his entitlement, in which case the wording is not certain as to the outside intestate heirs will still receive
the entitlement will be distributed to subject ma er of the will; how much their shares. However, the excess over
apportioned heirs under the Islamic funding would A be entitled to? This the one-third or the amount given to an
intestacy laws. is particularly a problem because intestate heir will be voidable. It will be
uncertainty does not render an voidable in the sense that all or some
1.5 Types of will Islamic will void. Islamic jurists have of the intestate heirs can ratify it. If the
(a) General and specific will devised various methods by which intestate heirs approve the ultra vires
A will can be a general one, where they a empt to discern uncertain excess unanimously then the testate
the disposed property is generally subject ma er in wills. For instance, beneficiaries will receive their allocations
designated as a general share in the one jurist holds that if an allocation in full.
testator’s estate and is not specified under a will is uncertain it should be
(for example, if the testator disposes interpreted to be equivalent to the If, however, the ultra vires excess is
of 1/3 of his estate to Charity A). lowest fractional entitlement of an approved in part then the doctrine
If such a disposition is made, the intestate legal heir. of partial ratification will be applied.
beneficiary will be entitled to the This means that the heirs that refuse to
stated share of the whole estate, as To avoid problems of uncertainty, ratify the ultra vires excess will get their
it exists at the time of the testator’s clients should be encouraged to intestate beneficial interest in full while
death a er debts and expenses. This specify dispositions in cash amounts those who ratify the excess will have to
is problematic as the beneficiary’s or in particular assets. This will make make up for it from their own intestate
beneficial interest will a ach to all the disposition simple to discern and beneficial interest. Unanimous or partial
pecuniary, replaceable and non- the allotment easy to satisfy. approval by the intestate beneficiaries
replaceable property owned by will only be allowed if it is done a er the
the testator (including land). This testator’s death; any approval prior to the
means that it would be very di cult
to speedily satisfy the beneficiary’s
If the intestate testator’s death has no e ect whatsoever
under Islamic law.
interest, as it would be interlocked
with the intestate beneficiaries’
beneficiaries If the intestate beneficiaries do not
interest as well. While such a do not approve approve the ultra vires excess, the testate
disposition is permissible under beneficiaries will have to take their
Islamic law, it should be discouraged the ultra vires allotments pro rata. For example, if a
from a legal standpoint as it can lead testator makes a one quarter disposition
to administrable di culties. excess, the testate to charity A and another one quarter

beneficiaries will
disposition to charity B the total testatory
The second and more favored form of disposition will be one half. This is an

have to take their

allotments
and separable from the rest of the gather the intestate beneficiaries and ask
estate (e.g. a disposition of a specific them whether they would unanimously
pecuniary amount or a specific land).
This disposition is favored because pro rata approve this ultra vires disposition. This
request should be made with absolutely
it is more certain, administrable no pressure on the intestate beneficiaries
and less likely to raise disputes. Its to approve the will. It should be made
finality is also an advantage as the 1.6 Limitations on Islamic wills clear to them that they are completely
disposition is separable from the rest There are two main limitations to a within their rights to reject the ultra vires
of the estate from the outset and will testator’s right to make a will. The first excess and that Islamic law upholds their
therefore enable the testate beneficial relates to the amount of his estate that right to do so. If they then unanimously
interest to be severed from the rest of he can bequeath in a will; he may only uphold the ultra vires excess, it should
the estate immediately and finally. bequeath one third of his estate in his be given e ect. However, if they reject
will to those persons who would not the excess or if one intestate beneficiary
(b) Conditional and contingent wills otherwise be entitled to inherit under rejects the excess the will should be given
A will can also contain a disposition Islamic law. The second limitation relates e ect pro rata (i.e. Charity A and Charity
that will take e ect if the beneficiaries to the nature of the beneficiaries that are B would each be given half of one third
meet specific conditions (e.g. If A allowed to benefit from a will, namely of the testator’s estate).
graduates from school, then he shall anyone who is not an heir under Islamic
be entitled to an X amount), or it can intestacy laws. Hamid Harasani is a consultant to Taylor
be contingent on a specified-event Wessing in London with a PhD researcher
taking place. This has the potential 1.7 Ultra vires wills in comparative Waqf and trust law at King’s
to raise di culties. For instance, A will that exceeds a third of the estate College London. He can be contacted at
what if – instead of the amount being or designates an intestate heir as a hamidharasani@gmail.com.

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