Guide to Wills

A Will or testament is a legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person/s (executor/s) is to manage the property until its final distribution. A Will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children.

In simple terms, a Will is the formal document that sets out what is to happen to your property and possessions when you die and is binding upon your executor/trustee. A Will only takes effect upon the death of the person who it belongs to and can therefore be revoked any time before then.

Wills usually have sections to manage several other affairs, which can include:

  • Your funeral and burial wishes
  • Paying off all liabilities
  • Who gets specific gifts and what they are?
  • Any charitable donations you wish to make
  • Heirs
  • Guardian(s) to look after your children if you and your spouse die
  • Person(s) who will be in charge for administering your estate, known as the executor(s) or trustee(s)
  • Instructions, guidance and/or clarification

English Will - Under English Law, a testator (the person making the Will) has full testamentary freedom over their entire estate so they can leave 100% of their estate to whomsoever they wish including family members, charities, or anyone else.

Islamic Will - The Islamic Will, in Arabic, wasiyyah is a set of instructions that come into effect after a person’s death. The wishes in the Will are carried out after the payment of funeral expenses and any outstanding debts.

Every Muslim (Male & Female) must have a will, even if his/her total property only consists of just a few hundred pounds.

‘Abdullah bin ‘Umar reported the Messenger of Allah (ﷺ) as saying: “It is the duty of a Muslim man who has something which is to be given as bequest not to have it for two nights without having his will written regarding it.” [al-Bukhari, Muslim, al-Muwatta of Imam Malik, al-Tirmithi, al-Nasai, Abu Dawood, Ibn Majah]

Fulfil an essential religious duty.

If you die without leaving a Will you are considered to have died ‘intestate’ in English Law and your wealth could be distributed in accordance with the rules of intestacy, which do not apply the same criteria as those laid down by the Qur’an and Prophetic teachings. This will result of a distribution of your wealth contrary to the rules laid down by Islam. As such, some of your rightful heirs would be deprived of their Islamic right while some others would receive a larger share.

Consider the situation, Allah (ﷺ) forbid, where both parents die leaving young children, if there is no Will, and thus no guardians appointed, the courts will have an overwhelming say in where those children are placed. No Will means guardianship of children may be given to someone not Islamically suitable.

In accordance with the principle that up to one third (1/3) of a person’s estate may be distributed as he/she wishes, having a Will gives a person the opportunity to help those less fortunate. He/she can assure that the charities they supported during their lifetime are not neglected after their death. A Will helps not only the beneficiaries, but can help the deceased person also, by setting a provision for a charity, an action that continues to be rewarded even after death.

Abu Hurairah (May Allah be pleased with him) reported: The Messenger of Allah(ﷺ) said, “When a man dies, his deeds come to an end, except for three: A continuous charity, knowledge by which people derive benefit, pious son who prays for him.” [Muslim]

An Islamic Will that contains bequests to non-heirs should be witnessed to verify that the deceased indeed made this bequest. Legally, in the UK, for a Will to be valid it must be attested by two witnesses. This is a legal requirement. Two or three trustworthy and responsible Muslims should preferably by chosen to witness the signing of the Will.

A person making a Will should choose their witnesses carefully, remembering that a person who inherits is not able to be a witness. If he or she does so, they will not be able to inherit. The ideal situation would be to choose two people (Muslim) who are trustworthy & responsible to witness the signing of the Will.

Aside from the religious reasons given previously, making a Will makes sense from a legal, practical and commercial perspective as well. Here are a few reasons for you to make a Will:

  • You can avoid major family disputes by creating a legally binding Will that specifies how your estate should be distributed.
  • You can save your beneficiaries thousands of pounds in extra legal fees and unnecessary levels of taxation.
  • You can save your inheritors and executors a lot of time, stress, hassle and worry by clearly laying out who the executor will be, who your children’s guardian will be, who the heirs are and what portion of the estate they shall receive. You might think that your wife or your husband is going to sort things out for you, but what if a family member starts disputing matters after you are gone?
  • You don’t want to leave something like the guardianship of your children to the family courts, who may decide in favour of someone you may not be happy with.
  • If you have not legally registered your marriage (for example, if you have only had an Islamic nikah), then writing a Will ensures your (Islamically recognized) spouse will inherit something. It also ensures that your spouse gets a share of your family home, which she may not always get under the laws of intestacy.
  • If you have stepchildren, foster children, or other dependents who are not blood relations, they will not automatically inherit anything without a Will.
  • Make more comprehensive provision for those with special needs; this allows for care and expenditure to be planned and, where necessary, trustees to be appointed to manage the assets.
  • It also means you are forced into action from an administrative point of view. How will your executor ever find that random bank account you opened in which you still have £200?
  • It is a useful exercise for you to reflect properly upon death.

If you die without a Will, your assets will be divided in accordance with the laws of intestacy. Writing a legally valid Will with the help of an expert ensures people’s estate is inherited exactly as they would choose and can prevent a whole raft of problems landing on loved ones when they are grieving.

We never know when our life will end, so it is important that we all make a valid Will and plan for this eventuality. If you have been left in the painful position of having a loved one die intestate, you will require professional help.

The current Rules of Intestacy state; where a person dies leaving a spouse but no surviving children then the estate is paid to their spouse absolutely. If, however, the deceased dies leaving a spouse and surviving children then the estate is divided as follows:

  • The surviving spouse will keep all personal chattels (whatever their value), a statutory legacy which will be £270,000.
  • The surviving spouse will also receive half of the residue and,
  • The other half is then divided equally between the surviving children.
  • If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.
  • The surviving spouse has the right to acquire the deceased’s interest in the matrimonial home for its full value.
  • If you and your spouse are not (legally) married and you have not made a Will, they have no automatic right to inherit from your estate. This applies even if you have lived together for a long time or have children together.
  • If you have children and your spouse is deceased your children will inherit everything, divided equally between them
  • If you do not have a spouse or children then parents, siblings etc. will inherit your estate in a particular order.

As is evident, the distribution of the estate according to intestacy rules does not conform to the Islamic distribution.

Appointment of Executor(s) (Wasiyy)

The Executor(s) (Wasiyy) of the Will is the one who deals with the administration of the Estate. The Executor(s) must carry out the wishes of the testator as outlined in the Will.

Ideally, the testator should select an Executor who is trustworthy, honest and sensible, and may appoint more than one Executor. The appropriateness of the executor must be given careful consideration; it would be unwise to choose someone with a conflict of interest or someone in a dispute with one of your heirs.

An Executor may be required to apply for a ‘Grant of Probate’ which is a legal document that will authorise the Executor to distribute the assets in accordance with the Will.

Appointment of a guardian for children

Choosing what is best for your child is an essential obligation. This is particularly significant for Muslims who have Non-Muslim relatives and want their children to have an Islamic upbringing. The person to be appointed as a guardian for the child should be whoever is most appropriate for the benefit and care of the child.

Decide on funeral and burial arrangements

The person making the Will (testator) should specify that they would like their funeral and burial arrangements to be carried out in accordance with the practices of Islam. This would include:

  • Burial rituals taking place as soon as possible and having the body released for burial immediately after death without being subjected to a routine post-mortem examination.

The Prophet Muhammad ﷺ said,

“Breaking a dead man’s bone is like breaking it when he is alive.” (Sunan Abu Dawud)

  • The bathing of the dead body (Ghusl)
  • The bathing of the dead body (Ghusl)
  • Shrouding the body (kafan)
  • Funeral prayer (Salat ul-Janazah)
  • Burial of the dead body in a grave (in a Muslim cemetery/section).

These general burial arrangements required by Islamic law are applied as standard in all our Wills. Specific arrangements can be requested and incorporated so long as they conform to Islamic guidelines.

Decide on any Wasiyyah (bequest to non-heirs)

Islam provides you with the flexibility to distribute up to a maximum of one-third (1/3) of your estate as you wish. This is optional and not mandatory; therefore, you can choose to apply the Islamic rules on distribution to your whole estate.

If you choose to exercise this flexibility over one-third (1/3) of your estate, you will be required to follow the rules of wasiyyah:

  • The bequest(s) must be specific (e.g. 1/8th of my assets to X charity)
  • The bequest(s) must be, in aggregate, a maximum of 1/3rd of your entire estate.

These optional bequests may be made to other family members (not inheriting under the circumstances), friends and charities.

Sayyiduna Abu Hurairah (May Allah be pleased with him) said that the Messenger of Allah (ﷺ) said,

“When a person dies, his deeds come to an end except for three: Sadaqah Jariyah (a continuous charity), or knowledge from which benefit is gained, or a righteous child who prays for him” [Sahih Muslim]

Although Islam has permitted bequeathing a maximum of one-third of the total estate to non-heirs or charity, it is in fact discouraged to bequeath the whole one-third. Remember, a legacy for one’s rightful heirs, as per Islamic rules of inheritance, is undoubtedly a form of assistance to them. To prioritise in assisting those closest to us is from the spirit of Islam.

Amir bin Sa’d bin Abi Waqqas (May Allah be pleased with him) narrated from his father (Sa’d may Allah be pleased with him), who said:

“I was ill during the year of the Conquest (of Makkah) with an illness bringing me to the brink of death. So The Messenger of Allah (ﷺ) came to visit me, and I said: ‘O Messenger of Allah (ﷺ)! Indeed, I have a great deal of wealth and I do not have any heirs except my daughter, so should I will all of my wealth?’ He said: ‘No.’ I said: ‘Then two-thirds of my wealth?’ He said: ‘No.’ I said: ‘Then half?’ He said: ‘No.’ I said: ‘Then a third’ He said: ‘No.’ A third and a third is too much. If you leave your heirs without need it is better than to leave them in poverty begging from the people. Indeed, you do not do any spending (on your family) except that you are rewarded for it, even the morsel of food you raise to your wife’s mouth.'” [al-Tirmithi]

The Estate (Tarikah)

The remainder of the estate following payment of funeral costs, debts and bequests (if any) is distributed in specific shares to the obligatory heirs. The shares to these heirs are fixed according to the Quran and may not be changed.

Imam Al-Nawawi (may Allah be pleased with him) said in Al-Majmu’ that the zakat due on a person who was able to pay it and died without having done so, must be paid from their estate because it is a right that they should have paid while they were alive; death does not absolve them of it.

“Debts owed to Allah have more right to be paid” [Bukhari and Muslim]

You should review your Will after any major change in your life such as a new child or death of an heir. Never make alterations on the original document.

If you require an amendment to the Will, this can usually be achieved by way of a codicil. This must be signed and witnessed in the same way as the Will, although the witnesses do not have to be the same as the original ones. If substantial changes are needed, you should make a new Will and revoke your old one.

Surely things are changing constantly. I cannot keep altering my will all the time.

Our Islamic Wills are drafted to cover potential changes in personal circumstances. However, it is impossible to cover all potential changes in one’s circumstances, such as the death of the appointed Executor(s).

What changes should make me reconsider my Will?

  • If any important beneficiary does die before you, you should review the Will.
  • If your Executor(s) die or tell you that they cannot act, or they plan to move away.
  • If your estate becomes much greater or smaller, you dispose of an asset left to a beneficiary and you become aware of changes in how Inheritance Tax (IHT) will affect your estate.
  • If you divorce, your ex-spouse no longer benefits but the Will itself remains valid and no longer makes an effective disposition of your estate. There is a distinction between an Islamic divorce and an English divorce and advice must be sought in the event of either divorce.
  • Perhaps you marry or remarry; your Will is automatically revoked unless expressly made in anticipation of that marriage. Like divorce, advice must be sought upon marrying, whether it be a nikah, legal marriage or both.

If you marry or remarry, this cancels a previously existing Will. Divorce does not automatically invalidate a Will made during the marriage but does exclude your ex-spouse from benefiting if they are mentioned in the Will. Arrange a new Will if you marry, separate or divorce.

Basic principles of Islamic inheritance

In England & Wales, a person has full testamentary freedom, he/she may dispose of their estate upon death as they wish. In contrast, the entitlement of heirs is meticulously outlined in the Quran and Sunnah. However, Islam does accord the ability to gift up to one third (1/3) of the estate to non-heirs.

“[This is] an ordinance from Allah, and Allah is Knowing and Forbearing” [Surah al-Nisa: 11-13]

After death, the estate is disposed of in the following order:

  1. Funeral expenses.
  2. Debts – Any outstanding debts must be paid. Even if the estate is exhausted, the creditor is still owed their money unless they forgive this. The family can choose to pay the debt on behalf of the deceased, but this is not an obligation upon them. If any debts are unpaid, then this matter is with Allah (ﷺ).
  3. Wasiyyah (bequests) – Any Wasiyyah should be honoured if it does not exceed one-third of the value of the net asset.
  4. The remainder of the estate must be distributed to the rightful heirs as per their shares according to Islamic teachings.

General guidelines to distributing the share:

  • The closest relatives (spouse, son, daughter, father and mother) will always inherit a share and will always have precedence over distant relatives; or
  • In the absence of the closest relatives, the more distant relatives (such as grandparents and grandchildren, siblings) can be eligible to inherit a share.