Peace be upon all of u =)
p/s: this is really a long post. Bare with me okay =)
Recently, the British legal system incorporated Islamic Law, but it only focuses on Wills. This was a very recent update and the guidelines were dated on 13th March 2014 (exactly 13 days ago). The full guidelines is available in Law Society website. And the guidelines is given out are for those who wants their solicitor to prepare their wills in accordance with the Islamic Law, which means, it is OPTIONAL.
News available at: (1) digital journal (2) telegraph
The very first point made in the guideline is Solicitors dealing with clients where Sharia (Muslim) succession rules may be relevant. So, non-Muslims shouldn't be afraid that it is applicable to them, because it does not. At all (Unless if you revert to Islam, than it is an option that you might want to consider in order for you to write your will according to it).
The issue that can be seen is WHY does the LAW SOCIETY in Britain decided to implement such guidelines knowing the fact that "The U.K. has the most comprehensive equality laws in the world" which was stated by Keith Porteous Wood (The Executive Director of the National Secular Society). And Baroness Cox stated that it is "a policy which is inherently gender discriminatory."
I was personally taken aback seeing comments as the above. But here, I will try my best to explain on why I think the Law Society decided to draft out the Sharia-Compliance wills guidelines.
First of all, Islam is a religion. Islamic law is a set of rules that runs the Muslims in their daily life (from the moment they were born till after their death). It is not what the world knows it as being harsh, discriminates, and not equal for the human being today. To understand Islamic Law, YOU NEED TO understands Islam. I'm not asking you to revert, but I am only asking you to understand the point of life according to a Muslim which is in accordance with the al-Quran send down by Allah via the Prophet Muhammad (peace be upon him [p.b.u.h]).
Secondly, will, what is the difference between Islamic Law and Civil Law? In general, your will lets you decide what happens to your money, property and possessions after your death.
Focusing in the United Kingdom [England & Wales], there is an Act; Wills Act 1837; which allow an individual above 18 to write up their own will. And ALL property may be disposed of by will. And without the will, the law will say who gets what. And in UK, there is a website that helps you to get to know who inherits if you die without a will; it is like a quiz, where you answer questions.
So the questions are:
[set A]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [Yes]
(3) Is the estate likely to be worth more than GBP250000 [No]
* The highlighter words for No1-3 are my answers;
# So the website (ie THE LAW) concluded that the husband, wife or civil partner gets all of the estate.
[Set Ai]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [Yes]
(3) Is the estate likely to be worth more than GBP250000 [Yes]
(4) Are there any living children, grandchildren, or other direct descendants (eg great-grandchildren)? [Children include legally-adopted sons or daughters, but not stepchildren] [Yes]
# The husband, wife or civil partner keeps all the assets (including property), up to GBP250,000, and all the personal possessions, whatever their value.
- The remainder of the estate will be shared equally between: (1) the husband, wife or civil partner. (2) any surviving children.
- If a son or daughter has already died, their children will inherit in their parent's place.
[Set Aii]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [Yes]
(3) Is the estate likely to be worth more than GBP250000 [Yes]
(4) Are there any living children, grandchildren, or other direct descendants (eg great-grandchildren)? [Children include legally-adopted sons or daughters, but not stepchildren] [No]
(5) Are there any living parents? [No]
# The husband, wife, or civil partner gets all of the estate.
[Set Aiii]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [Yes]
(3) Is the estate likely to be worth more than GBP250000 [Yes]
(4) Are there any living children, grandchildren, or other direct descendants (eg great-grandchildren)? [Children include legally-adopted sons or daughters, but not stepchildren] [No]
(5) Are there any living parents? [Yes]
(6) Did the deceased have any brothers or sisters? [Yes]
# The husband, wife or civil partner keeps all the assets (including property) up to GBP450,000, and all the personal possessions, whatever their value.
-They also get half of the amount left over.
- The remainder is divided between any brothers or sisters.
- If a brother or sister has already died, their children (deceased's nieces and nephews) inherit.
[Set Aiv]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [Yes]
(3) Is the estate likely to be worth more than GBP250000 [Yes]
(4) Are there any living children, grandchildren, or other direct descendants (eg great-grandchildren)? [Children include legally-adopted sons or daughters, but not stepchildren] [No]
(5) Are there any living parents? [Yes]
(6) Did the deceased have any brothers or sisters? [No]
# The husband, wife or civil partner keeps all the assets (including property) up to GBP450,000, and all the personal possessions, whatever their value.
-They also get half of the amount left over.
- The remainder goes to the parent or parents.
[Set B]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [Yes]
# The estate is shared equally between the children or their descendants.
- If a son or daughter has already died, their children (the grandchildren of the deceased) inherit in their parent's place.
[Set Bi]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(4) Are there any living parents? [Yes]
# The estate is shared equally between the parents. They may have to pay Inheritance Tax.
[Set Bii]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [Yes]
# The estate is shared equally between the brothers or sisters.
-If a brother or sister has already died, their children (nieces and nephews of the deceased) inherit in their place.
[Set Biii]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [No]
(5) Did the deceased have any half-brothers or half-sisters? [Yes]
# The estate is shared equally between the half-brothers or half-sisters.
- If they already died, their children will inherit in their place.
[Set Biv]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [No]
(5) Did the deceased have any half-brothers or half-sisters? [No]
(6) Are there any living grandparents? [Yes]
# The estate is shared equally between the grandparent(s)
- They may have to pay Inheritance Tax.
[Set Bv]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [No]
(5) Did the deceased have any half-brothers or half-sisters? [No]
(6) Are there any living grandparents? [No]
(7) Did the deceased have any aunts or uncles? [Yes]
# The estate is shared equally between the aunts or uncles.
- if an aunt or uncle has already died, their children (the cousins of the deceased) inherit in their place.
[Set Bvi]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [No]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [No]
(5) Did the deceased have any half-brothers or half-sisters? [No]
(6) Are there any living grandparents? [No]
(7) Did the deceased have any aunts or uncles? [No]
(8) Did the deceased have any half-aunts or half-uncles? [Yes]
# The estate is shared equally between the half-aunts or half-uncles.
- if an aunt or uncle has already died, their children (the cousins of the deceased) inherit in their place.
[Set Bvii]
(1) Where did the deceased live? [England and wales, Scotland or Northern Ireland]
(2) Is there a living husband, wife or civil partner? [No]
(3) Are there any living children, grandchildren or other direct descendants (eg great-grandchildren)? [Yes]
(3) Are there any living parents? [No]
(4) Did the deceased have any brothers or sisters? [No]
(5) Did the deceased have any half-brothers or half-sisters? [No]
(6) Are there any living grandparents? [No]
(7) Did the deceased have any aunts or uncles? [No]
(8) Did the deceased have any half-aunts or half-uncles? [No]
#The whole estate goes to the Crown.
After looking at the questions above [a long one], I saw that the son or daughter of deceased is not one of the main inheritance according to Civil Law in UK (except only when the husband, wife or civil partner is dead). As well as it purely sees the amount of money that the deceased have before giving it away to the right ones.
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Question: What about Islamic Law? Is there any difference? The women get less than the men don't they?
Answer: There is a lot of difference.
When a Muslim dies there are four duties which need to be performed. These are:
- payment of funeral expenses
- payment of his/her debts
- execution his/her will [or known as al-wasiyya; and it is usually 1/3 of her total wealth]
- distribution of the remaining estate amongst the heirs according to Sharia [also known as the method of Faraidh]
The importance of the Islamic will (wasiyya) is clear from the following two hadith [collection of the Prophet Muhammad's statements during his lifetime]:
"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 [one of the popular scholars who memorize the hadith])
"A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah [among the popular scholars who memorize the hadith])
The will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.
The wasiyya is executed after payment of debts and funeral expenses. the majority view is that debts to Allah (SWT) such as zakh; obligatory expiation etc. should be paid whether mentioned in the will or not.
So, when a Muslim writes a will, the will is meant for non-heirs who he intends to help. Thus, the heirs are entitled to a specific fraction which is stated in the Quran. The fraction stated in the Quran are as follows:
Surah An-Nisa
Allah chargeth you concerning (the provision for) your children: to the male the equivalent of the portion of two females, and if there be women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then the half. And to of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; and if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents or your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is Knower, Wise. (11) And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother's side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent. (12)
They ask thee for a pronouncement. Say: Allah hath pronounced for you concerning distant kindred. If a man die childless and he have a sister, hers is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is Knower of all things. (176)
There are 25 groups of people who deserve the legacy of someone who has died, 15 male and 10 female. The discussion below is basically the interpretation to the contents of Surah An-Nisa verse 7-14 above. But there is one thing to remember, not all of the 25 who have rights over the estate when it will be distributed, there are certain conditions that give a rise to the priorities of some people who may cancel the right of the heir to another. The 25 groups are:
1. Male heirs
• Sons.
• Grandsons (sons of the sons, as well as in this case all descendants who are still in the male line (paternal)- great-grandsons, his sons, and so on down).
• Father.
• Grandfather from the side of Father (father of father), and continue upwards from the blood ties are from the father (up to the great-grandfather, for instance, if they are still alive).
• True Brothers (one mother and father).
• Brothers from father descendant; the same father (but different mother).
• Brothers from mother descendant ; the same mother (but different father).
• The sons of the true brothers (nephews).
• The sons of the brother from father descendants.
• The true brothers of father (uncle).
• Father's brothers (uncle) from father descendant.
• The sons of uncle (the true brother of father) or in the other terms the cousin from father family.
• The sons of uncle (brother of father from father descendant).
• Husband.
• The Men who have liberated (freed) the corpse (if he used to be a slave when he was alive).
If the 15 people mentioned above are all still alive, then the entitled ones to inherited the heritage left by the corpse only 3 (three):
1. The Father of the dead.
2. His Sons.
3. Husband.
2. Female heirs
• Daughters.
• The daughters of the sons and so on down, in condition that still in ties with the dead on the line of men. For example, the daughters of grandsons, or the daughters of great-grandsons; came down from the original line of men.
• Mother.
• The Mother of Father.
• The mother of mother, and continue upwards in maternal line and may not be broken by the male line (for example mother of grandmother, grandmother of grandmother, and so on).
• True sisters (one mother and father).
• The sisters from father descendants; the same father but different mother.
• The sisters from mother descendants; the same mother but different father.
• Wife(s).
• The Women who have liberated (freed) the corpse (if she / he used to be a slave when she/he was alive).
If the 10 people mention above are all still alive, then the ones who have rights to inherit the corpse’s heritage are only 5 (five);
1. Wife.
2. Daughters.
3. The daughters of the sons.
4. Mother.
5. The true sisters (one mother and father).
Furthermore, if the 25 parties above are still alive or have been found, then the rights of the inheritance are only for:
1. Husband / wife.
2. Mother and father.
3. Sons and daughters.
There is no age limit to get a ration of inheritance in Islam, even if there is a child born when the death occurred - the baby is entitled to the inheritance.
For this thing, The Prophet (p.b.u.h) said, "If there is cry of a newborn child, he get a heritage." (Narrated by Abu Dawud).
There are even scholars who argue, not only newborns, even fetuses which are still inside their mother's womb is to be entitled to the inheritance in which they are entitled.
If I could have a super big whiteboard, it would be easy. But I'll use the some situation as the above and let us see how are the divisions going to be like according to Islamic Law.
The fractions according to the Quran are:
1/2; Husband/Daughter/Granddaughter
1/3; mother/2 or more sisters or brother from mother's descendant.
1/4; Husband/Wife
1/6; Mother/Father/Grandmother/Grandfather/Granddaughters/sisters or brother from mother's descendant/sister from brother descendant.
1/8; Wife
2/3; 2 or more daughters
Balance; son and some other heirs
NOTE: THE FRACTIONS ARE GIVEN ACCORDING TO THE HEIRS AVAILABLE AND CLOSEST TO THE DECEASED.
Please take note:
(1) No matter where you live, your faraidh is the same in Islam.
(2) We don't give away your wealth according to the amount of your money.
(3) We don't exercise civil partner in our law.
(4) Legally adopted children as well as stepchildren will be written in the will (it is totally up to the deceased).
Example - Deceased is a Husband, he leaves:
[situation 1]
Wife: 1/8
Son(s): Balance
Granddaughter: Not applicable
[situation 2]
Wife: 1/8
1 son: 2 parts from 7/8
1 daughter: 1 part from 7/8
Sister: Not applicable
Grandson: Not applicable
[situation 3]
Wife: 1/8
1 son: 2 parts from 7/8
2 or more daughter: share 1 part from 7/8
Sister from mother descendent: Not applicable
For online calculator of FARAIDH, You can google it. Or else, you can go to online in English calculator or in Bahasa Malaysia's calculator. Because we have our own counting rules and methods. Once the calculations are completed, then only the total balance wealth from all the paid up debts and death expenses are to be divided according to the calculation made earlier on.
Thus, both law serves for different purpose in order to cater different groups of people.
IN Civil Law;
(1) without the will, the law will decide upon the wealth.
(2) Division depends on the amount of money.
(3) Further taxes need to be paid if the receiver is not considered as a direct relative according to the law.
IN Islamic Law;
(1) with or without the will, the faraidh is applicable.
(2) Division depends on the fraction given and not the amount of money.
(3) Eligible heirs will receive according to the chart and fractioned amount.
(4) No taxes need to be paid if the receiver is considered as a distant relative to the deceased.
(5) It is only applicable to a Muslim deceased as well as his/her Muslim family members.
(6) Non-Muslim are still eligible when it is being stated in the will by the deceased during his lifetime.
So, is it even logical for the British Legal Officers to be implementing such wills in their society? Well, it is not as if they are removing the current wills system that are in practice. WHY? Because the Sharia-compliance wills are meant for Muslim (just emphasizing =))
Hope this benefits you & me.
