Observant Muslims Need for a Will

 Posted on December 00, 0000 in Estate Planning

When someone passes away, the next step for most families is to divide the assets according to the wishes of the deceased. However, for observant Muslim faithful, dividing the assets is supposed to be a much easier procedure than for non-Muslims. There are specific tenets in shari’ah law governing the disposition of one’s assets. However, these requirements do not always mesh harmoniously with secular intestacy laws. Therefore, it is considered mustahabb, or recommended, that Muslims always leave wills, or wasiyyat, which provide explicitly for their wishes. Wasiyya, in Arabic, can be translated as “instruction.”

Asset Disposition and Wills in Shari’ah Law

Wills and other testamentary interests are extremely important in Islam. Several hadith make clear that if a man is just in his last will and testament after a lifetime of wickedness, “the goodness of his deed will be sealed upon him, and he will enter the Garden.” Leaving one’s affairs unsettled can be extremely harmful to one’s family - for example, accounts or property may have clouded title, or the position of one’s children (that is, who will be their guardian) may be undecided. A will is the observant Muslim’s last chance to set things right.

The Islamic will is executed after debts like funeral expenses are settled (anything that may be considered a “debt to Allah (SWT)” is generally paid regardless of asset disposition). There are surprisingly few rules on what constitutes a valid wasiyya, however - under the Maliki and Hanafi schools of Islamic scholarship (which most Muslims in the U.S. subscribe to), a valid wasiyya may be oral or written, and does not even have to have witnesses, in theory. Two are recommended, but if there are none and the handwriting matches the testator’s, it is generally considered to be a valid will.

One of the few critical rules in traditional Islamic wasiyyat is that an observant Muslim may not bequeath more than one-third of their property to charity or people other than their legal heirs. In many schools, this is considered doing ill by one’s family (it is generally assumed that leaving one’s family well off, rather than dependent on others, is a virtue). It is also a rule that anyone who can make themselves understood may convey a valid will - every adult Muslim ‘with reasoning ability’, in other words. Verbal speech is not required, which can sometimes put this provision at odds with secular law.

Problems Regarding Secular Law

While a will may be fully valid within Islamic jurisprudence, many of these rules and tenets contravene secular intestacy laws, and some even may be deemed against public policy. In these situations, secular law will hold above shari’ah.

In Illinois, for example, a will must be written - oral wills are unequivocally impermissible under 755 ILCS 5/4-3. The same provision mandates that the testator must sign, or that someone else must sign for them in the presence of witnesses. Mere handwriting matches are not enough. The reason for this is usually ascribed to public policy - it is far too easy to fake a will if it is not set down in writing or witnessed. Similar thinking banned holographic wills in Illinois until recently. (They are now permitted with reservations.) However, if a previously written will qualifies as an “international will” under the Uniform International Wills Act (UIWA), you may be able to circumvent these restrictions. UIWA still mandates that all wills be in writing, but does permit holographic wills, for example.

Seek an Experienced Islamic Attorney

It is possible that even after making a will, an observant Muslim may have all or part of their will disregarded. However, making a will increases the odds that all will be as they wish. The experienced Oakbrook Terrace estate planning attorneys at Farooqi & Husain Law Office can help craft a will that complies with secular law, and with as much of shari’ah law as can be managed in your particular situation. Contact our offices today to discuss your options; we also serve Oak Brook and the entirety of DuPage County.