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Where there’s a Will, there’s a way… Part 1

Khaled Noor, Principal of Blackstones Solicitors, looks at how to make a will which will satisfy English law and Islamic principles.

OUR LIFE ON Planet Earth is limited: one is making plans for what to do with one’s life… then comes the appointed time to say goodbye! Death is the only certain fact of our life, an inevitable truth, but its timing is uncertain, so it often comes along before we have prepared.

As Socrates reminds us, “be of good cheer about death and know this as a truth, that no evil can happen to a good man, either in life or after death.” Whether or not we should “be of good cheer about death”, it is the ultimate reality of every living being – succinctly referred to in this Quranic verse: “Every soul will taste death” (3:185).

The death of a person brings about the transfer of his or her rights and obligations to the persons who survive them. These are called wuratha (in Arabic): that is, heirs and representatives. Whatever people accumulate during the short space of their life in this world – money, property, and possessions – is called their “estate”, and it will be left behind and passed to their successors.

If the estate is large enough, a cut of it will go to the government by way of inheritance tax. The balance of the estate will be inherited by those named in the deceased’s will.  If there is no will, the estate will be inherited by relatives in accordance with the law. The relatives may be the deceased’s “issue” – that is, blood line descendants: children, grandchildren, great grandchildren, and so on – or other next of kin, most particularly the surviving spouse, parents and any relatives who have been financially dependent upon the deceased during his or her lifetime.

Here we shall briefly highlight some of the requirements of an Islamic will (wasiyyah) and of a valid will under the law in England and Wales. A growing number of Muslim people wish to distribute their estate, after the death, according to the principles of an Islamic will. However, they should note that:

(i) where there is any apparent contradiction between English law and Islamic principles on wills, English law will always be applied and will have precedence over the Islamic will;

(ii) provided that

(a) all the formalities for the making of a valid will required by English law are complied with, and

(b) it is evident that the will clearly expresses the intention of the deceased in terms of disposal of his or her property,

the English courts will be prepared to give effect to the deceased’s intentions as expressed in their Islamic will.

Dying Intestate
If a person dies without having made their own valid will, that person is deemed to have died “intestate” – that is, without (“in-”) a will (“testament”).  In that case, the intestacy law in England and Wales will determine who inherits what from the deceased’s estate – their money, property, and personal possessions.

The first call on the estate will be to cover the debts of the deceased, including their funeral costs. Whatever balance remains – the “residuary estate” – is distributed between surviving relatives in the order of priority set out in Section 46 of the Administration of Estate Act 1925 (AEA 1925), as amended. This is one reason why it is important for a person to make a will as it provides a clear instruction about who inherits what after the death of the person making the will (the “testator”, or “Al-Musi” in Arabic) – and the testator’s wishes may be different from what is set out in the intestacy law.

Islamic law contains detailed rules for the disposal of the property of an intestate person. These are based on the principle that the deceased’s estate should be distributed to those “who by reason of consanguinity or marital relationships have the strongest claim to be benefitted by it and in proportion to the strength of such claim.”

In the absence of a valid will, the deceased’s property will automatically be distributed among their surviving relatives after payment of funeral expenses and any debt left behind by the deceased. Persons who may inherit property by virtue of their relationship with or marriage to the deceased are divided into three categories, namely Sharers, Residuaries and Distant Kindred. Sharers are entitled to a prescribed fraction. Residuaries are not entitled to a prescribed fraction, but the balance of an estate is divided among them after the entitlements of the Sharers have been satisfied. Distant kindred are all relatives who are neither Sharers nor Residuaries.

Why you should make a will
The most obvious reasons for a person to make a will is to ensure their property is disposed of according to their own wishes (which may, for a Muslim, be the Islamic principles of inheritance) rather than according to the English law of intestacy. Other reasons why you should make a will include the following:

(i) By writing a will you can put your affairs in order and leave clear instructions for your family to follow, which will help them while they are grieving over your death.

(ii) A will is a flexible instrument which permits you to make proper financial arrangements for your family and any dependent children.

(iii) You may select your own executors and trustees to carry out the terms of your will, so you can have confidence that they will carry out your wishes.

(iv) You may appoint a guardian for your minor children (that is, those who are under the age of 18 when you die) – if you have any.

(v) You can make special provision for the long term and/or future care of a disabled relative, such as a child, who may have health or other financial problems.

(vi) A carefully drafted will can help your surviving spouse and other beneficiaries to ensure they are paying the minimum amount of tax necessary under the law.

Testamentary freedom
Under the law of England and Wales, someone making a will is free to dispose of their estate as they wish. However, it should be noted that the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to apply for reasonable financial provision from the estate of the deceased, if they died while domiciled in England or Wales. These include a spouse, a former spouse or civil partner, a cohabitee or a child of the deceased.

Read part 2 of this article, which looks at how Islamic principles may be observed within a will which complies with English law, HERE.

●Read more articles on the law by Khaled Noor of Blackstones solicitors:

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