Under English law, a person who wants to leave his or her estate to particular people of their choice, can do so in a Will. Some Muslims want to be able to distribute their estate according to Islamic or Sharia law and want to make a Will accordingly. Despite media references to Sharia law being enshrined in English law, this is not actually correct. English law allows for testamentary freedom and making a Will according to Sharia is simply a reflection of this.
Under Islamic law however, a person must leave their estate according to fixed rules. Therefore, after all debts and funeral expenses have been paid, you can leave one third of your estate to distant relatives, persons who are not heirs under Sharia law, and charities. This must be done by making a valid Will. A third each must be left to a set primary and residuary heirs. These heirs are listed and each heir will receive a predetermined amount of the estate depending on the heirs that survive.
A portion of the estate will firstly pass to the list of primary heirs. There are four sets of male and eight sets of females in this category and includes parents and grandparents, half brothers, and husband as well as full and half sisters, and wife.
Sons and full brothers are the residuary heirs. Generally male heirs will receive twice the amount a female heir of the same class will receive. If there are no residuary heirs then the primary heirs receive the entire estate. If the deceased does not have any primary or residuary heirs then the estate can be distributed to more distant relatives.
If there are no relatives as above, then the testator can ratify kinship with individuals, or name a successor by contract.
There are some difficulties in drafting Sharia compliant Wills in that it is impossible to say which heirs will survive the testator. It may be necessary to have a general description in a Will referring to a third of the estate going to a surviving to a set of primary and residuary heirs, naming each type of primary heir, or by attaching an appendix with a list of possibilities of the different types of heirs. To date, the validity of this has not been tested in English courts.
There are no restrictions on a person making lifetime gifts, as long as they do not generally breach Sharia law.
If you are thinking of making a Will and want to consider a Sharia Complaint Will, please contact me Shakeel Mir on 020 8899 6620 or e-mail me at firstname.lastname@example.org.