“From what is left by parents and those nearest related-there is a share for men and a share for women – whether the property be large or small. A share made fardh (compulsory).”
(Qur’an: Surah Al Nisa 4:7).
“It is not permissible for any Muslim who has anything to bequeath that s/he may pass even two nights without having his/her last will and testament written and kept ready with him/her” – (Hadith: Reported by Abdullah ibn Umar- Mishkat)
It becomes incumbent on any Muslim who has assets in his/her name to draw up a will so that the beneficiaries and/or heirs are clearly stated and leave no room for uncertainties, disputes, bitterness, and family breakdowns afterwards as is the case with so many families today. This is a duty not to be neglected because life and death has no guarantees. Life is short. Today we may be here. Tomorrow we may be gone. Imagine the distress that is caused to the widow, or children, or leaving a near and dear destitute by not clarifying your will and by not doing it according to Shari’ah requirements.
The first and foremost aspect worth noticing here is that many Muslims are mistaken in believing that, writing a Will means distributing one’s wealth and estate amongst the inheritors during one’s lifetime.
This is incorrect, as making a Will does not mean one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that, upon my death, my executors will distribute my wealth according to Shariah. One may also state that this will be determined by a local Muslim scholar or Mufti, who will be contacted and appointed by my executors upon my death.
The reason behind this is that the inheritance portions have been determined and allotted by Allah Most High in the Quran. These portions vary according to who is alive at the time of one’s death. Death with leaving parents behind will differ from passing away after the parents have passed away, in that the inheritance portions will be different in both cases.
As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate.
The beauty of Shariah is its simplicity and certainty.. When you are writing your Islamic Will, you do not have to try and figure out which of your relatives will still be alive when you die in order to make sure that they will receive something. Whoever administers your estate will ascertain (in collaboration with a knowledgeable scholar) which of your relatives are still alive and what fixed shares they are automatically entitled to inherit by applying the criteria of Shariah.
Moreover, it is unlawful and invalid to make a bequest (Wasiyya) in favour of an individual who automatically is entitled to receiving a share of the estate, such as one’s spouse, children and parents, etc.
The Messenger of Allah (Allah bless him & give him peace) said in his historic sermon (khutba) of his farewell hajj (haj al-Wada): “Verily Allah has given each rightful person their right, thus there is no bequest in favour of a inheritor. (Sunan Tirmidhi, no: 2120, narrated by Sayyiduna Abu Umama al-Bahili)
The meaning of this Hadith is that Allah Almighty has already fixed and allotted the shares of those who are entitled to inherit from one’s estate. As such, if one was to make a Will in their favour, one will be going against the shares fixed for them in the Quran and Sunnah.
However, if one wished to make a bequest/Will for a non-relative, or for a charity, then this would be allowed (and rewarded), but only up to a third of one’s total wealth. The remaining two thirds will be left to be distributed amongst the relatives according to the fixed shares prescribed by Allah Most High. If one does not make a bequest of up to one third of the estate, then all of the estate will be divided between the surviving relatives. The Messenger of Allah (Allah bless him & give him peace) forbade from making a bequest of giving one’s wealth in charity which is more than one third.
In conclusion, be sure to make your will strictly according to Islamic rules to save yourself from the wrath of Allah. If you have already executed a will that is not compliant, it is recommended that you execute a new Shari’ah compliant will. Furthermore, if you are an heir to a will that was not executed according to Shari’ah, and you are aware of it, it then becomes your duty to rectify the matter so as to give all the Qur’anic heirs their due share.
Attached is a Sample Will and a Sharia Inheritance Distribution schedule that will guide you in dividing a person’s property amongst the stated beneficiaries
Note: To use this table, the reader should first ascertain whether the deceased left a wife or husband, and if she or he survived, should look under the appropriate heading. Only in default of either should search be made under “sons and daughters”, “father and mother” and the rest, and then in the order given in the first margin. In each instance it is supposed that there are no nearer relations than those named.
(1) Re Mutchilim  M.L.J. 25.
(2) The daughters in such case being residuaries with the son.
(3) The son’s daughters being residuary with the son’s son.
(4) An example of the doctrine of aul or increase.
(5) The mother gets 1/3 of ¾ (that is after deducting the wife’s share). This follows a decision of the Caliph Umar.
(6) The brothers and the sisters are residuaries.
(7) An example of aul.
(8) The son’s son and son’s daughter are residuaries.
(9) Example of aul or increase.
(10) Examples of aul or increase
(11) In these cases the daughter and son’s daughter get their Quranic shares while the sister takes as residuary.
(12) The mother gets 1/3 of ½ (that is after deducting the husband’s share).
(13) The brothers and sisters are residuaries.
(14) This is the case of himariyya or musharaka. The full brother and the uterine sisters share the 1/3 share. See Fitzgerald Muhammadan Law p.135 and Nawawi Supra, p.250.
(15) This is the case of Al-akdariya – see Tyabji Muhammadan Law (3rd Edn.) p.874 and Fitzgerald Muhammadan Law p.128 and Nawawi p.253 Supra, (p.22 supra)
(16) This is the case of al-Malikia – see Fitzgerald p.128.
(17) There is a doubt whether the son’s daughters (who are excluded as Quranic heirs) are nevertheless entitled to take as residuaries together with the agnatic ascendant or collateral. See Fitzgerald Muhammadan Law, p.124.
(18) In all these cases, as there are two daughters the son’s daughter cannot inherit as Quranic heir. She therefore takes as an agnatic heir and shares the residu with the lower son’s son.
(19) The son’s daughter is a residuary with an equal son’s son.
(20) As there is a “nearer” daughter, the share of the son’s son’s daughter is 1/6 that is the remainder of the 2/3 share of daughters.
If a person dies leaving
Division of Real and Personal Property
|FATHER AND MOTHER:|
|Father and no other relations||
All to father..
|Father and mother||2/3 to father, 1/3 to mother|
|Father, full brothers and sisters||All to father.|