It is a fundamental principle under English law that a testator has complete freedom to dispose of their wealth in their last Will and Testament as they please. This is known as testamentary freedom.
The opposite of testamentary freedom is forced heirship, whereby the testator has no freedom as to how their estate is distributed after death. There are many jurisdictions, such as France and Spain, which have an element of forced heirship and Islamic law (also termed Shariah law) provides for a combination of testamentary freedom and forced heirship. Even English law has a limit to full testamentary freedom in the form of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975).
Under Islamic law a testator has freedom to dispose of up to one-third of the estate, with the remaining balance having to pass to certain family relatives. In this way Islamic law ensures that the closest Muslim family members – spouse, children and parents – will always inherit at least two-thirds of a testator’s estate, providing certainty and security for them. At the same time, the testator can freely dispose of up to a third and this is usually used to benefit other more distant family relatives or charities. Indeed, there is a strong emphasis in Islamic law that stresses the need to benefit orphans, needy and charity in one’s last Will.
Essentially, an Islamic Will is somewhat of a misnomer in that in reality it is an English Will which provides for a distribution of the estate that accords with what is prescribed under Shariah. Therefore, in no way does this contravene or supersede English law, but rather it sits firmly within the English legal framework.
The key aspect for many Muslim clients is that the English Will providing for an Islamic distribution of the estate – the Islamic Will – incorporates a distribution of the estate that is believed to be divinely revealed and which provides for the needs of immediate family and also of the wider society, and as such is conducive to all, providing a balance between rights and responsibilities due to and from individuals.
This is demonstrated in relation to the shares passing to children of the testator. Under Islamic law a son is entitled to twice the share of a daughter, a fact which leads some people to believe Islamic law is discriminatory against women. This is quite ironic as when Islamic law was first revealed it was felt that this provided too many rights to women in an otherwise male dominated world.
However, when the full system of Islamic distribution is considered it becomes clear that although a son has twice the entitlement of a daughter he also has all the responsibilities for providing for his family, parents and other female relatives if they are not able to do so for themselves.
This contrasts to the daughter, who does not have such responsibilities and has complete freedom over her own wealth and is permitted to spend and invest as she pleases.
Further, there is no general concept of gender inequality and this can be evidenced in that both mothers and fathers usually receive the same entitlement and there are permutations within the system of forced heirship that the Shariah provides, which provides for the female to receive more than the male counterpart.
In summary, the Islamic law of inheritance provides for the distribution of a testator’s wealth in a non-discriminatory manner between the closest surviving relatives and is developed in such a manner that every conceivable situation is dealt with and therefore the possibility of a full or partial intestacy is nil. Within that framework there is a strong emphasis on leaving one’s estate to charity. To actually calculate each particular beneficiary’s share is beyond the scope of this article, but there are various smartphone apps and websites which provide calculators that confirm the correct distribution.
Haroon Rashid is a solicitor at Gateley