The Shari’a heirs

The heirs’ entitlement is fixed, depending on the number and nature of the heirs who survive. This means it is not possible to say in advance who will inherit: it is only at the date of death that the division can be calculated.

Two main types of Shari’a heir are entitled to inherit. First, the estate will be distributed amongst the Ashabul Fara’id (also known as Zawil Furood). These are the obligatory or primary heirs: those individuals whose share has been prescribed in the Shari’a.

There are 12 primary heirs in total – 4 males and 8 females.

The male heirs are:

1. father;
2. grandfather;
3. uterine brother (half brother on mother’s side); and
4. husband.

The female heirs are:

1. wife;
2. daughter;
3. granddaughter;
4. full sister;
5. consanguine sister (half sister on father’s side);
6. uterine sister (half sister same mother);
7. mother; and
8. grandmother (father’s mother and mother’s mother).

The exact amounts received by the primary heirs will depend primarily on how many survive the deceased.

Second, after the Ashabul Fara’id receive their prescribed share, the remaining estate will be distributed amongst the Asabat (plural of asaba which means residuary). Asaba are those relatives of the deceased who receive the remainder or residue of the estate after the primary heirs have received their shares. If there are no primary heirs, then the residuary (Asaba) heirs will receive the estate in its entirety.

Shari’a default provisions

The Shari’a default provisions can be quite complex:

1. First, if there are no residuary heirs, then the entire estate is divided between the primary heirs pro rata to their original entitlements. This is known as ‘radd’ (or augmentation of the original entitlements).
2. If there are no primary heirs and no residuary heirs, the estate goes to the Zawil Arham (distant kindred). Zawil Arham are those blood relatives of the deceased who are neither primary heirs nor residuary heirs.
3. If the testator has absolutely no family, so there are no primary or residuary heirs and no distant relatives, then it is possible to create heirs. This can be done in two ways.
1. First, the individual can name a Mawlal Muwalat (successor by contract) to receive the inheritance. Muwalat means to ‘befriend’. In Islamic jurisprudence, it refers to a distinct type of contract, Aqd Muwalat or the contract of friendship. This can be a two way process, so that each person will be a Mawlal Muwalat of the other.
2. Second, it is also possible for the individual to ratify kinship with another person, making him an Al-Muqirun lahu bin-nasab.
4. In the absence of anyone in the above categories who is able to inherit, the estate is divided between those heirs who received the freely disposable third. This is the only scenario where non-heirs can receive more than one third of the estate (without the consent of the heirs).
5. If there is no one to inherit, then the entire estate goes to the Bayt-ul Mal (the Treasury of an Islamic government).

It may be easier to set these provisions out in the following table format:

Claims by ‘deprived’ heirs

The Shari’a heirs cannot be deprived from their entitlement to inherit. Any attempt to pass assets that are ‘due’ to a Shari’a heir to someone else is invalid. Should an heir be deprived of their full entitlement, s/he will have a claim against the estate and/or the person who has the assets.

Under Shari’a law, there is no statute of limitations for this claim: it continues in perpetuity and can even be inherited. So if a claim is still outstanding at the time the ‘deprived heir’ dies, his or her own heirs can then make the claim. Obviously there will be questions of enforceability, particularly in non-Shari’a jurisdictions, and much may depend on the type of asset and where it is situated.

Common traps

No distinction is made between children of different marriages, but illegitimate and adopted children are not Shari’a heirs. The male heirs in most cases receive double the amount inherited by a female heir of the same class. It is worth adding that individuals who are non-Muslims may not inherit at all and non-Muslim marriages are not recognised. Similarly, a divorced spouse is no longer a Shari’a heir, as the entitlement depends on a valid Muslim marriage existing at the date of death.

It is also common in English estate planning for spouses to own assets jointly, either as beneficial joint tenants or tenants in common. However Shari’a laws work on the basis that spouses own assets independently of each other, so that the correct inheritance can be calculated on each spouse’s death. After all, the husband’s heirs may not be the same people as the wife’s heirs, so co-ownership of assets can cause problems for Shari’a clients. There might be conflicting claims between the surviving co-owner and the heirs of the deceased spouse.

Shari’a compliant Will drafting

Having established that a client is subject to Shari’a law, the next question is how to prepare a Shari’a compliant Will. The main difficulty is the inability to state in advance who the Shari’a heirs will be. As noted above, the identity of the heirs and their respective entitlements can only be determined at the date of death.

Simply stating that the assets (or at least 2/3rds) are to pass ‘according to the mawarith or Shari’a laws of succession’ might be too uncertain for an English court to uphold. One option, frequently adopted in other common law countries, is to attach to the will a detailed appendix setting out potential Shari’a inheritance scenarios. However, this might be too lengthy and off-putting for the average client. There is clearly also a risk of missing a crucial scenario and not covering all the potential outcomes.

Another option would be to put the assets into a discretionary trust, to be distributed in accordance with a letter of wishes. That letter would in turn refer to the desire that the estate pass to the Shari’a heirs in the correct proportions. However the tax consequences of setting up a fully discretionary trust would have to be considered.

Conclusion

Shari’a laws of succession are complex but cannot be ignored by practitioners. Shari’a laws can have an impact on standard UK estate planning, particularly inheritance tax. Since the spouse cannot usually inherit the entire estate under Shari’a law, the spouse exemption will not apply to the whole estate.

Drafting a Shari’a compliant will can be problematic not least because it isn’t possible to state, in advance of the death, who the heirs are or what they will inherit.

© Jo Summers - PWT Advice LLP

September 2011

Tel: 0845-833-9025

jsummers@pwtadvice.co.uk

Jo Summers is a solicitor. She has just co-written a textbook “Islamic Wills, Trusts and Estates: Planning for this World and the Next” with Mufti Talha Ahmad Azami and Shahzad Siddiqui. The book is published by Euromoney Institutional Investor PLC, see www.euromoneybooks.com/islamicwills for details.