In last months article, we started to discuss Islamic Wills in the Australian context.

This article will discuss some legal considerations for Wills generally in Australia, the laws of intestacy, some key differences between an Australian Will and an Islamic Will, and benefits of an Islamic Will for Australian Muslims.

Legal Considerations

Shariah law is not recognised under Australian law. This poses a problem if a family member of the deceased wishes to contest the Will, as the matter may be resolved by an Australian court of law, under the Australian legal system.

It is of vital importance to ensure a will is legally valid under Australian law. It is, however, insufficient to have a legally valid will which merely states that Shariah should be enforced. An Australian court would not have the necessary inclination, skills and knowledge where to begin.

The distribution of assets under Shariah law is impossible to predict, as the shares received by each family member depend on who survives the deceased.

No individual is able to predict with certainty whether their parents, spouse or children will predecease them, or sometimes even if they will have more children in the future. It therefore becomes very difficult to comply with Australian law by stating the exact shares due to each family member. However, devising a sample formula can assist in this matter.

Laws of Intestacy

Those unfortunate to pass away without leaving a legally valid will are affected by the ‘laws of intestacy’ which effectively require the assets to be distributed amongst the surviving partner and children in shares set by Australian law.

However, if the surviving family of the deceased mutually agree to distribute the assets according to Shariah principles, according to Australian law they will have voluntarily relinquished the shares due to them under the intestacy laws and chosen to receive a differing share as per Shariah law.

However, if any member of the family wishes to dispute the share owing to them, then the voluntary arrangement cannot be legally enforced, and if the matter reaches court, then the family member concerned would only be legally entitled to whatever share is due to them under intestacy law. It is therefore imperative a legally valid will is prepared prior to death.

Key differences between an Australian Will and an Islamic Will

An Australian Legal Will (non-Islamic) An Islamic Will
Distribution of your wealth No restrictions. You choose the beneficiaries and how much they each receive. The Quran has chosen who the beneficiaries are and how much they each receive; however, you can give up to 1/3 of your estate as gifts to others
Burial Arrangements No restrictions Ensures that you have a Muslim Burial and prohibits any unnecessary autopsy. You can also clearly document your intention to donate your organs to those in need.
Payment of Obligations Pay all debts, taxes due and funeral expenses. Pay all debts, taxes due, and funeral expenses; as well any outstanding Mahr, Zakat and Fidya.
Powers of your Trustees Wide powers to administer estate. Limits powers of investment to those compliant with the Shariah.
Jurisdiction Valid under Australian Law, as long as it complies with any formal requirements. Valid under Australian and Shariah Law, as long as it complies with any formal requirements. Must also comply with any Islamic requirements re the signing of the Will.

Mahrmeans a gift (bridal money/dowry) given by a husband to his wife at marriage, although it may be deferred after marriage. It is an essential condition for a valid marriage in Islam.

Zakatmeans the obligatory charity payable on wealth.

Fidyameans the compensation in monetary terms for every fast a person breaks or misses. This must be used to feed a poor Muslim with two meals per day equal in value to the person’s own meal for each fast he has missed.

Benefits of an Islamic Will for Australian Muslims

  1. Burial Rites

By executing (signing) a valid Islamic Will, a Muslim can give directions for the executor to make proper preparations for the washing and shrouding of the body. In addition, directions can be made for the funeral procession, Salat-ul-Janazah (funeral prayer) and the burial. This allows a Muslim to state their intention to have an Islamic funeral.

  1. Autopsy

A valid Islamic Will, containing directions for the prevention of an autopsy, is an important consideration if the Coroner is contemplating ordering an autopsy. In addition, an Islamic Will can contain provisions for either allowing or preventing removal and donation of organs and other internal body parts.

  1. Guardianship of Minors (Children)

A valid Islamic Will can also provide guardians for any children under the age of 18. This means your intention as to who will look after your children (for example cared for by Muslim next of kin)in the event that both you and your spouse pass away at the same time is made clear. In addition, a valid Islamic Will also provides for a trust to be created for the maintenance of a minor until they become adults.