As Muslims living in Australia, it is important to be aware of your Islamic obligations and how they fit within the scope of the Australian legal jurisdiction.
For example, it is possible to have estate planning documents such as a Will and/or an Enduring Guardian document, which comply with both shari’ah (Islamic Law) and Australian Law requirements.
What is a Will?
A Will is a document which sets out what you want to happen to your assets after your death.
Your Will also states who is to be your executor. It is your executor who follows your wishes which are set out in your Will and generally look after your estate after you die.
Your Will details who you wish to leave something to and what you want to leave to them.
How is an Islamic Will different to a standard Australian Will?
An Islamic Will distributes your estate in accordance with the Mawarith schedule, being the set shares as stipulated in the Qur’an (Surah an-Nisa).
The Will states your wish to be buried in accordance with Islamic principles and provides details in relation to same.
Further, in relation to your debts being paid from your estate prior to distribution, the Islamic Will also includes: payment of any outstanding obligations between yourself and Allah (swt) as a debt to be paid, such as outstanding zakat.
The Will stipulates details of acceptable beneficiaries who can received your estate as distributed in accordance with the Mawarith schedule. The Will also sets out further shari’ah aspects including but not limited to: the requirement that a beneficiary who is to receive part of your estate as calculated by the Mawarith schedule cannot be a Non-Muslim; or, to ensure that no part of your estate (not including a bequest), shall be inherited by a person whose claimed relationship to you is the result of a non-Islamic or unlawful marriage or through adoption.
The Islamic Will incorporates the option to bequest 1/3 of your estate at your discretion. The bequest is distributed prior to the estate being divided amongst your surviving relatives in accordance with the Mawarith schedule.
If an individual exercises their right not to make a specific bequest, their estate will be distributed solely in accordance with the Mawarith schedule. If however, an individual wants to make a bequest, they can only bequest up to 1/3 of their estate (pursuant to hadith). The bequest can be made to i.e., a non-relative, a Non-Muslim or a charity/organisation.
What happens if you do not have a Will?
If you do not have a Will you have no control over who inherits your assets after your death. The Succession Act 2006 (NSW) sets out a strict list of the beneficiaries of an estate, when someone dies without a Will.
This strict list might not be what you want. It will also not automatically distribute the assets in accordance with Islamic Principles.
Can an Islamic will be recognised under Australian law?
Yes. A standard Australian Will generally distributes an estate in percentages to elected beneficiaries.
The Islamic Will also distributes an estate in percentages to beneficiaries however, both the percentage and the beneficiaries are determined in accordance with Shari’ah and not by the discretion of the individual making the Will (but for the 1/3 bequest option as previously noted). It is important to note, that it is the individual making the Will who uses their testamentary freedom to enter into the Islamic Will, thus acknowledging and approving the said percentage divisions.
It is therefore possible for Muslims residing in Australia to have a valid Will, which is Shari’ah compliant and in accordance with Australian laws of inheritance.