Islamic Will Seminar

ISLAMIC WILL SEMINAR Shaykh Saleem Bhimji
ISIA of Edmonton
January 28, 2017

TABLE OF CONTENTS
Islamic Will Seminar
The Qur’an and the “Will”
The Hadith and the “Will”
What is a “will”/”Testament”?
Islam and the “will” – 1/2
Islam and the “will” – 2/2
Is a “will” really Necessary?
Intestacy rules in Canada –
1/2
Intestacy rules in Canada –
2/2
importance of making a “will”
1. Missed religious obligations
2. Intervention and
bureaucracy of authorities
3. Security and well-being of
surviving family members
4. The wishes of the deceased
may not be honoured
5. Acts of goodness and
charity may not be performed
6. Jealousy amongst surviving
family members
7. peace of mind in one's final
days
The call to return…
Death and the transfer of our
estate
Division of the estate
Discretion of the one-third
Lapsed (qadha) prayers – 1/2
Lapsed (qadha) prayers – 2/2
What is an “Estate”?
What is not part of the
“Estate”?
Joint Account & Property –
1/2
Joint Account & Property –
2/2
Wife’s Share in real-estate - 1
Rights in Islam
Why does the wife get less?
Using the 1/3 option within the
family system
daughter gets ½ of
the son’s share? (1)
daughter gets ½ of
the son’s share? (2)
Example of inheritance
Various important points
What is an Executor /
executrix?
Traits of the Executor /
executrix
Guardian for minor children
Guardian for minor children
Social media and e-mail
Organ donation
Organ donation during life
Organ donation after death
Living will – 1/3
Living will – 2/3
Living will – 3/3
Why a Power of Attorney?
Power of Attorney – 1/3
Power of Attorney – 2/3
Who to appoint as Power of
Attorney – 3/3
Funeral arrangements
Our eventual end…
Ensure your journey to the next
world is as smooth as can be…
References for this presentation
Have more questions?

THE QUR’AN AND THE “WILL”
ُ‫ت‬ْ‫و‬َ‫م‬
ْ
‫ال‬ ُ‫م‬
ُ
‫ك‬َ‫د‬َ‫ح‬
َ
‫أ‬ َ َ
‫َض‬َ‫ح‬ ‫ا‬
َ
‫ذ‬ِ‫إ‬ ْ‫م‬
ُ
‫ك‬ْ‫ي‬
َ
‫ل‬
َ
‫ع‬ َ‫ب‬ِ‫ت‬
ُ
‫ك‬
ْ
‫ن‬ِ‫إ‬‫ي‬ ِ‫ص‬َ‫و‬
ْ
‫ال‬ ‫ا‬ً ْ‫ْي‬
َ
‫خ‬ َ‫ك‬َ‫ر‬
َ
‫ت‬
ُ
‫ة‬
ِ‫ن‬ْ‫ي‬َ ِ‫اِل‬َ‫و‬
ْ
‫ِل‬‫ل‬
َ
‫ال‬َ‫و‬َ‫ني‬ِ‫ب‬َ‫ر‬
ْ
‫ق‬
َ َ
‫لَع‬ ‫ا‬
ًّ
‫ق‬َ‫ح‬ ِ‫وف‬ُ‫ر‬ْ‫ع‬َ‫م‬
ْ
‫ال‬ِ‫ب‬َ‫ني‬ِ‫ق‬‫ت‬ُ‫م‬
ْ
‫ال‬
Prescribed for you, when death approaches
any of you and he leave behind any
property, is that he make a will for his
parents and relatives, in an honourable
manner; an obligation on the God-conscious
ones. [Ref: Al-Qur'an, 2:180]
ISLAMIC WILL SEMINAR - SHAYKH SALEEM BHIMJI (SHAYKH.SALEEM@JAMMAT.ORG)

THE HADITH AND THE “WILL”
ُ‫م‬
َ
‫ال‬‫الس‬ ِ‫ه‬ْ‫ي‬
َ
‫ل‬َ‫ع‬ ٌّ ِ
َ
‫لَع‬
َ
‫ال‬
َ
‫ق‬:‫ن‬َ‫م‬
َ
‫ك‬
َ
‫اكن‬‫ضار‬ُ‫ي‬ ‫م‬
َ
‫ول‬
ْ
‫ِف‬
َ
‫َي‬ ‫م‬
َ
‫ول‬ ‫أوىص‬‫ن‬َ‫م‬
‫يف‬ ِ‫ه‬‫ب‬
َ
‫ق‬‫د‬ َ‫ص‬
َ
‫ت‬ِ‫ه‬ِ‫ت‬‫يا‬َ‫ح‬
Imam Ali, peace be upon him, has said: “The one
who makes a will and (in this will) does not
oppress anyone [by taking away their rights of
inheritance] and does not cause harm to anyone,
it is as if he had given all of his wealth away in
charity during his life-time.” [Ref: Al-Kafi, vol. 7,
pg. 62, trad. 18]

WHAT IS A “WILL”/”TESTAMENT”?
A 'Will' is defined as:
1. Instructions from a person for certain acts to be carried out on his behalf after his death;
2. Or that some of his wealth becomes the property of another person after his death;
3. Or that the ownership of his property be transferred to someone;
4. Or that some of his wealth be used in acts of charity and welfare;
5. Or that he appoints someone as guardian and custodian of his children and/or dependents.

ISLAM AND THE “WILL” – 1/2
According to Islamic law, a person that dies and leaves inheritance
may apportion one-third of their estate as per their wishes, and
the remaining two-thirds are distributed automatically according
to pre-set inheritance laws.

ISLAM AND THE “WILL” – 2/2
In non-Muslim societies that do not recognise Islamic law,
the vehicle used to provide instructions regarding the
inheritance is known as the Will/Testament.

IS A “WILL” REALLY NECESSARY?
Consequences of a Muslim not having a Will:
 RELIGIOUS: Your heirs might get more or less than the shares specified for
them in the shari'ah – you are responsible for this with Allah and will be
held accountable to Him in the grave AND/OR the Day of Judgement.
 SECULAR: In Canada, if you die without a Will you are considered to
have died “intestate”. The provincial government decides how your assets
will be divided – AND NOT YOU.

INTESTACY RULES IN CANADA – 1/2
Each province has intestacy rules that define the estate's
beneficiaries and how much each is to receive. Usually, this
means your legal spouse and biological and adopted
children will likely end up with your estate's assets.

INTESTACY RULES IN CANADA – 2/2
Intestacy rules, however, do not take into account any
intentions you may have for distributing your assets [charity,
etc…]. Even worse—intestacy can result in additional legal
costs for your beneficiaries.

IMPORTANCE OF MAKING A “WILL”
For some people, it may become compulsory (wajib) to
write their Will bearing in mind the possible harmful
consequences of not possessing a Will at death –
ESPECIALLY living in The West, some of which are as
follows…

1. MISSED RELIGIOUS OBLIGATIONS
Other
religious
obligations
Hajj
(Pilgrimage
to Mecca)
Sawm
(Fasting)
Salat
(Prayers)
Khums/Zakat
(Religious
Dues)
Conclusion: Without a will, the remaining religious obligations of the deceased may remain unfulfilled,
thus causing the deceased distress in the Hereafter.

2. INTERVENTION AND BUREAUCRACY
OF AUTHORITIES
May have
tax and
legal
implications
Government
will appoint
someone to
resolve issue
Conclusion: Without a will, the door is left open for a non-Islamic authority to distribute the estate of the
deceased according to its own framework and not Islamic rulings.

3. SECURITY AND WELL-BEING OF
SURVIVING FAMILY MEMBERS
Others whom
you wanted to
gift something
to may never
get what you
intended
Siblings and
other family
members may
fight for
property
Legal inheritors
may not
receive their
rightful
inheritance
Estate will be
tied up in a
court-of-law
unnecessarily
Conclusion: Having a will ensures that the surviving family members are cared for, close friends receive
what you wanted them to have, and that all receive their rightful dues as laid down by Islamic law.

4. THE WISHES OF THE DECEASED
MAY NOT BE HONOURED
Gifts of
sentimental
value may not
reach those
you intended
Extras from
your estate
may not go to
those whom
you wish
1/3 which you
could spend
as you wish
will not be
done
Conclusion: Without a will, it is possible that the wishes of the deceased would remain unfulfilled.

5. ACTS OF GOODNESS AND CHARITY
MAY NOT BE PERFORMED
Charity and cash
contributions and
other acts of
goodness may
not happen
Contributions of
tangible
property to
religious centres,
etc… may not
be carried out
Conclusion: Without a will, such wishes may not be known, or may not be honoured and fulfilled.

6. JEALOUSY AMONGST SURVIVING
FAMILY MEMBERS
Rightful
inheritors may
not receive their
fair share which
will cause
resentment
Sibling fights
may take place
for the portions
of the estate
Conclusion: A clear will can help to avoid this sad situation.

7. PEACE OF MIND IN ONE'S FINAL
DAYS
Unneeded
stress while on
the death bed
of what will
happen
afterwards
No peace of
mind –
worrying about
what will
happen after
death
Conclusion: A will can provide peace of mind and satisfaction that one has discharged their religious
responsibility.

THE CALL TO RETURN…
“Indeed we are all
from Allah and back
to Him is our return.”
[Ref: Qur'an - 2:156]

DEATH AND THE TRANSFER OF OUR
ESTATE
While alive, we owned “stuff”,
however when we die, everything
which was “ours” is now held “in
trust”. It belongs to others and as
Muslims, we need to ensure that
they get what is their right.

DIVISION OF THE ESTATE
Islam allows you the absolute right to distribute up to one-third of your estate
provided you make a will.
Must be
distributed
according to the
laws of Islam
(Shari'ah)
Your
absolute
control

DISCRETION OF THE ONE-THIRD
Can be used for the fulfillment of any missed prayers, fasting and hajj.
To cover any outstanding loans and debts - owed to the bank, people.
For charitable purposes – building or maintenance of Islamic centres, propagation of
the faith, humanitarian efforts.
For giving to those (relatives or possibly close friends) who have no share in the
estate.
For giving to those relatives whose share is less and you feel may need more.

LAPSED (QADHA) PRAYERS – 1/2
Ruling 1370. If one's father has not performed his prayers and
he could have made them up, in the event that he did not fail to
perform them due to outright disobedience, then based on
obligatory precaution, after the father's death his eldest son
must either perform them himself or hire someone to perform
them. The qada' prayers of one's mother are not obligatory on
him to perform, although it is better that he does.

LAPSED (QADHA) PRAYERS – 2/2
Ruling 1372. If the eldest son knows that his father had qada'
prayers but doubts whether or not he performed them, then
based on obligatory precaution, it is obligatory on him to
perform them.
Ruling 1374. If a dying person makes a will that someone must
be hired to perform his qada' prayers, and if his will is valid, it is
not obligatory on the eldest son to perform them.

WHAT IS AN “ESTATE”?
Cash
ALL Investments
(RRSP, RESP, GIC,
etc…)
Stocks, Bonds,
etc…
Jewellery
(watch, ring,
necklaces, etc…)
Cars and other
vehicles
Anything which
has any
monetary value

WHAT IS NOT PART OF THE “ESTATE”?
Property owned in
partnership (with
spouse or others)
Cash or investments
owned in
partnership (with
spouse or others)
Life-Insurance
Policy

PATERNAL UNCLES
AND AUNTS AND
THEIR CHILDREN
MATERNAL UNCLES
AND AUNTS AND
THEIR CHILDREN
GRANDPARENTS,
SIBLINGS AND
NEPHEWS AND NIECES
PARENTS AND
CHILDREN
SPOUSE All of the divisions of the
2/3 of the estate for the
eligible inheritors are
determined by Allah in the
Qur'an.

JOINT ACCOUNT & PROPERTY – 1/2
Canadian Law: Upon death of one spouse,
the money or the property (house and land)
transfers ownership to the surviving spouse;
This is NOT IN LINE with the rules of
ISLAM.

JOINT ACCOUNT & PROPERTY – 2/2
Islamic Law: With the death of the husband (if he is the
owner of the house with his wife), half of the house remains
the property of the surviving spouse but the other half
becomes part of the estate [and in addition, the wife does
not inherit the land according to Islamic rulings].
What is the solution?

WIFE’S SHARE IN REAL-ESTATE - 1
1. In most instances, the house is a joint-ownership in which the husband and wife EACH own 50% of the
house (land + building), however In Islamic law, wife DOES NOT inherit the land, only the building (and
that too her share of the percentage of the building).
2. In common ownership, the wife is a 50% owner of the house and the land; the other 50% is that of the
husband from which she would, technically, only inherit 6.25% of the HOUSE (and 0% of the land it is
on).
3. Thus in the end, the wife owns 56.25% of the house and 50% of the land.
What to do in this scenario?

A. GIFT the house to your wife during your lifetime
with the CONDITIONAL GIFT (in case of divorce the
gift is null and void).
 As long as the couple stay married and the husband dies
first, then the wife automatically becomes the owner –
according to Islamic law.

B. If the value of 50% of the house and the land is LESS the 1/3 of the
estate, then write the entire house to the wife.
 Example: If house is worth $300,000.00, then 50% of it is $150,000.00. If
the husband's estate is worth $500,000.00 (after all legal expenses), then
1/3 = $165,000.00. As the house value is LESS than the 1/3 portion, the
wife can be gifted the house from the 1/3 portion (she is then free to keep
or sell/downsize, etc).

C. If the value of the 50% of the house and the land is MORE the 1/3 of the
estate, then CONFIRM with all heirs (parents, children, etc…) that you wish to
write the entire house for the wife and if all agree, then this is legal and
binding.
 Example: If house is worth $600,000.00, then 50% of it is $300,000.00. If the
husband's estate is worth $300,000.00, then 1/3 = $100,000.00. As the house
is MORE than the 1/3 portion, confirm at the time of writing the will.

RIGHTS IN ISLAM
Divinely-
Ordained Rights
Socially-
Constructed Rights

WHY DOES THE WIFE GET LESS?
Two Reasons [in the ideal situation]:
 She can marry again and new husband is responsible for her;
 Children are obligated to take care of their mother if she becomes a widow.
To alleviate instances in which the wife needs more, ensure that the one-third
clause is used wisely.

USING THE 1/3 OPTION WITHIN THE
FAMILY SYSTEM
Wife Son Daughter Personal 1/3
WITHOUT THE 1/3 OPTION
12.50% 58.34% 29.16% 0%
WITH THE 1/3 OPTION
8.33% 39.89% 19.45% 33.33%
WITH THE 1/3 OPTION GIVEN TO WIFE
41.66% 39.89% 19.45% 0
WITH THE 1/3 OPTION GIVEN TO DAUGHTER
8.33% 39.89% 52.78% 0

DAUGHTER GETS ½ OF
THE SON’S SHARE? (1)
Its not a sexist issue.
 It is based on financial responsibility placed on certain members of
family in Islam.
 Those who have been given greater burden has been given greater
share in inheritance.
Remember, in Islam, rights are tied to responsibilities.

DAUGHTER GETS ½ OF
THE SON’S SHARE? (2)
The son is responsible for his wife and
children.
Daughter becomes a
responsibility of the son-in-law.

EXAMPLE OF INHERITANCE
Details Amount
TOTAL ESTATE $100,000.00
Funeral Expenses $10,000.00 ($90,000.00)
Various Personal Loans and Debts $30,000.00 ($60,000.00)
One-Third for Personal Usage $20,000.00 ($40,000.00)
INHERITANCE of WIFE $5,000.00
INHERITANCE of SON $23,333.33
INHERITANCE of DAUGHTER $11.666.67

VARIOUS IMPORTANT POINTS

WHAT IS AN EXECUTOR / EXECUTRIX?
Administrating an estate can be an enormous amount of
work. That is why it is so important that you think carefully
before you name an executor (estate trustee).
Your executor/executrix—or executors—will be responsible for
dealing with all your legal and financial matters and ensuring
that the provisions of your Will are carried out. Because of this
time commitment and the financial and administrative duties
involved, your executor(s) needs to have the following traits:

TRAITS OF THE EXECUTOR / EXECUTRIX
Must be a Muslim;
Be someone you trust completely—such as a spouse, adult child or close friend and is
impartial and fair;
Be of the age of maturity (baligh) or capable to serve as your executor when needed;
Have the talent, time and interest to be your executor;
Grant his or her permission before you name this person as executor in your Will;

GUARDIAN FOR MINOR CHILDREN
In your Will you can name the person you want
to serve as your minor children’s guardian should
something happen to both you and your
spouse. This person would be responsible for
your children’s physical care, health care,
education, religious upbringing and general
well-being [at least] until they reach 18 years
of age.

GUARDIAN FOR MINOR CHILDREN
If you don’t name a guardian, there may be
dispute among family members as to who is
best suited to act as guardian, resulting in a
need for court or provincial government
involvement.

SOCIAL MEDIA AND E-MAIL
1. Consider what you want to happen to your E-MAIL
accounts, and Social Media profiles, etc...
 Determine whether you want to grant access to your spouse, executor,
friend, etc… after your death.
 Include details in your Will of ALL accounts (names and passwords).
 Also remember to think about things like Paypal accounts and any on-
line digital only banking platforms (and ensure they are also
tabulated in your estate).

ORGAN DONATION
Rules regarding organ donation and transplantation need to
be covered in one’s Will as the human body, in life as well as in
death, is governed by Divine laws in Islam.
There are certain limitations on what we can and can’t do
with our bodies.

ORGAN DONATION DURING LIFE
The late Ayatullah al-Khu’i had different verdicts on “major organs” and “minor organs”. He
had allowed donation of minor organs but disallowed donation of major organs.
Ayatullah Sistani, however, does not differentiate between the minor and major organs. As
long as the donor would not be seriously handicapped himself or herself, there is no problem
in donating one’s organ, minor or major. Therefore, donating a kidney also would be
permissible provided the donor has another healthy kidney.
Ayatullahs Nasir Makarim Shirazi and Sayyid Ali Khamene’i concur with this view.

ORGAN DONATION AFTER DEATH
According to the late Ayatullah al-Khu’i, donating some of the organs (whether
minor or major) after the death is permissible provided you have expressed your
intention clearly in your will.
However, Ayatullah Sistani do not recognize the validity of such a will at all; and,
therefore, donating an organ after death is not permissible.

LIVING WILL – 1/3
A Living Will provides instructions regarding your medical care if
you were to become ill or incapacitated and unable to state your
wishes. Through a Living Will, you may indicate types of treatment
you do or do not want to receive. You may also appoint someone
to make your health care decisions if you are unable to make them.

LIVING WILL – 2/3
Especially important for end-of-life choices (doctor assisted
suicide, etc). A Living Will can help your family make the best of a
difficult situation because you have chosen people whose
judgment you trust to make your health care decisions AND you
have given them guidance about those decisions.

LIVING WILL – 3/3
You should create your Living Will with the
assistance of a lawyer and discuss it with
family members and physician.

WHY A POWER OF ATTORNEY?
If you were to suddenly become incapacitated, by a stroke for
example, and you did not have a Power of Attorney, your family
would have to apply to the provincial government or courts to have
someone appointed to manage your affairs. This could be an
expensive and lengthy process, often taking weeks or even months.

POWER OF ATTORNEY – 1/3
Without a general Enduring Power of Attorney, your
family members could not manage your financial affairs.
Your spouse wouldn’t even be able to access your financial
accounts unless these were held jointly.

POWER OF ATTORNEY – 2/3
An Enduring Power of Attorney gives individual(s) you
name the authority to manage your affairs. It can be
broad reaching in scope—covering all the things you
would normally do—or it can be narrow (limited to bank
accounts or investments only, for example).

WHO TO APPOINT AS POWER OF
ATTORNEY – 3/3
You can appoint an adult child, spouse, good
friend, trust company or another family
member.

FUNERAL ARRANGEMENTS
1. Who will conduct ceremony? Will it be the Resident Alim or do you want
someone specific to perform your Ghusl, Kafan, Salat al-Mayyit, etc?
2. Where do you want to be buried? Do you have a specific plot already
reserved?
3. What happens if you die in another country? Do you want to be buried
there or be flown to another city/province/country?

OUR EVENTUAL END…

ENSURE YOUR JOURNEY TO THE NEXT
WORLD IS AS SMOOTH AS CAN BE…
Write a Will and ensure that
everyone’s rights are maintained
with it

REFERENCES FOR THIS PRESENTATION
1. Writing an Islamic Will (Sixth Revised
Edition) by Sayyid Muhammad Rizvi
(www.Islamic-laws.com)
2. RBC Insurance Will Planning Website
(http://www.rbcinsurance.com/insuranceneeds/
insurancewill/will-planning-guide.html)
3. Shia-Wills website (www.shiawills.com)
4. Wills Presentation by Shaykh Jaffer H.
Jaffer (sheikh.jaffer@masumeen.org)

HAVE MORE QUESTIONS?

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