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[quote]Wa alaikum assalam sister Henna

Firstly, I am not a specialist in Wills or Probate as I am a Family Lawyer and therefore the views I express below are subject to the views of a specialist Probate Lawyer. Equallly, I am a student of Islam and therefore my views in regards the requirements of Islam are also subject to the views of others who know better. Allah knows best.

Islamic Will is currently my favourite topic as I have recently discovered that it is compulsory for us all to prepare one, particularly in the UK for the following reasons:

The Messenger of Allah (saws) said: "It is not permissible for any Muslim who has something to will to stay for two nights without having his last testament written and kept ready with him" (Bukhari 4:1) He (saws) also said: "He who dies leaving a will has died following a (right) path and a Sunnah; he has died with taqwa and testifying to the true faith; he has died with his wrong actions forgiven." (Mishkat)

There are many more Ahadiths confirming that the preparation of a will is compulsory for the Muslims who have something to will. In the UK most of us do, even if it is a few hundred pounds.

In addition, Allah (swt) has decreed that the estate of the deceased be distributed amongst the heirs in a certain way and therefore as a Muslim it is essential that he or she takes the necessary steps to ensure that his estate is distributed in accordance with Allah's command and not his own preferences or the law of the country in which he or she dies. The only way to achieve this would be to prepare an Islamic Will without delay.

In the UK, if a person dies without leaving a will, he would be regarded by law as having died intestate and therefore his estate would be divided in accordance with the intestacy rules which has no relationship with or regard to Allah (swt's) command.  For example, the first £125,000 or thereabouts and all of the personal chattels would go to the surviving spouse. The remainder of the estate would normally be divided into two equal parts: one part to be shared by all of the children equally and the other part is to be enjoyed by the surviving spouse for life and upon his or her death the children will receive the remainder in equal shares. This is a simple calculation and things may be slightly different depending on the individual circumstance. It should be appreciated that this is far from what is commanded by Allah (swt).

On the other hand, a person in the UK is free to prepare his or her own Will although it must comply with the formalities required under the Wills Act 1809. In fact it is recommended. The testator may therefore leave his or her estate to whomever he or she likes. However, this is subject to the discretion of the Court if and only if one of the beneficiaries or dependants make an application under the Inheritance (Provision for Family and Dependants) Act 1975 complaining that they should have but did not receive a share or that they did not receive enough.

Insofar as the preparation of an Islamic Will is concerned there may be some practical difficulties. For example, when the will is prepared, the number of children or the predicted number of beneficiaries may not remain the same when the testator dies. In Islam the amount or percentage received by a particular heir depends on the number of other heirs and their gender. For this reason what the testator may will at the time of writing the will intending that his wishes accord with Allah's command may not necessary be the case when he dies because he may have had more children or one of his parents may have died or one of his children may have died since then which would have a knock on effect on the allocation of shares and the Courts of England and Wales may not readily agree to a variation to the terms of the Will for this reason.

I am currently in the process of preparing my own Islamic Will and instead of specifying the shares for the above reasons, the wording of my will is to the effect that upon my death my Executors are to jointly agree and seek the opinion of an Islamic Scholar and distribute my estate in accordance with his advice. I am not sure whether and to what extent the Courts would approve this but I very much doubt that my heirs would complain thereby excluding the Court's involvement in the same. Allah knows my intentions.

If anyone is interested, I am aware of a firm of solicitors in London who do prepare Islamic Wills. I can provide details to any interested parties.

Regards
Saif[/quote]

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