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Essentials of the Islamic Will
A will is a legal document that gives the executor of that will direction on how the testator’s property should be distributed. In the Islamic context, however, the distributions are not at the discretion of the individual; rather, they are dictated in detail in the Qur’an and Hadith. Therefore, under Shariah law every individual’s estate would automatically be distributed in accordance with the rules outlined in the Qur’an and Hadith.
While the laws of succession, whether intestate or not, are strictly structured by Shariah law, a dispensation does allow for the distribution of a portion of the estate as the decedent pleases by way of a will, as established by Hadith. According to this tradition, and several other similar narrations, the Prophet Muhammad (peace be upon him), permitted an individual to dispose of up to one-third of his or her property to anyone not defined as an heir under Shariah law. This distribution, known as the wasiyya, allows an individual to leave bequests for charitable organizations, non-relative friends, non-Muslim relatives, adopted children, or anyone not recognized as a legal heir under Shariah law. In the aforementioned example, under Shariah law H cannot leave an additional wasiyya bequest to W since she is already set to inherit a one-eighth share. However, if W was not a Muslim, then she would not be entitled to a one-eighth share under certain interpretations of Shariah law. Assuming in the present example that W could not inherit from H due to her difference in religion, H could make a wasiyya bequest to W for an amount up to one-third of his possessions.
Thus, the Islamic will is essentially a three step process. First, before any distributions are made, Shariah law requires that all of the decedent’s debts and expenses be settled before any of the estate be distributed amongst his or her heirs. Once those debts are settled, an individual may bequeath an amount of up to one-third of his or her estate by way of the optional wasiyya to any person or institution who will not inherit under the normal Shariah intestacy laws. Finally, once debts and expenses are settled and the optional wasiyya has been subtracted, the remaining estate is distributed in accordance with the strict guidelines established in Shariah law.
An Islamic Will in U.S. Jurisdiction
It is absolutely clear that U.S. courts will not recognize a mere desire to have a relative’s estate distributed according to Shariah law principles—even if such desire is expressed through a signed or even notarized document. Quite practically, a U.S. judge cannot be expected to sit and interpret Islamic law. Moreover, a judge will not apply a document that is not legally binding upon the court. Thus, in order to have an Islamic will enforced in a U.S. court, one must make sure that the document is legally valid and that the instructions are clear and unambiguous.
All American jurisdictions require certain formalities before a will is legally acceptable. For example, in New York, the formalities are as follows:
(1) The testator must be over 18 years of age;
(2) The testator must sign the will;
(3) The signature must appear at the end of the document;
(4) There must be at least two attesting witnesses;
(5) The testator must declare to the witnesses that the document is his/her last will and testament;
(6) The testator must sign or acknowledge is signature in the presence of each witness;
(7) The Will must be executed within 30 days after the first witness signs.
Requirements for other jurisdictions may vary slightly (e.g. some jurisdictions may allow more or less time to execute the will). In very few jurisdictions, such as New Jersey, a holographic will—an unwitnessed will in the testator’s handwriting—is still legally acceptable. Although legally acceptable, such wills are frequently subject to contests and challenges after the death of the testator, and it is therefore preferable that a will comply fully with the aforementioned formalities so as to avoid contestation.
Consequently, an Islamic will must be drafted with these same formalities in order to have any force in a U.S. courtroom. In addition to these requirements, the bequests must be stated clearly, explicitly identifying individuals and the quantities they are to receive. It is not sufficient to state: “This estate shall be distributed according to Islamic Shariah law.” Instead, the will must state that it is an Islamic will and then it must recite all the beneficiaries and their respective shares. The wasiyya bequest and Islamic inheritance distributions must both be set out in this document as there is no distinction in U.S. courts between wasiyya and inheritance.
© Omar T. Mohammedi, Esq., Law Firm of Omar T. Mohammedi, LLC, 233 Broadway, Suite 801, New York, New York 10279. All rights reserved.