Having an Islamic will is of utmost importance when living in a non-Muslim country Photo IslamiCity
South Africa – The Law Society of South Africa (LSSA) National Wills Week is upon us. Between September 12 to 16 the public have the chance to get a will drafted by an attorney, free of charge. Many South Africans and indeed South African Muslims do not have a will. Islam is a comprehensive religion, and it is obligatory for one to have a will in place.
Having an Islamic will, especially when one resides in countries where the Islamic laws of Inheritance are not the law of the land, is vital. The laws that determine the distribution of one’s estate have already been set in stone. Great emphasis has been placed on ensuring one distributes their estate according to these laws.
The requirements of setting up a valid Islamic will
It cannot be stressed how important it is to set up a will, especially living in South Africa. If one passes away without leaving a valid will, your estate will devolve according to the Intestate Succession Act, 1987. This means that your estate will be divided amongst your surviving spouse, children, parents, or siblings according to a set formula. A formula that does not conform to Sharia. To have a valid Islamic will, there are a few requirements just like there are when setting up any will, explained Mohamed Raees Hussain, Attorney at Al Baraka Bank.
“In order for your will to be considered a valid will and to be effective there are certain requirements one must adhere to. Firstly, the person making a will has to be 16 years or older, the will has to be in writing. The will must be signed by the person making the will. That would be your testator (male) or testatrix (female) as well as two witnesses. Your witnesses have to be independent and must be of the age of. 14 years or older. Any changes to the will must be signed by the testator or testatrix and those witnesses. The will has to be dated. This point can’t be stressed enough.”
Dating a will is of utmost importance especially if one has written a will before. The date indicates which is the final will. In respect to an Islamic will, the same requirements will apply but no heirs will be named. This is because Islam has already stipulated how much each person will inherit.
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Gifting assets to children before passing away
It has become the habit of parents nowadays, who have sons and daughters, to gift assets to their daughters to pass away. In accordance to Islamic will, a son usually inherits double than the daughter. The reasons for this are clear. The responsibility to take care of the family will fall onto the shoulders of the son. Gifting these assets while alive is perfectly fine, said Hussain.
“During your lifetime you are entitled to and allowed to do with your assets as you please as those assets belong to you and in terms of the shariah there is no limitation on you for gifting your assets to whomever you wish. Obviously, the male children in those instances [when their parent passes away] would obviously need to take care of certain needs of the female heirs if they don’t have anyone else to do that for them.”
While this is permissible one should ensure they do not treat their children unfairly. It was narrated that An-Nu’man said: “My mother asked my father for a gift, and he gave it to me. She said: ‘I will not be contented until you ask the Messenger of Allah to bear witness.’ So, my father took me by the hand, as I was still a boy, and went to the Messenger of Allah (SAW). He said: ‘O Messenger of Allah, the mother of this boy, the daughter of Rawahah, asked me for a gift, and she wanted me to ask you to bear witness to that’. Nabi (SAW) said: ‘O Bashir, do you have any other child apart from this one?’ He said: ‘Yes.’ Nabi (SAW) said: ‘Have you given him gifts like that which you have given to this one?’ He said: ‘No.’ He said: ‘Then do not ask me to bear witness, for I will not bear witness to unfairness.’” (Sunan an-Nasa’i 3682)
While one can give a gift to their children, they should ensure they do not become unfair. It would be best to tell the rest of their children why this gift is being given to a particular child. In this way, jealousy and hatred will not spread amongst the siblings.
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Practical considerations when making an Islamic will
Death is one of the few certainties in life. Every person will one day have to pass away. Having a will in place helps the family in a big way. To make life even easier for the family, there are a few things one should keep in mind, said Hussain.
“Providing a copy of your will to your executor as well as your family members and advising them where the original is so that it can be easily retrieved upon your death. Preparing and maintaining a schedule of your assets and liabilities which will be a guide for your executor in the administration of your estate. This will alleviate the pressure on your family to compile a listing of your assets and liabilities. This should include bank account details, a list of properties you own, any insurance policies, pension, and provident funds and alike. You should prepare a file with these documents together with your ID and marriage certificate, if you are married, together with copies of your spouse’s ID and heirs.”
Al Baraka Bank will be embarking on a will campaign that will take place in Durban, Gauteng, and Cape Town. Death is something that can strike at any time. Having a will ready fulfils the obligatory act and will also ensure one is not punished in the Hereafter for not distributing their assets in the correct manner. This week is the perfect time to get this important aspect of Deen completed and ensure peace of mind for your family.
