They say the most painful goodbyes are the ones that are never said and never explained. But what about those that were said, written and drafted on paper in the form of a will? Surely it’ll be just as painful when you realise that your deceased husband or father had left nothing to you. You begin questioning yourself, how much did he love you?
Fortunately, if you’re a Muslim, Syariah Laws will have you covered. While the whole wealth of a person can be distributed per one’s wishes through a civil will, a Muslim’s inheritance is pre-determined through faraid. However, a faraid isn’t a will per se. So if you’re a Muslim? Can you still draft a will?
Can Muslims Write a Will?
Muslims are highly encouraged to draft a will or wasiat. The will is executed upon death, once payment of debts and funeral expenses of the deceased had been taken care of. There are several things that you should note when writing a Muslim will.
Similar to a civil will, the Muslim person writing the will must be at least 21 years old and is of sound mental capacity. It would also be advisable to obtain a document of a Lasting Power of Attorney (LPA). An LPA allows you to appoint someone that you trust to make decisions for you in the event you are unable to make decisions for yourself due to “an impairment of, or a disturbance in the functioning of, the mind or brain.”
The writing of a Muslim will must be witnessed over two other people, which must be male Muslims that are not beneficiaries of the will. Aside from the two witnesses, you must also state an executor to carry out your will upon your death.
Also, the amount to be willed away should not be more than one-third of your total assets. Anything beyond that value will be disregarded when the will is executed. So if you had willed away all your assets to a friend, for example, the transfer of asset would not go through as it is against Muslim law, unless agreed by the faraid heirs.
Lastly, the beneficiaries of this will cannot be any of the faraid heirs as they will be obtaining their shares of the inheritance through faraid. Parents, spouse, children, grandchildren, siblings, half-siblings, relatives will all have a stake at the faraid distribution.
Is there any way out of the Faraid guidelines?
Only a Muslim will have to adhere to these conditions when drafting a will. If at any point you were to renounce Islam as your faith, then civil laws will apply to you when drafting and executing your will instead.
What is Faraid then?
Faraid can be understood as the distribution of the estate of a deceased person amongst his or her heirs in accordance with God’s decree in the Holy Quran and according to hadith. In Singapore, faraid is governed by Section 111 and 112 of AMLA which requires the estate of ‘any Muslim person domiciled in Singapore dying intestate to be subject to faraid, save for where “Malay custom” apply.’
This, however, excludes people who do not fall under the established faraid categories; non-Muslims and adopted or illegitimate child. If you wish to put someone from these categories into your will, it is entirely possible, as long as the will adheres to the conditions stated above. What this means is if you have an adopted child, for example, he or she would not be able to stake a claim to the faraid assets. The only way that they can have a portion of your property is if you bequeath them via ‘gift’ through your will. You should approach a good lawyer to draft the Muslim will with you to ensure that all aspects of the will are properly covered in a legal sense.
As faraid is a pre-determined distribution of the deceased asset’s, there are instances where some people would attempt to get around the rigid faraid requirements. For example, one could attempt to go about the faraid restrictions by making a ‘vow’ or a nuzriah to a loved one by placing a term in their will.
This is when the ‘vow’ comes to effect at a set time before the death of the deceased, I.e three days before the deceased death and one day in the case of accidental or sudden death. Thus far, such testamentary nuzriah does not seem to not be valid under Singapore case law. It must be noted that the gift, should not deprive or provide additional concessions on a faraid heir of their rights.
As such, the properties bequeathed under a testamentary nuzriah will still fall under the will requirements above, for instance, both the formality requirements under the Wills Act and the Islamic requirements of the wasiat.
What is Considered an Estate?
Estate is described as all the assets and liabilities of a deceased person. As such the things that you can will away are as follows:
- immovable property such a piece of land, building, private house, plantation;
- Movable property such as cash, jewellery, vehicles. Etc;
- money owed to a deceased person;
- property that has been mortgaged or pawned by a deceased person and that is redeemable;
- property purchased by a deceased person during his lifetime for which payment has been made by him but which has not been delivered to him until his death;
- maskahwin that has yet to be paid to a wife until the wife’s death;
- other assets such as savings, savings in Central Provident Fund, shares, unit trusts, bonds and insurance policies approved by Islamic law;
- all the property described above in and outside the residence of a deceased person; and
- all other assets of material value.
There are instances, however, when Muslim law and the Civil law will clash when the particular estate of the deceased should be distributed under faraid. As a general rule, when this occurs, civil law will take precedence, unless the legislation under the civil law expressly excludes application to Muslims. These properties would include matters such:
1. Jointly Owned Properties
Properties registered under the Land Titles Act will fall under the purview of Civil Law, and as such, the right to the property will be passed on to the surviving joint owner upon their death as seen in Shafeeg bin Salim Talib v Fatimah bte Abud
2. Nominated CPF Money
If the deceased has made a CPF nomination in favour of someone else, the CPF money will solely belong to the nominee. The CPF money will not be considered as part of the deceased estate and as such, will not have to be distributed under faraid In essence, there are two clear choices on what a Muslim can do with their CPF money; the first being to leave it without any nomination so that it will be distributed via faraid, or nominate it to someone, and they will get the whole lot under hibah or as a gift, but only when specific fair needs arise.
3. Life Insurance Payouts
Under section 73 of the Conveyancing and Law of Property Act, the life insurance policies of a deceased person do not form part of their estate. These policies would belong to the people that the deceased named as their nominees.
The faraid heir will have to forfeit his or her claim if they had caused the death of the deceased or if they do not practice Islam as a faith, either due to their renouncement of Islam or that he or she was not a Muslim altogether. Also, subject to section 118 of the Administration of Muslim Law Act (AMLA), Muslim married women may, with or without the concurrence of their husbands, by will dispose of their property.
If the deceased leaves no faraid heirs behind, the estate will go to the BaitulMal, an Islamic charitable trust administered by MUIS.