An Islamic Will is different in several respects from a “civil” Will, which I shall refer to as “Will” for ease of reference. I will not be discussing the features of a Will because there is enough literature about it; I will only refer to it for comparative purposes. My purpose here is to provide a short guide contrasting the significant features of a Will and an Islamic Will.
A Will is regulated by the Wills Act 1959. An Islamic Will, however, is regulated by State enactments. However, not all States have an Islamic Will enactment. The States that do are Selangor (1999), Melaka (2005) and Negeri Sembilan (2004). Even though a State does not have such a law, I contend that Muslims in those States can still prepare an Islamic Will because Syariah law recognizes such an instrument.
The first significant difference is whilst a non-Muslim testator has full discretion to whom, what, and how his property is to be distributed, a Muslim testator’s discretion is circumscribed. A Muslim testator may only will up to a maximum of 30% of his or her estate; so a Will that gives more than 30% may be invalid or the excess may be reapportioned depending on the facts of the case.
The second significant difference is that a Muslim testator may only will up to 30% of his estate to those who would not inherit from the testator by way of Fara’id. Those who would inherit comprisers the testator’s immediate family members: the testator’s father, mother, spouse, and children. I will refer to them as Fara’id beneficiaries. Generally, these family members are the ones that would inherit automatically under the Fara’id, which is the apportionment of a testator’s assets according to Islamic principles.
This means a Muslim testator cannot name the Fara’id beneficiaries in his Islamic Will. Doing so may render the Islamic Will invalid. If a Muslim testator wished to will away part of his estate to a non-Muslim, he can make provisions for that in an Islamic Will, and that is legal.
Having said that, in both the cases above, if the Fara’id beneficiaries agree or do not object to more than 30% being given or for the Fara’id beneficiaries being named, then it will be allowed. So although Syariah law prescribes how the inheritance is supposed to happen, the Fara’id beneficiaries may agree otherwise. Their consent is important because they are effectively giving up the portions they are entitled to.
The third significant difference is the witnesses to the Islamic Will has to comply with Syariah law, which means a Muslim male of majority age, or two Muslim women of majority age to take his place. So a non-Muslim cannot be a witness to an Islamic Will. For Wills, so long as the witnesses are of majority age and sound mind, they suffice. In both cases, there may be two or more witnesses.
The fourth significant difference is that a Muslim testator cannot will away something haram (forbidden). For example, a Muslim testator cannot bequeath is treasured whiskey collection (assuming he has one) to his family member or anyone because alcohol is forbidden.
The fifth significant difference is that a Will must be in writing. If it is not, then it will be invalid. An Islamic Will however can be made orally or by sign language provided it is witnessed by suitable witnesses, in addition to being made in writing.
In my experience, I have found that many Muslims do not have sufficient understanding of how an Islamic Will operates. The features above show there are restrictions to an Islamic Will which are not applicable to a Will. For these reasons, I recommend those that wish to have an Islamic Will prepared to consult a Syariah lawyer or a civil lawyer familiar with the relevant Syariah enactments to ensure their testamentary wishes are legally secured.