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Will planning and Shari’a law

Britain is set to become the first non-Muslim country to sell a bond that can be bought by Islamic investors.

Britain is set to become the first non-Muslim country to sell a bond that can be bought by Islamic investors. Prime Minister David Cameron has announced an Islamic bond worth £200m called a Sukuk. This is a form of debt that complies with Islamic financial law. He also indicated plans are in place for a new Islamic index on the London Stock Exchange.

The gilt, announced by Mr Cameron at the World Islamic Economic Forum (WIEF) in London, is compliant with Shari’a law of Islam because it avoids the prohibited use of RIBA or interest. It will be structured to bring in a fixed return from a tangible asset or service, and without charging interest, in accordance with Islamic financial principles.

This is welcome news as Muslims living in the UK are faced with challenges if they wish to live in accordance with the Shari’a.

For example, if a Muslim living in England and Wales wishes for their assets to be distributed in accordance with the Sahri’a after their death, they MUST write a Will and that Will must comply with the requirements of English law to be valid.

I am a Muslim. What happens if I don’t draft a Will?

  • If no Will is drafted, then under English law you will be deemed ‘intestate’. This means your estate will be distributed to certain family members in fixed shares under the intestacy rules. These are not the same as those laid down in the Shari’a (two thirds to relatives in fixed shares; one third to whomever you wish). If there are no surviving relatives, then it would ultimately pass to the Crown.
  • If you have been married only in accordance with the Shari’a, you will not be legally married under English law. Therefore if no Will has been drafted, your spouse would be regarded as an ‘unmarried partner’ and would not inherit from the estate.
  • If you were divorced under the Shari’a but not under English law then you would still be regarded as ‘married’ by the English Courts and your former spouse could inherit the majority of the estate, when he/she would not be allowed under the Shari’a.
  • If a Muslim man married a non-Muslim woman both under the Shari’a and English law, and then died intestate, the widow would be entitled to a share under English law but would not be entitled to a fixed share under the Shari’a (although a ‘one third’ specific bequest may be made).
  • If a married Muslim couple have children then both die, then there is no guarantee who will look after the children and the Local Authority may become involved in their care.

Can I draft a Will that will allow my wealth to be distributed in accordance with the Shari’a?

If there are any contradictions between English law and the Shari’a, it is inevitable that English law will always be applied by the Courts. However, as long as a Will is prepared in accordance with legal formalities of English law, then the testator is permitted to leave his estate to whomever he wishes and the English Courts will uphold its validity.

Therefore it is possible to prepare a Will that is compliant with both English Law and in accordance with the Sahri’a. An understanding of both the Shari’a and English law are required, as both require certain formalities and conditions to be fulfilled.

The Wills Trusts Tax and Probate team at Weightmans LLP can provide advice on this complex area. To arrange a no obligation meeting, please contact Paul Horton or a member of the Wills Tax Trusts and Probate team.