Sharia Succession Law: An Introduction

It’s easy to think of Will-writing strictly as a legal measure designed to distribute possessions according to a person’s preferences after their passing. But, in our magnificent multicultural world, there are often secular values or religious principles underpinning these desires. Observers of the Islamic faith abide by Sharia Law when it comes to inheritance and property distribution, allowing them to showcase their spiritual values via their Will.

Teachings of the Qur’an

As the central sacred scripture of Islam, the Qur’an lays down the law and commandments for Muslims, as well as codes for their social and moral behaviour. The holy text states:

It is decreed upon you if any of you feels death approaching, should he leave anything of value, a Will should be written…

Under this religious philosophy, wealth does not belong to any person, but instead belongs to Allah (the one and only God in Islam). Ensuring the proper distribution of a person’s wealth upon their death therefore constitutes an act of worship, and so every Muslim has a duty to make a Will.

We might just add that you don’t have to wait until your final days to do so!

Distribution of the Deceased Estate

The Qur’an – particularly the Mawarith schedule – spells out the specifics of how a Muslim should distribute their deceased estate. The following process must be adhered to:

• All funeral expenses are paid, then the deceased’s debts. This includes outstanding charitable obligations, which often form part of another worship practice called Zakat, where a proportion of wealth each year goes to charity. A testator should, in their Will, stipulate how these debts should be paid (and whether assets should be sold in order to do so).
• A third of the estate can be distributed to anyone of the testator’s choosing (even non-Muslims), so long as they are not already heirs of the estate. This proportion of the Will that can be distributed as the testator sees fit is called the Wasiyyah.
• The remaining two-thirds of the estate is passed down to beneficiaries who are Muslim and related to the testator through biology or lawful Islamic marriage. These primary beneficiaries (usually the testator’s surviving parents, spouse and children) all receive designated proportions of the estate.

Primary Beneficiaries and the Fara’id (“Fixed Shares”)

Asset distribution in Sharia-compliant Wills gets especially interesting when we consider the way in which the Fara’id (also referred to as the Mirath) is applied. These “fixed shares” assigned to each heir keep the wealth distribution super transparent, and everyone knows exactly what they will receive!

The fixed shares of the two-thirds portion of the estate – reserved for spouse, parents and any children – are divided into the following fractions:

• A surviving husband receives one half of the assets involved, or one fourth if he has children.
• A surviving wife receives one fourth of the assets involved, or one eighth if she has children.
• If still alive, the deceased person’s mother and father will receive one sixth of a share each.
• Any remaining shares will go to children, however Sharia Law commands that twice as much property will go to male children as to any female children. So, sons will receive two shares for every share that a daughter gets.

Seems a bit rough on the girls, but the ‘gendered’ inheritance rules are consistent with the Islamic notion that the male is responsible for the entire family. Under Sharia Law, the male’s share is therefore given on the basis that he will spend it on the family accordingly, and keeps him fiscally fierce for his female dependents.

Other Elements of a Sharia-Compliant Will

Many Muslims might choose to include instructions in their Will for the proper treatment of their body after death. They may request the executor makes preparations for washing and shrouding the body according to Islamic practice, or specify wishes for an Islamic funeral procession, funeral prayers and burial.

The testator can also state that there should be no autopsy unless required, in line with the teachings of the Qur’an. The executor is the ultimate decision-maker when it comes to matters relating to burial or funeral arrangements, so it should be noted that these sorts of instructions are not legally binding.

Sharia Succession in an Australian Legal Framework

There are of course significant cultural differences in the degree of Will-makers’ testamentary freedom between Sharia succession and Australian succession laws. However, Australian succession law does recognise any valid Will. So, a Muslim is entitled to have their estate administered in accordance with Sharia Law provided their Will meets the legal requirements for validity.

You can write down how you would like your wealth to be passed to those remaining in this world, regardless of your credo!