NZ Wills and Islamic Inheritance – Part 1 : M Abdur Rahman
NZ Wills and Islamic Inheritance – Part 1
In New Zealand Once you die, everything you own, and everything you owe, is called your estate. This area of law is covered by the Wills Act 2007. This Act gives a WILL-MAKER significant powers. As per NZ Law your WILL contains your instructions about what you want to be done with your property after your death. Who and how will get your estate. As far as you and your family are concerned, it could be the most important paper you ever signed. Remember, it cost few monies to prepare but it saves from lot of hazards and cost.
NZ WILL is significantly similar with Wasiyat (bequeath) in Islamic Jurisprudence where the deceases has right up to 1 / 3 (one third) to gift to a relative or others who will not be receiving inheritance from deceased.
Distribution of deceased property is completely prescribed in Islamic Jurisprudence and not depends on WILL. On a Muslim it is mandatory to distribute his or her property as directed by Islamic jurisprudence likewise five times prayer and Jakat. Avoiding of the prescribed distribution is major sin (kabira gunah) and will be entitled to enter hell fire wherein he or she abides eternally and s/he will have a humiliating punishment. I will not be discussing the Islamic calculation or the division of the property since the calculation will vary depending on the totality of the wealth and the number of heirs the testator may have.
The countries where the Islamic jurisprudence is in force, deceased property will be distributed and transferred automatically to the successors as prescribed Shariyah Law. But Shariyah Law is not enforceable before any Court of Law in NZ. Will is the only way to transfer and distribute the deceased property in New Zealand. Therefore who dies without WILL deceased estate will not be automatically distributed among the deceased family member(s).
Al Qur’an: In surah An Nisa verses 11-12 Allah the almighty stated about few portions of inheritance and in verses 13-14 stated reward and punishment for that.
Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he [may have] made or debt. Your parents or your children – you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah. Indeed, Allah is ever Knowing and Wise. (Surah An-Nisaa: 11)
And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for one fourth the wives is if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah, and Allah is Knowing and Forbearing. (Surah An-Nisaa: 12)
These are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. (Surah An-Nisa: 13)
And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment. (Surah An-Nisaa: 14)
Hadith:
حَدَّثَنَا عَبْدُ اللَّهِ بْنُ يُوسُفَ، أَخْبَرَنَا مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ ـ رضى الله عنهما ـ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ “ مَا حَقُّ امْرِئٍ مُسْلِمٍ لَهُ شَىْءٌ، يُوصِي فِيهِ يَبِيتُ لَيْلَتَيْنِ، إِلاَّ وَوَصِيَّتُهُ مَكْتُوبَةٌ عِنْدَهُ ”. تَابَعَهُ مُحَمَّدُ بْنُ مُسْلِمٍ عَنْ عَمْرٍو عَنِ ابْنِ عُمَرَ عَنِ النَّبِيِّ صلى الله عليه وسلم.
Narrated `Abdullah bin `Umar Allah’s Messenger (ﷺ) said, “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.”
Hazrat Anas (RA) related that the Prophet (PBUH) said: “If anyone deprives an heir of his inheritance, Allah will deprive him of his inheritance in Paradise on the Day of Resurrection.” (Suna Ibn Majah- no: 2703)
Hazrat Abu Huraira narrated that the Prophet (PBUH) said: “A man may do the deeds of the people of goodness for seventy years, then when he makes his will, he is unjust in his will, so he ends (his life) with deeds and enters hell. (Sunan Ibn Majah).
What If I Die Without A WILL? (Known as dying “Intestate”) in NZ:
Who dies without a WILL the Administration Act 1969 determines who is entitled to apply to be the administrator of the person’s estate and how the assets are to be distributed. With an intestate estate, the Court appoints the administrator(s). Moreover, if anyone dies without a valid WILL it will cause to hazard, cost and time expenses.
NZ law doesn’t prohibit us to follow Shari’ah:
Though the Shariyah Law is not enforceable in New Zealand, the Law of NZ does not specifically prohibit us from writing a WILL compliance with Islamic Shariyah provided that certain conditions to be fulfilled. Due to flexibility of NZ law relating to WILL making, a person can divide and dispose as much he or she wishes. That means NZ law does not set out the rules for the ratio or proportion of the property to be divided, it rather sets out the procedural rules for writing a WILL and, therefore, making it legally valid.
Follow the Procedure for making a valid WILL in NZ law:
During making a NZ WILL compliance with Islamic Shariyah we should not mention anywhere that it is made according to Islamic Shariyah so as to avoid causing unnecessary confusion for NZ judiciary or administration rather than follow the procedural rules to making a valid WILL. The WILL should cover the following but not limited to:
- WILL maker correct name, address, profession
- Trustee & Executor correct name, address, profession, relation to WILL maker
- Beneficiary(s) correct name, address, profession, relation to WILL maker
- Specify the share of each beneficiary, (according to Shariah- binding obligation) (in NZ -fully depends on testator, no binding obligation on him),
- Guardian name, address, profession, relation to WILL maker (if beneficiary (s) is minor)
- Two independent witness
- Initial on each page including Witness
- Witness name, address, profession
- No over writing, cross writing in the WILL
- It will be last WILL & revokes all previous WILL,
Should include the following clause:
- Payment of my funeral expenses.
- Payment of all my debts.
- Payment of written and unwritten Covenants, promises and Bequest (Wasiyyat), if any.
- to pay all duties payable in respect of the whole of my dutiable estate; and
- I direct that the amount of NZ$ ………………………….(in words …………………) be paid to my wife representing the portion of her Mahr (money due to wife on marriage) payment which had been delayed. (if the WILL is made by husband).
- Unpaid compulsory charity (Zakat) for the years before my death. This amount should be calculated from my total estate according to our cultural belief;
- Atonements and compensation (Kaffarah) for unperformed prayer, abandoned fasting, alms giving etc.
- after paying all the expenses mentioned in the above I BEQUEST and DIRECT to distribute the residue including any remaining ready monies of my estate as follows:
- to my daughter …………………………… ……………………………share of the estate
- to my son ………………………………………………………… share of the estate; and
- to my wife …………………………… …………………………… share of the estate.
- that my body be buried.
M Abdur Rahman, Barrister & Solicitor, Avondale Law,
Phone: 09 8208634, Fax: 09 820 8635, Mobile: 0210621746, 1/1660 Gt North Rd, Avondale, Auckland
Published in the 9th Edition – 2018
