Australian Muslims are often obliged to ensure that they have a legally valid Will which conforms to both Australian Law and Islamic guidelines. This is particularly difficult to achieve where key understandings of the cultural, religious and legal needs of Islam are misunderstood by the practitioner tasked with drafting their client’s Will.
Islamic law is not recognised in Australia as we are deemed to be a ‘secular’ nation. Your will, therefore, needs to comply with Australian law for it to be legally enforceable, whilst incorporating the required clauses to ensure that your assets are distributed in accordance with the Islamic rules contained in the Quran.
At Carter Dickens Lawyers, we seek to bridge this gap and have ensured we have services tailored towards these specific needs of our clients. Our ‘Sharia-compliant’, or ‘Islamic Wills’, offer a service which provides legally valid Australian Wills custom-made to satisfy the strict Islamic guidelines following a person’s passing. In particular, we understand the varying requirements with regards to burial arrangements, the distribution of the estate, payment of obligations and the powers of trustees.
By executing a valid Islamic Will, a Muslim can give directions for the executor to make proper preparations for the washing and shrouding of the body. In addition, directions can be made for the funeral procession, funeral prayers and the burial. This allows a Muslim to state their intention to have an Islamic funeral.
At Carter Dickens Lawyers, we further ensure a proper Islamic burial via making provision for the counsel of a pre-selected Imam for any questions that arise.
As per the Quran, your valid Islamic Wills may contain directions for the prevention of voluntary autopsies, unless required by Australian Law. In addition, your Will can contain provisions for either allowing or preventing removal and donation of organs and other internal body parts.
Obligations & Distribution of Estate
Under Islamic law, your estate will be distributed as follows:
- First, all funeral expenses must be paid, followed by the payment of all debts (secured and unsecured) owing.
- The remainder of your estate, after deducting liabilities/debt is referred to as your net estate.
- From your net estate, Islamic law permits you to distribute up to one-third as a legacy to any person, provided they are not heirs to the remainder of your estate. A legacy can be paid to a Muslim or non-Muslim and to any organisation or charity of your choice.
- The remainder of your net estate, after deducting any legacies, must be distributed to your heirs in accordance with Islamic law. The section below outlines the expected shares.
Expected Distribution Percentages
Essentially the beneficiaries of your estate are your spouse (if you have one), your parents and children. Other immediate family members may become beneficiaries if your parents or children have not survived you. The percentage distributions are allocated as per the Quran, and varies depending on survivorship of the beneficial parties. Essentially, the basic inheritance shares are to be distributed according to the following table:
|Each surviving parent||1/6|
|Surviving husband (where children exist)||1/4|
|Surviving husband (no children)||1/2|
|Surviving wife (where children exist)||1/8|
|Surviving wife (no children)||1/4|
|Surviving son (where surviving sister(s) exist)||Son receives twice the share of a daughter|
|Surviving son (no sister)||Son(s) receive remainder of estate|
|Surviving daughter (where surviving brother(s) exist)||Daughter receives half the share of a son|
|Surviving daughter (no brother)||Only one daughter = 1/2 of the estate
Two or more daughters = they share 2/3 of the estate
It is due to these particular Islamic requirements and their interaction with jurisdictional legal issues that legal advice is recommended prior to drafting and executing a ‘Sharia-compliant’ Australian Will.
Carter Dickens Lawyers excel at providing legal assistance and advice regarding the specific circumstances surrounding these Wills. We will ensure that you are made aware of any risks, and will provide a fully compliant Will to ease the potential legal strain associated with your passing.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.