Processing an unislamic will, should it be distributed islamically?

#1

Asalaamalaykum,

I have a current scenario which I wish seek some advice and guidance ( both islamic and domestic law) about with regards to a will which approximately was made 13 years ago and stated that the estate be distributed according to Shariah. However, now upon the death of the individual there was a new will in place which stated that their share in the home they owned be distributed equally between the two other owners of that said house. There is no mention in the will of how the rest of the estate should be distributed.

The said property before death was held as tenants in common because the deceased had wished In their original will that things shouldn’t just pass under the joint tenancy as it had done previously.

I understand the executor has an islamic and legal duty to execute the will as it stands as there is no legal basis that any party is able to contest the will.

However, my dilemma is more trying to understand from an islamic perspective whether it can be accepted as valid as it has denied the rights of some of the beneficiaries and whether if accepted or agreed that actually this was wrong and all beneficiaries should receive their respective shares, what is ones obligation in this matter? Can after the will has been executed (under domestic law) should one correct the matter and distribute islamically?

#2

Wasalam

May Allah bless you.
Will drafting must be in according with Islamic principles when the law permits. For example in England, it is very easy to draft an Islamic will, as you are able to leave your estate to anyone you chose. But in France, the law of will writing is codified and therefore, you cannot just decide who will inherit and how for how much of the estate they will receive.

In both cases, when a will has been drafted in a non Islamic manner, it is for the heirs to ensure that the estate will be divided according to shariah rules.

However, it is also a possibility that the Islamic designated heirs decide among themselves to abide to an existing non Islamic will. In this scenario, if one will receive less than what it would have been under an Islamic will, then it will be considered as if he willingly forego his own rights.
I hope that makes sense.

And Allah knows best!