Can Islamic Wills be legally valid in Australia?

Islamic Wills are an important part of estate planning for Muslims, as they ensure that a person’s assets are distributed according to Islamic inheritance principles. In Australia, Islamic Wills may be legally valid, but they must meet certain requirements to be accepted under Australian law. Here’s what you need to know about making an Islamic Will that is both compliant with Islamic guidelines and legally valid in Australia.

1. What is an Islamic Will?

An Islamic Will is a document that follows Islamic inheritance law in distributing a person’s assets after death. Under Islamic guidelines, inheritance shares are prescribed for family members like spouses, children, and parents, and specific rules determine who receives what.

2. Legal Requirements for Wills in Australia

For any Will to be valid in Australia, it must meet the legal requirements set out by Australian law:

• Written Document: The Will must be a written document.
• Signature and Witnesses: The person making the Will (the testator) must sign it in front of two independent adult witnesses. These witnesses must also sign the Will in the presence of the testator and each other.
• Testamentary Capacity: The testator must be of sound mind, memory, and cognitive capacity when making the Will, understanding the implications of its contents.
• Voluntarily Entered Into: The Will must be made voluntarily and without any form of coercion or duress.
• Clarity: The Will must be clear on who the beneficiaries are and their assigned inheritance.

As long as these conditions are met, an Islamic Will may be legally valid in Australia.

3. Incorporating Islamic Principles

Islamic Wills in Australia can incorporate the inheritance rules of Islamic inheritance law by specifying how the estate is to be divided. For example, many Muslims choose to divide their assets based on the Qur’anic guidelines, ensuring shares for children, spouses, and parents as per Islamic requirements. Australian law allows testators the freedom in deciding the distribution of their estate, as long as the distribution does not conflict with public policy or laws, and those who need to be provided for are taken care of.

4. Potential Legal Challenges

While an Islamic Will may be legally valid, there are some potential challenges:

• Family Provision Claims: Australian law allows eligible family members to challenge a Will if they believe they were not adequately provided for. This can sometimes be a concern for Islamic Wills, where distributions may differ from Australian norms (e.g., different shares for male and female children). Courts may adjust the Will’s provisions if a successful claim is made.

To mitigate the risk of your Will being challenged, you should consider the following:

1. Do you have any relatives or people who are financially dependent on you, who will not inherit under your Will?
2. Do you have a family member who may claim that adequate provision for their proper maintenance, welfare and advancement in life has not been made for, in your Will?
3. Do you have a family member or financially dependent person, whose portion to be received under your Will is not adequate enough?
4. Will your spouse be able to continue to live in your home, upon your death?
5. Will anyone else who was living with you and dependent on you, be able to have proper arrangements made for them, upon your death?

In these scenarios, you should get estate planning advice from a qualified lawyer. If you are able to provide for these person(s) during your life or through the discretionary bequest wasiyyah component of your Will, you may be able to mitigate the risk of claims against your estate.

• Executor’s Role: It is crucial to choose an Executor who understands both Islamic inheritance rules and Australian legal processes. The Executor is responsible for administering the estate according to the Will, so having someone knowledgeable in both areas can prevent issues.

5. Seeking Legal Advice

To ensure an Islamic Will is legally sound in Australia, it is often best to work with an estate planning lawyer who has experience with both Australian and Islamic inheritance laws. MuslimWills.com.au has utilised the expertise of Islamic legal scholars and Australian legal practitioners to create Wills that meet Australian and Islamic legal requirements.

6. Including a Wasiyyah (Discretionary Bequest)

Islamic law generally allows a person to bequeath up to one-third of their estate to individuals outside the Quranic inheritors. This portion, known as the wasiyyah, can be freely given to charities, friends, or otherwise non-inheriting relatives, aligning with both Islamic and Australian guidelines. Many Muslims use this portion to fulfil charitable obligations or other personal wishes.