Special Considerations for Convert / Revert Wills

As a convert to Islam, your unique life circumstances may require special attention when planning your Islamic Will. From non-Muslim relatives to obligations of faith, crafting a Will that balances Islamic inheritance laws and personal relationships is essential. Here’s a guide to help you navigate the process.

Why Is Estate Planning Important for Converts?

For converts to Islam, estate planning ensures your wishes are honoured and your obligations are fulfilled according to Islamic principles. Without a clear Will, your estate may be distributed and you may receive a funeral and burial in ways that don’t align with your faith.

Key Considerations for Converts

1. General Rule- Muslim and Non-Muslim Relatives

The general principle under Islamic inheritance law is that non-Muslims are not entitled to fixed shares of your estate. The Prophet Muhammad (ﷺ) said:

“A Muslim may not inherit from a disbeliever, and a disbeliever may not inherit from a Muslim.”(Sahih al-Bukhari, Hadith 6764; Sahih Muslim, Hadith 1614)

If you wish to leave something for a non-Muslim family member or loved one, Islamic law provides a way to do so while remaining compliant with Islamic Inheritance principles:

1. Use the Wasiyyah (Discretionary Bequest): You can allocate up to one-third of your estate to non-Muslim family members, others who do not receive automatic shares, or causes. This portion is not subject to the rules of obligatory inheritance and can be freely designated in your Will.
2. Gift During Your Lifetime: Giving gifts while you are alive is another way to support non-Muslim family members or loved ones without affecting the distribution of your estate.

2. Specific Rule- No Muslim Heirs At Death

For converts to Islam who have no surviving Muslim heirs at the time of their death, there are two main opinions under Islamic law regarding the distribution of their residual estate.

Opinion 1: The residual estate should be given to Baytul Maal (the Public Treasury in an Islamic state) for distribution.

Opinion 2: When there is no Baytul Maal (the Public Treasury in an Islamic state) available, the testator’s entire estate becomes discretionary. This means the testator can choose who to give it to, including non-Muslim family members if they wish.

It is important for converts to have their Will drafted to provide for scenarios where:

1. There are surviving Muslim relatives; and
2. Where there are no surviving Muslim relatives.

The MuslimWills platform has specially designed its Wills to ensure that the above provisions are included, taking the guesswork out for you.

3. Islamic Obligations and Sadaqah

Ensure your Will includes provisions for:

• Settling any outstanding debts.
• Paying missed zakat or making expiations (kaffarah) for unfulfilled religious obligations.
• Fulfilling wasiyyah for Islamic causes, such as supporting mosques or Islamic schools.

4. Guardianship for Children

If you have minor children, appointing a guardian who will raise them in accordance with Islamic values is crucial. Clearly state this in your Will, especially if your family includes non-Muslim relatives who may not respect your faith and try to influence your children towards another faith.

5. Funeral and Burial Arrangements

As a convert, it’s vital to leave detailed instructions for an Islamic funeral and burial, including:

• Performing ghusl (washing) and janazah (funeral prayer).
• Burial in a Muslim cemetery.

It’s best to also inform your family and Executor of these wishes while you have the capacity in order to avoid confusion or conflict upon your passing.

6. Appointing an Executor

Choose an Executor who understands Islamic inheritance laws and your faith-based wishes. If your Executor is not Muslim, ensure they work with a qualified Islamic advisor.

Australian Law: Equal Treatment of Beneficiaries

Under Australian law, a person has the freedom to leave their estate to anyone, regardless of religion or relationship. If you pass away without a Will (intestate), your estate will be distributed according to state-specific intestacy laws, which do not consider religion.

For Muslims, this highlights the importance of creating a Will to ensure their estate is distributed according to Islamic principles.

Family Provision Claims and Islamic Wills

Family provision claims are a unique aspect of Australian inheritance law, allowing eligible family members to request a larger share of the estate than what is specified in the Will.

In a family provision claim, a Court will consider several factors, including:

• The financial needs of the person contesting the Will: If a dependent or spouse was left without adequate financial support, the Court may adjust the distribution.
• The relationship with the deceased: The Court considers the closeness of the relationship and whether the person contesting the Will relied on the deceased for support.
• The deceased’s intentions: If it’s clear that the deceased intended to distribute their estate according to Islamic Inheritance principles, the Court may weigh that intent alongside the needs of the claimant.

Minimising the Risk of Contesting an Islamic Will

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?

To help prevent challenges, Muslims in Australia can take steps to make their Islamic Will as strong as possible under both Islamic and Australian law:

• Seek Legal Advice: Working with an estate planning lawyer familiar with both Australian law and Islamic inheritance can help ensure that the Will is valid and minimises the chance of successful challenges.
• Consider Arrangements For Your Partner or Others You Live With: You may have the option to grant a "life tenancy" or similar rights to individuals, such as your spouse, upon your passing, ensuring their accommodation needs are met without affecting the legal entitlements of other beneficiaries. It is advisable to seek legal advice to understand the arrangements you can make during your lifetime.
• Consider Family Provision: If possible, ensure that dependent family members who are not provided for adequately through automatic shares are reasonably provided for through the Wasiyyah (discretionary bequest), and the consent of all other close family heirs. This approach can reduce the likelihood of a family provision claim.
• Explain the Reasoning: Including a letter of wishes with the Will that explains why certain distributions were made (such as providing for a daughter’s education in other ways or explaining religious obligations of certain family members towards others) can provide clarity for the court.

How to Plan Your Will as a Convert

1. Identify Your Beneficiaries
   1. List all potential heirs, including Muslim and non-Muslim family members.
2. Use the Wasiyyah Wisely
   1. Decide how to use the one-third discretionary portion of your estate to support non-Muslim relatives or other charitable causes.
3. Document Your Funeral Wishes
   1. Clearly outline your desire for an Islamic funeral and burial to avoid confusion or conflict.
4. Seek Professional Advice
   1. Work with experts who understand both Islamic and Australian laws.

How MuslimWills Can Help

MuslimWills makes it easy for converts to create a Will that honours their faith and personal wishes:

• Provides tools to calculate Islamic inheritance shares.
• Offers guidance on using the wasiyyah to support non-Muslim relatives.
• Includes an annexure that details funeral instructions and guardianship appointments.