A Muslim must consider the impact of Islamic laws of inheritance when planning an estate. Living wills and health care decisions are also affected by Islamic law. It is critical for a Muslim to consult an Imam when writing a living will since there are many issues where Muslim law is unclear. Charitable giving is encouraged.Living Wills and Islamic Considerations
2. Islamic Law and Living Wills Generally
Islamic law permits the use of living wills. Decisions concerning health are primarily given to the physicians. If the decisions will enable someone to be restored to health, they should be taken. If a medical treatment would merely keep a person alive but would not restore the person to health, it need not be taken. If the only result is to artificially keep someone alive on life support, those decisions are not mandatory under Islamic law, but these heroic measures may be continued if the family so wishes. Generally though, these decisions should be made by the physician.
Issues for every Muslim to consider include: the definition of death, organ donations, and the appointment of an attorney or agent on your behalf. In regard to these issues, consider the following comments when drafting your living will in order to conform it to your Islamic beliefs.
3. Heroic Measures
Concerning heroic measures to be taken in these situations, consider this comment when drafting the living will: The use of heroic measures under Islamic religious principles, according to at least one Islamic scholar, may be required if, according to the physician, a reasonable probability exists that the individual will survive with a reasonable quality of life. However, since the question of whether or not to use heroic measures may only arise when the person is in a severe vegetative state, it would seem that heroic measures in such instances are not required.
Who Should be Designated as Your Agent
Under Islamic law, according to one Islamic scholar, the agent who should make the decisions may be required to be your parents, regardless of their age, because of the significance and importance Islam affords one's parents. Consult several Imams (religious scholars/leaders) for clarification. The ISNA (the Islamic Society of North America) may be able to provide forms and further clarification.
5. Definition of Death
In Islam, death is considered to have occurred when the soul has left the body, but this exact moment cannot be known with certainty. Death is therefore diagnosed by its physical signs. Muslim faith also teaches that God decides when a life is to end, so nothing can save a person when the moment of death arrives. The concept of brain death was accepted by a majority of scholars and jurists at the Third International Conference of Islamic Jurist, in Amman, Jordan, in October 1986. Most, but not all, Muslim countries now accept brain death criteria. In Saudi Arabia for example, about half of all kidneys for transplantation are derived from cadavers, with application of brain death criteria. Consult several Imams (religious scholars/leaders) for clarification. The ISNA (the Islamic Society of North America) may be able to provide forms and further clarification.
6. Organ Donations
With regard to organ donations, this seems to be somewhat of a gray area. Many Islamic scholars believe that interpretations of the Koran allow organ donations in certain circumstances, and organ transplantation is practiced in almost all Muslim countries. This generally involves kidney donations from living relatives, but cadaverous donation is increasing. Another scholar noted that human life in religion is paramount and everything should be done to perpetuate it. This scholar then stated that one should ideally make the decision while competent. However, if that is not possible, one’s family should make that decision, and if there is no family, then another person should make the decision on behalf of the potential donor. Another opinion, cited on ShiaNews.com in an article by Active-Islam.com, is that organ donations from a deceased Muslim are only allowed to another Muslim if his life depended on it, and donations to non-Muslims are prohibited. As noted, there are a multitude of opinions on the matter. It is recommended to consult several Imams (religious scholars/leaders) for clarification. The ISNA (the Islamic Society of North America) may be able to provide forms and further clarification.
The general Islamic view is that although there is some form of life after conception, full human life, with its attendant rights, begins only after the ensoulment of the fetus. On the basis of interpretations of passages in the Koran, and of sayings of the Prophet, most Muslim scholars agree that ensoulment occurs at about 120 days (4 lunar months plus 10 days) after conception. Other scholars, perhaps in the minority, hold that it occurs at about 40 days after conception. In regards to pregnancy, the general opinion is that the life of the mother takes precedence. Ideally, if the unborn child is capable of being saved, whatever is necessary to save it should be done. However, this cannot be at the expense of the mother’s life. If a choice has to be made to save either the fetus or the mother, but not both, then the mother’s life would take precedence. She is seen as the root, the fetus as the offshoot.
Islam does permit in vitro fertilization, although only under certain conditions. A couple must be married at the time of the procedure, and the husband must be alive. The egg must come from the wife and the sperm must come from her husband. Surrogacy is usually excluded, since according to Muslim law the birth mother, not the egg donor, would be the legal mother of the child.
8. Respect of the Deceased
In Islam, there is a strong custom not to do anything that desecrates the body. After death, a corpse is surrounded by loved ones who recite prayers for the deceased to have a swift entry into the world to come. The body is not left alone for this whole period of time until it is buried. The body is put into the ground without a coffin. Some try to bury the body facing Mecca. Before the deceased is covered with dirt, a family member or religious person recites the Shahadah (the Muslim profession of faith that there is no God but Allah and no prophet but Muhammad) into his ear one last time. Cremation is not allowed.Islamic Laws of Inheritance
9.Historically, men could inherit but women could not. This issue has been resolved so no discrimination now exists and women cannot be disinherited. Now any natural born child cannot be prohibited from receiving an inheritance. This does mean that male and female children inherit equally. The males inherit twice the value (shares) of what female children inherit. Two-thirds of the estate must be distributed among the heirs as prescribed in the Quraan:
“Forever parent and relative. We have appointed the rightful heirs to inherit what they leave. As for those with whom you have made firm agreements, give them their share. Surely Allah is a witness to everything.” 4:
Up to one-third of the estate can be given to anyone the decedent wishes. This one-third includes charities, non-Muslims, non-family, anyone other than those required as per the above requirements.
The distribution in all the following cases shall be after fulfilling the terms of the Will and the payment of debts. Muslim law states:
That the share of a boy shall be twice that of a girl.
If there are more than two girls, their share will be two thirds of the estate; but if only one girl, her share will be one half of the estate.
If the deceased left children, each of the parents shall get one-sixth of the estate;
But if the deceased left no children and parents are the only heirs, the mother shall get one third of the estate;
But if the deceased left brothers and sisters, then the mother will get one-sixth.
With regard to your spouses and children, Muslim law states:
You shall inherit one half of your wives’ estates if they leave no child,
But if they leave a child, then you will get one-fourth of the estate,
Your wife shall inherit one-fourth if you leave no child,
But if you leave a child then the wife gets one-eighth of your estate,
If a man or a woman leave neither ascendant nor descendant but has left a brother or a sister, each inherit one-sixth; but if more than two, they shall share one-third of the estate.
10. Consider naming an Islamic religious court to have binding arbitration to resolve any uncertainty. The following is a provision that a Muslim should place in his or her will to ensure that their religious views are upheld:
It is my express intent that certain dispositive provisions of my Will be interpreted in accordance with the laws of inheritance specified in the Koran. In the event of any issue arising as to the interpretation of those provisions of this Will, or the application of Koranic law, I expressly direct and authorize my Executor to consult with *KORANIC-AUTHORITY for the resolution of same. If any beneficiary under my Will in any manner, directly or indirectly, contests this will or any of its provisions, in particular any interpretation given to the dispositive provisions intended to be in accordance with the dictates of the Koran, or brings suit or other action against any other beneficiary with respect to any matter hereunder, or with respect to any asset received hereunder, then such contest or dispute shall be submitted to binding, non-appealable, arbitration, in *CITY, *STATE, in accordance with the rules of the *_____________ Islamic Court to be designated by *WHO-SHOULD DESIGNATE, or its successors. It is my specific intent that the holding of any such Islamic Court be non-appealable, even in instances of claimed fraud, bias, or if the Islamic Court is claimed to have exceeded its powers. Each beneficiary hereunder shall execute an agreement, as part of any receipt or release prior to receiving any distribution of assets hereunder, consenting to this provision. If any beneficiary fails to execute and agree to such a provision, or to adhere to such provision, or if any beneficiary brings any contest, suit or action against any beneficiary hereunder before any court, arbitrator, mediator or other person or body other than as provided for in this provision, then any share or interest in my estate given to such contesting beneficiary under my Will is revoked and such assets shall be disposed of in the same manner provided herein as if the contesting beneficiary and his or her issue had predeceased me. Each clause in this In Terrorem provision is intended to be severable. If any term or provision of this In Terrorem clause is held to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this clause. This provision shall be construed in all respects as if such invalid or unenforceable clause or portion thereof were omitted, or if feasible, reformed in a manner that is enforceable with alternative terms or provisions to effectuate as closely as possible my original intention to the extent lawful and practical. This clause shall be governed by and construed in accordance with the laws of the State of New York and each beneficiary hereunder agrees to personal jurisdiction in the State of *STATE-NAME and before the Islamic Court hereinabove specified.
It is mandatory for every Muslim to use this dispositive scheme in their wills.
Sample Clauses Considering Islamic Law.
The following is a selection of sample clauses that reflects modifications to distribution and power provisions included in a will to give consideration to Islamic religious beliefs. This is not a comprehensive listing of clauses in a typical will that may have to be adjusted. Also, these clauses are based on modifications of provisions used in an actual act pattern which may not fully conform to Islamic law on all points.
In Shares to Named Beneficiaries:
Upon the death of my spouse, if my spouse survived me, the principal and any undistributed income not then added to principal of the Applicable Exclusion Trust; or if my spouse did not survive me, upon my death, my residuary estate (herein my “Remaining Estate”), as the case may be, shall be divided into the number of equal shares (or sub-shares) required by this provision, and such shares (or sub-shares) shall be distributed to or for the benefit of the persons or institutions named or referred to below. Should any such bequest lapse, then the remaining persons listed shall continue to share in my Remaining Estate in the proportions set forth. The number of shares (or sub-shares) into which my Remaining Estate shall be divided shall be the number of shares (or sub-shares) for those beneficiaries listed below, and which bequests have not lapsed by the death of the beneficiaries. The following beneficiaries shall take under this provision:
Note: At the second death, 1/3 of the remaining estate will pass to charity, specific charities could be named or alternative arrangements could be made. The remaining 2/3rds could be divided among your children. Your sons will receive 2 shares each. Your daughter will receive 1 share. Each child will receive his or her share outright or in trust. If a child predeceases, then his or her share will pass to his or her children. The client should verify with his religious advisors to make sure that his disposition is in accordance with Islamic law.
One (1) share to my Executor to establish a charitable Donor Advised Fund (the “Fund”) through *CHARITY-NAME Investments. The Fund shall be used only for charitable, educational or religious purposes (or any combination of such purposes). The Fund shall be the property of *CHARITY-NAME held by it in its normal corporate capacity, it shall not be deemed a trust fund held by it in a trustee capacity. *CHARITY-NAME in its normal capacity shall have the ultimate authority and control over all property in the Fund, and the income derived therefrom for charitable, educational and religious purposes. My surviving children may, from time to time, submit to *CHARITY-NAME recommendations with respect to such distributions, whose recommendations shall be solely advisory. All investment decisions shall be made in due accord and with full respect for Islamic law.
I direct my Fiduciary to distribute the bequest outright to the charitable organizations named. If the institution named does not exist at the time of distribution, or is for any reason unable or unwilling to accept the bequests under the terms and conditions of this provision, if any, then the bequest and devise to such charitable organization shall be distributed to a charity designated by my Fiduciary. If the organization is subject to a mere change in name or a merger into a successor organization serving substantially the same purposes, such organization shall be considered to exist and the gift and bequest below shall not lapse. Where any such charitable organization shall not be qualified as a tax-exempt organization under the Internal Revenue Code as an organization to which testamentary gifts are deductible for federal estate tax purposes then the bequest to such organization shall lapse.
Two (2) shares to be divided into as many equal sub-shares as shall be necessary to provide the following: [*FAMILY-BEQUEST]*.
11. Islamic law can make it inappropriate to pay or earn interest based on a prohibition of making a guaranteed profit on capital. Stock mutual funds have also been formed which invest in a manner which conforms with Islamic law by purchasing stocks for investment, while avoiding stocks of companies that engage in businesses involving alcohol, gambling or pornography. Bank stocks can also be problematic for the reasons noted above.12. A sample clause to be used in a will or trust might appear as follows:
Further, the Trustee is authorized and directed, to structure any investments and assets, to the extent feasible, to be in accordance with Islamic religious principles, if the beneficiaries of any Trust formed hereunder request such standard in writing. Such standard may include by way of example, a prohibition against paying or earning interest based on a prohibition of making a guaranteed profit on capital. Stock mutual funds formed which invest in a manner which conforms with Islamic law by purchasing stocks for investment, while avoiding stocks of companies that engage in businesses involving alcohol, gambling or pornography. Bank stocks may also be prohibited. In the event that there is a conflict between beneficiaries of any Trust as to whether such standard shall apply, then the Trustee shall divide such Trust into separate parts and invest each part accordingly. This limited right of a beneficiary to designate whether or not Islamic investment standards should apply shall not be interpreted as providing any further rights or powers to any beneficiary. In the event of any dispute as to the application of Islamic investment standards the Trustee shall consult the ISNA (the Islamic Society of North America) for further clarification. If such action is not feasible, or not determinative, the Trustee may consult any Islamic scholar or Imam of the Trustee’s choice and rely on the determination of same.
13. Investment Goals
In Accordance with Islamic Law
The Trustee is authorized and directed to structure any investments and assets, to the extent feasible, to be in accordance with Islamic religious principles, if the beneficiaries of any Trust formed hereunder request such standard in writing. Such standard may include by way of example, a prohibition against paying or earning interest based on a prohibition of making a guaranteed profit on capital. Stock mutual funds formed which invest in a manner which conforms with Islamic law by purchasing stocks for investment, while avoiding stocks of companies that engage in businesses involving alcohol, gambling or pornography. Bank stocks may also be prohibited. In the event that there is a conflict between beneficiaries of any Trust as to whether such standard shall apply, then the Trustee shall divide such Trust into separate parts and invest each part accordingly. This limited right of a beneficiary to designate whether or not Islamic investment standards should apply shall not be interpreted as providing any further rights or powers to any beneficiary. In the event of any dispute as to the application of Islamic investment standards the Trustee shall consult the ISNA (the Islamic Society of North America) for further clarification. If such action is not feasible, or not determinative, the Trustee may consult any Islamic scholar or Imam of the Trustee’s choice and rely on the determination of same.
Fiduciary Responsibility for Implementing Investment Policy
Assets may consist of securities of one issuer, or securities of a few issuers, or a diversified portfolio of various types and issuers of securities. The Fiduciary is not directed to distribute or dispose of any particular securities or other assets which may come into the Fiduciary’s possession, where such distribution or disposition is primarily for the purpose of diversification of investment holdings. The Fiduciary is not required to liquidate or adjust holdings solely because such holdings have a limited market. The Fiduciary is not obligated to diversify the investment holdings and is hereby indemnified and held harmless from any such failure to diversify.
Flexible Investment Policy Permitted
In addition to the investment powers and the discretion conferred on the Fiduciary under this Will or any Trust formed hereunder, the Fiduciary is authorized (but is not directed) to acquire and retain investments not regarded as traditional or prudent for trusts, allocations of investments within the Trust’s portfolio which would not be deemed prudent or advisable, including but not limited to investments and/or investment strategies that would be forbidden by the prudent investor standard applicable at such time. The Fiduciary may therefore invest, any portion or even all of the Trust Estate, or my residuary estate, in any manner in the Trustee’s discretion, including in any type of security, option, improved or unimproved real property, tangible or intangible property, direct or indirect interests, joint ventures, limited liability companies, general partnerships, limited partnerships, mutual funds, corporations, foreign or domestic investments, closely held business investments, and so forth. This authorization however, shall not be given, and shall not be executed to such extent that, where such investment must be made in a particular manner to avoid an adverse tax result, by way of example and not limitation, the disqualification of a trust for the marital deduction where such deduction would be advisable or intended.
a) Note: When drafting a will, trust or other document for a client wishing to have documentation conform to Islamic law, the general power provisions in these documents need to be reviewed and perhaps modified. The following is a selection of provisions that warrant consideration. This is not necessarily a complete list of provisions.Fiduciary Powers and other “Standard Provisions”
14. Fiduciary Powers
Loan Funds or Assets1) To advance money to any corporation, the stocks, bonds or other securities of which shall constitute assets of my estate or any trust created hereby, in order to prevent or defer any defaults in the performance of the terms and conditions thereof. Any loans shall be made without interest, in accordance with Islamic law.
Borrow Funds1) To borrow money for the purpose of raising funds to pay taxes or for any other purpose deemed by the fiduciary beneficial to my estate or any trust created hereby and upon such terms as the fiduciary may determine and to pledge as security for the repayment of any such loan or loans any assets of my estate or any trust created hereby. Any loans shall be made without interest, in accordance with Islamic law.
Borrow from Fiduciary1) To borrow from a fiduciary (but only on arm’s length terms and upon execution of a written note) or whether for the purposes of raising funds to pay taxes or otherwise, and to give or not to give security therefore, all upon such terms and for such periods as the fiduciary shall deem advisable. Any loans shall be made without interest, in accordance with Islamic law.
Interests in Closely Held Business1) With respect to securities in any closely-held corporation, or any interests of mine in any unincorporated business enterprises, to retain such securities or interests and to allow any assets of my estate or any trust created hereby invested in any such corporations or businesses to remain so invested for such time as may appear desirable. To advance money to any such corporations or businesses in order to aid them in their operations or with the view to maintaining or increasing the value of the interest therein of my estate or any trust created hereby. To provide for the management, operation and conduct of such businesses, either singly or in conjunction with others interested therein. To engage and delegate duties and powers to any employees, managers or other persons, without liability for any delegation except for negligence in selection. To borrow money for such corporations or businesses and to secure such loans by a pledge or mortgage not only of interests held in such corporations or businesses, but also of any other assets held in my estate or any trust created hereby.2) Any loans shall be made without interest, in accordance with Islamic law. To vote any stock so as to effect the election as an officer or director, or both, of any such corporations of any fiduciary hereunder, and also to provide for reasonable compensation to such officer or director (which compensation shall be in addition to and not in lieu of any compensation to which such fiduciary may be entitled for acting hereunder). To enter into agreements for voting trusts and to deposit securities with the voting trustees, to delegate duties to such trustees with all powers of an absolute owner of such stock, to authorize such trustees to incur and pay expenses and receive compensation, and to accept and retain any property received under such agreements. To take business risks in the management, operation, conduct and disposition of any such corporations and business enterprises, notwithstanding that my estate or any trust created hereby shall have an interest therein. To sell the securities or assets of any such corporations or businesses, or to liquidate, dissolve or otherwise dispose of the same. To organize, either singly or in conjunction with others, a corporation or corporations to carry on any business enterprise, transferring assets or cash thereto for stock.Marital Residence
15. The marital residence cannot be disturbed or distributed for one full year. The wife must be given the right to live in the house for one year. This is in addition to any inheritance. If the wife decides not to exercise this right it can be avoided.
16. What happens if a child is conceived but not born? The distributions for all inheritances, other than maintenance, will be held in abeyance until the child is born. This approach will help assure protection of the expectant mother.
17. There are no restrictions on gifts (lifetime transfers). Thus any Muslim can convey property as they wish while alive. The above distribution requirements only apply following death.
18. This is one of the reasons that the one-third discretionary distributions of estate assets are permitted. Giving charity is looked upon very favorably as it can provide the donor rewards even after death. There is no ruling to give any specified amount to charity but it is encouraged to give to a charity where it will be used in perpetuity. This could include a school system which can educate children for many years to come, rather than for a one time use.
Charging of Interest
19. There are different scholarly views on what constitutes “riba”. Some say modern interest comes under the concept “riba” which connotes usuary in a modern concept. If there is no change in form, such as money is repaid with interest as money, it may be viewed as “riba”. Other scholars say that modern interest, such as a mortgage is not “riba”. Therefore, there must be care exercised in any estate planning transaction which is based on an interest payment.
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