Islamic Wills in Ontario

What Is an Islamic Will?

As the name suggests, an Islamic Will is a Will that is Sharia-compliant.
While it is commonly referred to as a Will, an Islamic Will is more accurately a set of instructions outlining how the wealth of the Islamic testator is to be disposed of after their death.
It is therefore important to work with lawyers who are familiar with both Islamic law and Ontario law to ensure the Will is compliant with Sharia and legally enforceable in Ontario.

The Two Parts of an Estate Under Islamic Law

There are two parts to the wealth of an individual in Islam:

1. Fara’id

2. Wasiyyah

Fara’id

Fara’id is the mandatory portion of the estate that must be distributed in accordance with Sharia law. It generally represents two-thirds of the estate.
The share allocated to each family member depends on the specific family structure at the time of death.
Because the division depends on whether the testator is survived by a spouse, children, parents, siblings, or other relatives, each situation must be carefully reviewed to ensure a clear and accurate distribution.
Within the Fara’id framework, there are three categories of heirs:
Quota Heirs
These are typically spouses, children, and parents, each of whom is entitled to a specific prescribed share.
Residuary Heirs
These often include siblings, grandparents, nephews, and nieces.
Extended Family Members
These generally include aunts, uncles, and their descendants.

Wasiyyah

The Wasiyyah makes up the remaining one-third of the estate. This portion may be distributed at the testator’s discretion, including to charitable organizations or other beneficiaries.
Generally, the Wasiyyah cannot be used to benefit heirs who are already entitled to receive under the Fara’id distribution unless all heirs consent.
The Wasiyyah is optional, meaning a testator may choose to leave their entire estate to their heirs in accordance with the Islamic distribution scheme.

Risks for Islamic Testators in Ontario

In Ontario, if you die intestate (without a Will), your estate will be distributed according to the rules set out in the Succession Law Reform Act, irrespective of your cultural or religiou background.
This generally includes:

• Payment of debts and liabilities;
• Your spouse, if alive, receiving the first $350,000 of the estate (known as the preferential share); and
• The remainder being distributed among your spouse and children in accordance with Ontario law.

This distribution may differ significantly from the distribution required under Islamic law and will likely result in an outcome that does not reflect your true testamentary wishes.
Those who wish therefore to be Sharia-compliant, are encouraged to make a Will.

Islamic Wills and values do not supersede Ontario laws with respect to succession. While Ontarians benefit from testamentary freedom and are generally entitled to create whatever final distribution they desire upon death, Islamic Estates and Wills are subject to all of the same equitable and legal claims that are available to non-Islamic testators – be it, constructive or resulting trust claims, or claims for dependant’s support. Many Islamic testators will proceed with Sharia-compliant Wills in Ontario, notwithstanding these risks, in reliance on their expectation and trust that their family members will honour their intentions and refrain from advancing any such claims.

In Closing

Islamic Wills allow testators to honour their religious obligations while ensuring their estate plan remains valid and enforceable under Ontario law.
Without proper planning, Ontario’s intestacy rules may apply and could result in an outcome that does not reflect the testator’s intentions.
Working with experienced legal counsel, like those at NIKA LAW LLP, can help ensure your wishes are clearly expressed, faithfully carried out, and legally enforceable.