How is Islamic estate planning interpreted under Nigerian law?

Think about succulent fried ram.

Moist on the inside. Crisp on the outside. Heavenly flavors melting in your mouth. Maybe a little pepper to spice things up.

Hold on a second.

If you wanted to prepare such a feast for yourself, would you begin by immersing a live ram in hot oil, kicking and screaming?

Besides risking the wrath of a very confused ram, anyone who attempts the above approach runs the risk of non-halal and unhealthy dietary choices.

In the same way that anyone who wants to cook a good meal must prepare the condiments and utensils before applying them in the correct sequence, any faithful who hopes to ensure fair administration of their Estate according to Islamic law must pay attention to the prescribed sequence of distribution.

It is no secret that the rules which govern the manner and distribution of a deceased Muslim’s assets are laid out in the Holy Qur’an, in the sayings and traditions of the Prophet (pbuh), and the majority opinion of the Muslim scholars.

In fact, the provision of the Holy Qur’an is so widely recognized that for the Will of a deceased Muslim to be considered valid under Nigerian law, it must comply with the sequence of distribution specified by Islamic law.

This position was affirmed by the Nigerian Supreme Court in the case of Jiddun v Abuna, where it held as follows:

“Where a Muslim dies, his heirs are permitted by law to appoint a person learned in Islamic law to share his estate among them according to such law and if subsequently the matter is taken before a court of law, that court will enforce the sharing, provided it conforms with the law.”

Since it follows that asset sharing for Muslims can only be enforced by the court when compliant with the Holy Qur’an, it is key for every Muslim to answer a highly important question.

WHAT IS THE CORRECT SEQUENCE OF DISTRIBUTION?

According to the ʿilm al-farāʾiḍ (Arabic: علم الفرائض‎, ‘the science of the ordained quotas’) as outlined in the Holy Qur’an, the assets of a deceased Muslim are to be distributed in the following order:

1. Funeral Expenses

   First and foremost, all funeral expenses of the deceased Muslim (usually items relating to medical care and burial arrangements) must be settled in full from the deceased’s Estate.

2. Debts

   Next in the distribution sequence is the settlement of the deceased’s debts. These debts include those to Almighty Allah (swt) such as Zakat (unpaid religious tax), Haji Fardhu (compulsory pilgrimage which the deceased did not perform during his lifetime), and all other forms of unpaid Kafarah (compulsory donations on account of non-performance of religious obligations by the deceased).

   Debts under this umbrella also include facilities that were secured against the assets of the deceased during his lifetime. Such may include any form of secured credit such as a loan, a pledge or a promissory note duly signed by the testator during his lifetime.

   In Sahih Muslim Book 11, No.3944, Abu Haraira reported that:

   “When the body of a dead person having the burden of debt upon him was brought before Allah’s Messenger (pbuh), he would ask whether he had left property enough to clear his debt and if the property had been sufficient for that purpose. He observed the funeral prayer for him otherwise, and said to the deceased’s man’s companion that if anyone dies leaving a debt, the payment is his responsibility.”

   This authority is also established in Sahih Muslim Book 11, No.3947 and No. 3948.

3. Islamic Personal Will

   This is the point at which personal desires of the Testator are considered in administering the Estate, only after debts have been settled. By Islamic law, a Muslim is permitted to give out up to 1/3rd (and no more) of his estate to beneficiaries who are not legal heirs.

   The authority for this rule is Sahih Muslim Book 13, No. 3991 in which Sa’d b. Abi Waqqas, while ill, received a visit from the Prophet (pbuh). He told the Prophet (pbuh) that he was in pain and afflicted, with none to inherit his wealth apart from his only daughter. He asked whether to give 2/3rd or half of his property to Sadaqa (charity). The Prophet (pbuh), while answering this question, laid down the wisdom that a Muslim man should give no more than 1/3rd of his estate to charity.

   In the Usman vs Usman case where the Testator gave a portion of his property to wakf (charity), 27 of his legal heirs opposed the distribution while only 4 supported it. In upholding this unusual distribution, the court held that what is paramount is the desire of the deceased to create a perpetual endowment of wakf and that the opinions of the heirs are immaterial if the legacy does not exceed one-third of the deceased’s Estate.

4. Remainder of the Estate

   Finally in the distribution of a deceased Muslim’s Estate and following the settlement of the 1/3rd, the balance (2/3rd of the entire Estate) must be distributed to eligible heirs.

   It is important to note that this last step in the distribution sequence must be performed in strict compliance with the Faraid Rules of distribution.

   In the judicial matter of Mohammed v. Mohammed, two sisters instituted a complaint against their two brothers for failure to distribute their father’s Estate. The court found that the sisters, being daughters of the deceased, were legal heirs as stipulated by the Qur’an. The court held that under Islamic law, sons do not have any right whatsoever to exclude their sisters from their father’s estate.

   Also consider the case of Ayanda v. Akanji. The deceased, whose Estate was valued at N100,000.00, left two widows, three sons and three daughters. The trial Upper Area Court gave each widow, son and daughter the sum of N5000, N20,000 and N10,000 respectively. In overruling this distribution, the Sharia Court of Appeal held that the portion given to the widows was not up to their joint entitlement of 1/8th under the Faraid Rules of distribution. The court then ordered that the Estate be redistributed.

In several instances, the strict following of the Faraid rules of distribution exists to protect those who could otherwise be treated unfairly.

For example, the case of Salami v. Salami featured an attempt to exclude the deceased’s wife from inheriting. The court held that the wife of a deceased Muslim cannot be excluded from his estate, thus allowing her a share of the Estate.

It goes without saying that any Muslim aiming to secure the future for their loved ones must be aware that the sequence of distribution prescribed by Islamic law is intricate, with provisions far more than can be imagined.

Planning for your loved ones is an honorable endeavor. To ensure that none of your wishes violate the rules of distribution as laid out in the Qur’an, it is necessary to consult professionals with extensive experience in administering Muslim Wills.

Want to know some good news?

We know just where to find such professionals.

HB: For more details on Islamic Estate Planning, visit UTL Trust Management Services Limited at here.

PS: No rams were unduly harmed in the making of this article.