Wills and inheritance

If you die without a will, your province's law decides who receives your estate. It does not follow the Islamic shares, and it may not choose someone who will arrange a Muslim burial. For a convert, whose closest relatives are often not Muslim, a will is the main way to protect both.

This becomes urgent when you marry, have a child or buy a home, but it is worth doing earlier. This page is general information, not legal or religious advice. You will need a lawyer for the will and a scholar for the shares.

The Quran tells believers to make a will when death approaches (Quran 2:180). It also sets fixed shares for close relatives, such as children, parents and spouses, which are divided "after the fulfilment of bequests and debts" (Quran 4:11). Scholars read these verses together.

When the Companion Sa'd ibn Abi Waqqas wanted to give away most of his wealth by will, the Prophet (peace be upon him) allowed "one third, yet even one third is too much" (Sahih al-Bukhari 2742). So an Islamic will usually does two things:

1. 1It pays your debts first.
2. 2It leaves up to one third to people or causes you choose, and the rest goes to your heirs by the fixed shares.

The one-third portion is how you can provide for people who are not fixed heirs, such as a friend, a charity, a child you care for, or relatives who are not Muslim. Scholars discuss whether the heirs can agree to more than one third, and whether an heir can also receive a bequest. The Fiqh Council of North America's guideline allows more than one third for a child in your care if the heirs permit. The schools also calculate some shares differently, so ask a scholar to work out the shares for your family.

A will only works if it meets your province's rules for signing and witnessing. An Islamic will template found online may not meet them. Have a lawyer draft or check the will.

In Ontario, Steps to Justice (run by CLEO, a legal information clinic) has a free guided tool that creates a simple will and powers of attorney. It is not legal advice, and it suggests you see a lawyer. It can still help you gather your thoughts before an appointment.

A will is also where you name:

• an executor (an estate trustee in Ontario), who runs the estate and may also make the funeral decisions
• a guardian for children under 18

Choose people who have agreed to follow your wishes, including a Muslim burial. In British Columbia, the executor named in the will has the first right to decide about burial, and a written burial preference in a will is binding unless it is unreasonable. Other provinces work differently. Our guide on when someone dies explains this.

A Canadian court does not have to follow Islamic shares. In Ontario, Steps to Justice explains two ways a will can be changed after death:

• A dependant you supported, such as a spouse, former spouse, child, parent or sibling, can ask a court for support from the estate, usually within 6 months of the estate trustee being named.
• A married spouse can choose between what the will gives them and an equalization payment under family law, and must ask the court within 6 months of the death.

Other provinces have their own rules. A lawyer can tell you how to write a will that respects the shares and is less likely to be challenged.

A hadith says "A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim" (Sahih al-Bukhari 6764, Sahih Muslim 1614). Based on it, the four schools hold that fixed-share inheritance does not pass between a Muslim and a non-Muslim, either way.

A minority of scholars disagree in one direction. IslamWeb's fatwa centre lists Mu'adh ibn Jabal, Sa'id ibn al-Musayyab and Ibn Taymiyyah among those who allow a Muslim to inherit from a non-Muslim relative who is not hostile to Islam.

Gifts and bequests are different. A parent who is not Muslim can leave you something in their will, and IslamWeb treats that as a valid bequest. In the same way, you can provide for your non-Muslim parents, siblings or children through gifts while you are alive and through the one-third portion of your will.

If a parent who is not Muslim dies, do not accept or refuse an inheritance in the first raw days. Speak to a scholar, and to a lawyer if an estate is involved.

1. 1List what you own and what you owe.
2. 2Choose an executor and a guardian for any children, and ask them first.
3. 3Speak to a scholar about the shares that apply to your family.
4. 4Decide what you want to give from the one-third portion, if anything.
5. 5Have a lawyer draft or review the will so it is valid in your province.
6. 6Write down your burial wishes and tell your executor where the will is.
7. 7Review the will after a marriage, a divorce, a birth or a move to another province.