One of the most important aspects for a Muslim is to have their estate in order. This is an easier task when the country you reside in practices Islamic Sharia law. In South Africa however, Sharia law is not the law of the land and as a result, Islamic succession laws are not automatically implemented as they would in a country practicing Sharia law.
There is therefore an onus upon Muslims who reside in countries in which Islamic Sharia laws are not in force, to ensure that that their Will is drafted according to Islamic Sharia Law and in turn that their estate will be administered in terms of Islamic Sharia law.
South African laws of succession and the Islamic law of succession substantially differ from each other. Because of these vast differences, it is important for Muslims to draft a Sharia compliant will. Should a person pass away without a will, in terms of South African laws, such person’s estate will be administered in terms of the South African Laws of Succession. Essentially this means that such person will not have a say in the way their estate is distributed. An effect of this will be that, when a Muslim person passes away without a will such person’s estate will not be distributed in terms of Islamic sharia law, but rather in accordance with the law of the land and in South Africa, this is the Intestate Succession Act.
It is also important to note that any Will drafted, whether a Sharia compliant will or not, needs to follow the requirements of South African law and more particularly, the Wills Act. These requirements are that the person making a will must be over age of 16, their will must be in the handwriting of the person whose will it is or typed and each page of the will must be signed by the person making the will, as well as two competent witnesses.
In terms of South African law of succession, a person who dies with a valid will has died testate and his estate shall be administered in terms of the will. This gives the effect to the principal of ‘freedom of testation’ which is a key feature in South African succession law. This principle allows a Muslim person to stipulate in his/her will that the principles of Sharia law are to apply to his or her estate. If a person dies without a will, such person is regarded to have died intestate and therefore their estate will be administered in terms of the Intestate Succession Act, which stipulates who may inherit and what share of the estate such person or persons will receive.
In strict Sharia law, no person can die intestate due to the fact that how and who inherits is determined by the provisions of the Quran. This therefore presents the initial problem when it comes to the differences in South African Succession law and Islamic Succession law. If a South African Muslim dies without a will, such person’s estate will not be administered in terms of the provisions of the Quran, rather South African law of intestate succession shall apply. It is therefore of the utmost importance that South African Muslims have a will drafted.
When a Muslim dies, there are certain things that must be taken care of. These are that the deceased’s debts and funeral expenses must be paid before any heir can inherit. Once these expenses have been paid, the remainder of the estate must be distributed in terms of sharia law.
The Quran stipulates exactly the share that each beneficiary will inherit from the estate and also indicates when certain family members will inherit. Further to what is to be inherited in terms of the Quran, a testator may bequeath a maximum of 1/3 of his whole estate in a way he/she wishes to. The only limitation found here, is that no portion of the 1/3 or ‘Wassiyat’ be bequeathed to any person who will benefit from the remaining 2/3 (by virtue of the Quran). Therefore the 1/3 may be bequeathed to a charitable organisation or any person who will not inherit from the remaining 2/3 of the estate.
South African law allows a Muslim person to stipulate in his/her will that his/her estate must be distributed in accordance with Sharia Law. To take advantage of this, contact our attorneys in Cape Town to draft your Sharia compliant will.
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