Islamic Wills and Powers of Attorney

About this time last year, gave a presentation at an Ottawa Musalla in relation to Islamic wills, powers of attorney and general estate issues. Here for others who might be interested.

Overview of the presentation:

12 11 Islamic Wills Presentation Overview

Detailed presentation notes:

12 11 Presentation on Islamic Wills, Powers of Attorney and Estates

Precedent from Islamic Society of North America, which is commented on throughout the presentation notes:

Islamic Society of North America – Will Precedent

Some general comments. Seems that a lot of people take Islamic will and power of attorney precedents and simply sign them, witnessed, but without more. Do a search, and one finds all sorts of precedents out there. While no Canadian litigation over Islamic wills as of yet that I can find, it would seem very important for the female spouse in particular to obtain independent legal advice and for both spouses to sign a pre-nuptial or post-nuptial agreement for the purpose of restricting property rights. Females under Islamic laws of succession receive half of what a male receives and a female spouse generally receives far less than half of the estate.

Under Ontario law, a spouse cannot receive, in relation to an estate, any less than he or she would receive on a divorce, unless there is an agreement between the spouses restricting entitlement and both spouses have received independent legal advice. Even there, the general rule is that a spouse cannot contract out of his or her rights to the matrimonial home. Since the matrimonial home, in many families, will be the primary family asset, it would seem that a female spouse could readily challenge or renounce any agreement by which she has agreed to limit her estate entitlement–particularly where such limitation would result in her receiving less than she would receive on a divorce.

Matters become more (or less?) complicated when, as I find is often the case, the matrimonial home of an Islamic couple is in the name of the husband only. The more common form of title to the matrimonial home, at least among non-Islamic couples, is for it to be in the names of both spouses, as joint tenants, with a right of survivorship.

Based on potential challenges to an Islamic will, it would seem best that the parties also specify, in the same document, how they would wish their estates distributed if any of the provisions of the Islamic will are held to be legally invalid or inoperative.

More to consider.

About brucelarochelle
This entry was posted in Estates, Islam, Powers of Attorney, Wills. Bookmark the permalink.

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