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Wills

What is Will?

It is a legal declaration of how you wish to dispose of your property/assets on your death. In order for it to be valid it must comply with certain requirements.

Who can make a Will?

Generally speaking, anyone over the age of 18 and of sound mind. If you are not of sound mind or if there are any doubts with regard your ability to make a Will then you MUST seek legal advice.

What makes a Will valid?

It must be in writing. It should appoint someone to carry out the instructions (an executor) and dispose of possessions/property. It must be signed by the person making the Will (the Testator), or signed on the testator’s behalf in his or her presence and by his or her direction. This must be done in the presence of two witnesses who then sign the Will in the presence of the testator.

Who can be a witness?

Witnesses should be two adult sane people (Muslim men for Shariah purpose). They should not be blind and must be capable of understanding the nature and effect of what they are doing. However, a witness should not be a beneficiary in the Will or married to the beneficiary. In these circumstances the Will remains a valid and legal document, but the gift to the beneficiary cannot be paid.

Who can be an Executor?

Executor is the person appointed by Testator for distributing his assets after his death. (for Shariah purpose executor must be a Mukallf i.e. an adult sane Muslim, can be a man or a woman). Beneficiaries can also be executors if they are adults at the date of the Will. More than one executors can be appointed simultaneously, and it is so recommended. It is also recommended that the witnesses and Executors are relatively younger then the Testator.

What if you don’t make a Will?

If you don’t leave a Will your estate will pass in accordance with the intestacy rules. The intestacy rules set out who is entitled to inherit from your estate if you don’t leave a valid Will. (As a result your assets may not pass according to the Shariah).

If you are married the first person entitled to your estate under the intestacy rules is your spouse but he or she will not necessarily inherit the whole of your estate.

The amount your spouse would inherit depends on how much is in your estate and which of your blood relatives survive you. Assets held in joint names usually pass automatically to the other joint owner(s) and do not form part of your estate (if you are unsure about the type of joint ownership you share with another then you should consider seeking legal advice).

Other things you should consider about the effects of the intestacy rules

If any of the following circumstances apply to you, the intestacy rules may not cater for your situation in the way that you would wish:

You have no living relatives and wish to leave your estate to your friends or to a charity (The Crown will take if there is no Will and no surviving relatives under the intestacy rules).

You are legally married and have children from a previous relationship and you wish to ensure that your children receive something from your estate.).

You have dependant relatives e.g. children under 18, elderly relatives or relatives with a disability who have special needs and you want to make sure that they are looked after and provided for. (If you make a Will you can appoint guardians to look after your children and set up trusts in your Will to provide for dependants.

Your estate is large and may be liable for Inheritance Tax. You may need tax planning to mitigate or avoid the tax liability.

How to make a Will?

You can seek legal advice from a solicitor or professional Will Writer, do it yourself using a pre-printed Will form available from stationers or do it yourself using a sheet of plain paper. However, please remember, Doing it yourself may be fine for you, but if you make a mistake, it can be costly and distressing for your beneficiaries, especially if your Will turns out not to be valid.

How to make a Will?

You can seek legal advice from a solicitor or professional Will Writer, do it yourself using a pre-printed Will form available from stationers or do it yourself using a sheet of plain paper. However, please remember, Doing it yourself may be fine for you, but if you make a mistake, it can be costly and distressing for your beneficiaries, especially if your Will turns out not to be valid.

Why get it prepared by Makka Solicitors Ltd?

We believe that making a Will should not be considered lightly, as having a Will prepared by an experienced solicitor cannot be any easier, cost effective, throw light on matters you may not have thought of as affecting you, and you might even find it humorous! It would only take an hour of your time, have the peace of mind of leaving your estate to the right people providing them with security, and it would cost a fraction of the substantial amount you could save by virtue of the information you will receive from us about inheritance tax and setting up trust, if necessary.

Our charges for a standard Will are competitive and it includes consultation, preparation and overseeing execution of the Will and our staff can act as executors and witnesses.

After Making a will

Can I change my Will?

Yes you can and it is advisable that you review your Will regularly to ensure that it still meets your requirements as your circumstances change, otherwise problems or complications can arise.

In order for any alterations to be valid, you will need to make another Will or if the changes are relatively small, you can make a codicil, which forms part of your Will (a codicil must be signed and witnessed in the same way as a Will). A codicil is a document that makes changes to a Will. A codicil does not usually revoke the Will but is read in conjunction with the Will.

It is possible to draw up your Will to cover possible future events (such as a beneficiary dying before you, or to make gifts to children or grandchildren born after the date of the Will) but you should get advice from us on such matters as they are not straightforward and will cause problems if not properly worded.

WARNING: Getting married after your Will is made will revoke (cancel) it unless the Will says it will not. Divorce also affects your Will, but does not revoke it. If you divorce after your Will is made, any reference to your former spouse will be treated as if he or she had died on the day that the decree absolute was made. You should seek our legal advice in those circumstances.

Where should I keep my Will?

Your Will may not be required for many years after you make it so it is essential that it is stored safely and that it can be found after your death. The main storage providers are: Solicitors (a charge may be made), Banks (charges apply) (WARNING: do not store your Will in your safety deposit box. The box can’t be opened until Probate is granted and Probate can’t be granted without the original Will). You can deposit your Will with any Probate Registry in England (£15 one-off fee payable) or Keep it yourself (but make sure your executors know where to find it)

Some key points to remember

Be aware of what will happen to your money and possessions if you die without leaving a Will. Without a Will, under the law of intestacy, all or some of your assets, for which you have worked so hard during your lifetime, could be inherited by someone you never imagined would.

Do consider taking legal advice before ‘doing-it-yourself’. Mistakes can cause real difficulties for your loved ones and you will not be there to put things right. If you use an internet site to help you to make your Will, ensure that it relates to the law of England and Wales (if you are Muslim it must comply with the Shariah).

Review your Will from time to time to ensure it still reflects your wishes and caters for your current circumstances. Do not attempt to change your Will by simply altering it or writing on it.

Importance of a will in Islam

It is extremely important for a Muslim to understand that when a person dies his wealth goes back to the one who granted him this wealth in the first place i.e. Allaah Subhanahu-wa-Ta’alaa the creator and owner of everything. What belongs to Allaah Subhanahu-wa-Ta’alaa can not be distributed except by what He would approve; therefore having mentioned the shares of various heirs in surah anNisa (4th chapter of the Quraan) Allaah Subhanahu-wa-Ta’alaa says:

These are the limits (set by) Allâh (or ordainments as regards laws of inheritance), and whosoever obeys Allâh and His Messenger (Muhammad MBUH) will be admitted to Gardens under which rivers flow (in Paradise), to abide therein forever, and that will be the great success.

And whosoever disobeys Allâh and His Messenger (Muhammad), and transgresses His limits, He will cast him into the Fire, to abide therein forever; and he shall have a disgraceful torment. (4.13-14).

It so happens that a person obeys Allaah Subhanahu-wa-Ta’alaa for fifty years and then all his deeds are destroyed because he causes his wealth to be divided among his heirs unjustly and he is not able to come back from his grave to correct his mistake. Therefore, it is important for everyone who has wealth of any kind to make a Will. Allaah says (interpretation of the meanings):

“It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes a bequest to parents and next of kin, according to reasonable manners. (This is) a duty upon Al-Muttaqoon (the pious)” [al-Baqarah 2:180]

And the Prophet (peace and blessings of Allaah be upon him) said: “It is not permissible for any Muslim who has something to (Will) to stay for two nights without having his last Will and testament written and kept ready with him.” (Narrated by al-Bukhaari, 2533).

Al-Wasaayaa (the Will) is the part of wealth on which Allaah Subhanahu-wa-Ta’alaa has given the owner of the wealth authority so that he can allocate or divide THIS part of his wealth to whoever he wishes after his death, provided it meets a legitimate Islamic purpose.

In the presence of heirs the maximum that is allowed for this purpose i.e. al-Wasaayaa (the Will) is one third of the total asset, the minimum being one sixth and the most preferred one fifth.

An heir can not be included in al-Wasaayaa (the Will) unless there is permission from all the other heirs.

In addition to the above, people do not like thinking about death and the effects it has on those they leave behind, but it is something that has to be faced eventually. It is natural that you should wish your property and assets to pass on your death to according to the Islamic Shariah. By making a Will you can ensure that it does.

It must be noted that there are some assets which cannot be given away in your Will (eg. property you hold in joint names usually passes automatically to the other joint owner: this type of joint ownership is not permissible by the Shariah as it is unjust to the rights of other heirs, unless both parties of joint ownership agree that they will give the due shares to the other heirs).

If you want to change your ownership of the property from joint ownership to Tenant in Common so that it complies with Shariah then please contact us.

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