Canadian Islamic Wills AR Law Areesha M. Raja Barrister & Solicitor

Topics Legal Check-up Introduction of Islamic/Shariah Wills Canadian Wills Distribution and inheritance in Islam Dying Without a Will Legal Issues in the Muslim Community

LEGAL CHECK-UP LIVING WILL: WILL: Power of Attorney for Personal Care Power of Attorney for Property WILL: Do you have children? Do you own property in Canada? Do you owe have debt? Are you holding money for someone else? Did you get married after making your will?

Al-Wassiyah “It is prescribed for you that when any of you approaches death, if he leaves any good, let him make a will for the parents and other relatives”[2:180]

Canadian Wills Will: Legal Document, distribution of property after death Testator: Person who is making the will Executor: Person/manager appointed to divide/liquidate wealth Trustee: Person appointed to handle trusts. Beneficiary: Person whose benefits from will (Spouse/children)

What you need to do to have a valid will? Types of Wills: Formal Will Holograph Will Notarized Will (Quebec) What you need to do to have a valid will? Written documentation that is signed, directing the distribution of your property when you die.

Wills in Canada in line with Shariah How do you distribute your wealth and draft your will according to Shariah law? Attach a schedule to your will Name an Imam in your will that will decide the distribution. Islamic Inheritance Calculator: http://www.inheritancecalculator.net/

Dividing according to Shariah Law: Testator cannot bequest more than 1/3 of his net estate. It is permissible for the parents to gift a property or some wealth to a specific child while alive (though fairness to all children is encouraged). That property is now the ownership of the child, therefore it is not considered part of the inheritance.  The other scenario would be that the parents inform and seek permission from all the children of what they intend to do (verbally or in writing), there after that can be included in the will. 

DYING WITHOUT A WILL (INTESTATE) Consequences: A spouse doesn’t not automatically inherit all of the property Spouse does not have a right to decide how property will be divided among children. Spouse cannot choose who will handle arrangements for division of estate assets. Next-of-kin do not have the right to decide how to divide up the estate, to minimize tax. Distribution of estate decided by rigid legislation Delay can be for more than one year since death.

SUCCESSION LAW ACT OF ONTARIO Spouse: Entire Estate to spouse Spouse + 1 child: First $200,000.00 to spouse, remainder split evenly Spouse and children: First $200,000.00 to spouse. Remainder: one-third to spouse, two thirds to children divided equally. No Spouse +children: All children share equally. No spouse, no children: Entire estate to parents, if no parents then siblings share equally. No lawful heirs: Property of Province.

THE FAMILY LAW ACT Surviving spouse is given 6 months to make an election under FLA. Under the FLA, at the death of a spouse, the surviving spouse can claim for an equalization payment under the FLA instead of taking under the will.

What to include in your will: Who you want to give your property to after you die Gifts you want to make to friends, family and charities. Guardianship of children Burial requests Trusts for children/grand children

What Happens to your Will after you die? Trustee will have the will probated. Trustee will make an application for a “Certificate As Trustee With a Will” Trustee will pay probate fees on the deceased property: $5.00 for every $1000.00 (<$50,000)= $250.00 $15.00 for every $1000.00 (>50,000) =??? Court will issue the Certificate. Trustee takes certificate to banks, real estate lawyers, accountants etc.

Questions: What is better, give under a will or put child in joint ownership of property? Should all my bank accounts be joint with someone? What about my jewelry? What if I die without a will and my children divide my property equally among themselves?

Scenario #1 House owned by husband and wife as joint tenants. 3 children Bank account in husbands name Rental condominium Husband dies without a will

Scenario 2: Husband and wife own a house jointly. Husband in his will leaves the house to his children according to Shariah’ rulings. Husband dies, wife does not agree to the distribution of the property.

CALCULATE ESTATE ADMINSTRATION TAX Assets at death: Matrimonial home: $250,000 Muskoka Condominium: $350,000 Pension Plan (husband Beneficiary): $100,000 Term of life insurance with estate as Beneficiary: $75,000 Jewelry: $18,000 Bank accounts: Own: $7,500 Liability at death: Mortgage on Muskoka Property: $50,000 Visa Bill $10,000

CALCULATE ESTATE ADMINSTRATION TAX Assets at death: EXCLUDED Matrimonial home: $250,000 INCLUDED Muskoka Condominium: $350,000= $350,000 EXCLUDED Pension Plan (husband Beneficiary): $100,000 INCLUDED Life insurance (estate Beneficiary) $75,000= $75,000 INCLUDED Jewelry: $18,000= $18,000 INCLUDED Personal bank accounts: $7,500= $7,500 Liability at death: INCLUDED Mortgage on Muskoka Property: $50,000 EXLUDED Visa Bill $10,000 TOTAL: $400,500 Tax: 50,000 x 5 per thousand= $250.00 351,000 x 15 per thousand= 5,265.00 $5515.00 TAX

Legal Issues facing oUr UMMAH: Consequence of an invalid will Will Challenges Family law issues