This month’s blog post was written by Hanaa Al Sharief, Partner at McInnes Cooper.
For many families, estate planning is not only about the transfer of wealth, but also about preserving values and honouring deeply held beliefs. For Muslim clients, this includes ensuring that their estate plan aligns with Islamic (Sharia) principles.
In Canada’s increasingly diverse environment, it is important to understand how these principles intersect with Canadian law. While each client’s circumstances and level of observance will differ, several core considerations arise consistently in Islamic estate planning.
Balancing Canadian Law and Islamic Principles
Canadian law allows individuals significant flexibility in deciding how their estate is distributed. By contrast, Islamic inheritance law introduces defined limits intended to ensure fairness among family members and to protect the rights of close relatives – it provides clarity by defining who is entitled to share in an estate and in what proportions. While interpretations may differ among Islamic sects, the treatment of close family members is largely consistent.
A central feature of Islamic inheritance law is the division of an estate into two components: the discretionary one-third, known as the waseeya, and the mandatory two-thirds, known as fara’id.
Inheritance Rules
The waseeya is the portion a client has control over. It can be used to benefit individuals or causes who would not otherwise inherit under Islamic rules. In practice, this often includes charities, friends, adopted children, or non-Muslim relatives. However, an important nuance is that many scholars take the view that the waseeya cannot be used to increase the shares of existing heirs, though interpretations may vary across different schools of thought.
The fara’id must be distributed according to prescribed rules under Sharia law. Fara’id beneficiaries generally include primary beneficiaries (such as spouses, parents, and children) and contingent beneficiaries (including siblings, grandparents, grandchildren, and more remote relatives), depending on survivorship and hierarchy.
Within this framework, certain shares are fixed, which is often where planning becomes more technical. For example, a spouse does not typically inherit the entire estate. Instead, the share is usually one-quarter if there are no children, or one-eighth if there are children. Children generally receive the remainder after fixed shares are allocated, and a son typically receives twice the share of a daughter. Parents are also included: where there are children, each parent often receives one-sixth, with the father sometimes receiving an additional residual portion depending on the family structure.
The key takeaway for lawyers is that these are not guidelines – they are fixed rules. The estate plan must be structured around them, rather than adjusted after the fact.
Structural Risks in Conventional Spousal Rollover Planning
The conventional Canadian approach of leaving the entire estate to a surviving spouse is often incompatible with Islamic inheritance objectives. Some Muslim clients adopt this approach expecting the surviving spouse to later distribute the estate in accordance with Sharia law. While well-intentioned, this can create unintended consequences.
Under Sharia law, inheritance rights vest immediately upon death, rather than at a later stage. If assets pass outright to a spouse, those entitlements may not be preserved. Over time, assets may be commingled, or family circumstances – such as remarriage – may change, making it difficult to ensure that children and other beneficiaries ultimately receive what was intended.
Asset Structuring and Estate Coordination
Estate planning in this context extends beyond the terms of a will to include how assets are held and transferred. Joint ownership arrangements, beneficiary designations on registered plans, and insurance proceeds may pass outside the estate and operate independently of testamentary instructions. As a result, those assets may not be subject to the fara’id distribution.
Trust structures and similar mechanisms can be used alongside these arrangements to balance the financial interests of a surviving spouse with the preservation of capital for children and other heirs, in accordance with Islamic principles. Ensuring that asset ownership, contractual designations, and testamentary provisions operate consistently is key to achieving a coherent and effective overall framework.
Selection of Executors
Executor selection deserves careful consideration in this context. Administering an estate under fara’id rules can be more complex than a typical distribution. Under a strict application of Islamic law, executors are often expected to be Muslim. In practice, however, some clients may prefer to appoint corporate executors, particularly where estates are complex. In such cases, it is important that the executor clearly understands the client’s religious objectives and that they are documented in the estate plan.
Respecting Religious Burial Practices
Islamic estate planning also includes clear direction regarding burial. Under Sharia law, cremation is prohibited and burial is required, with an emphasis on dignity and prompt timing. Including these instructions in a will or related documents is not merely a formality. It can be especially important where there are no immediate family members or community contacts available at the time of death. In such cases, default institutional processes may apply, and those processes may not align with Islamic requirements. Clear instructions help ensure that the client’s wishes are respected and can prevent outcomes that would conflict with their beliefs.
Guardianship for Children
A key priority for many Muslim clients is ensuring that their children are raised within the faith, and they often express a preference for appointing guardians who share their beliefs. However, Canadian courts ultimately determine guardianship based on the best interests of the child. Where preferred guardians reside outside Canada, additional complexities may arise. Discussing these scenarios in advance and clearly documenting clients’ intentions can help reduce uncertainty.
Personal and Medical Directives
Islamic principles may also influence personal and medical decision-making. Medically assisted dying is not permitted, and there are differing views on the withdrawal of life-sustaining treatment in cases of serious illness. Despite these differences, there is general agreement that basic care, including nutrition and hydration, should not be withheld. These issues are highly personal, and estate planning discussions provide an opportunity to ensure that individual preferences are understood and appropriately documented.
A Thoughtful, Integrated Approach
What distinguishes Islamic estate planning is not only the rules, but also its defined framework. There is a built-in structure: one-third that may be customized (waseeya), and two-thirds that must follow prescribed rules (fara’id).
For advisors, this area underscores the importance of combining technical expertise with cultural and religious understanding. This means thinking beyond the will, carefully considering how assets are held, and helping clients implement a plan that reflects both their legal and religious priorities.
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