A. Introduction

In Singapore, the estate of a Muslim must be distributed in accordance with Islamic inheritance laws. Islamic laws are also known as Shari'ah Laws.

Currently, PART VII of the Administration of Muslim Law Act, 1966 ('AMLA') governs the distribution of Muslim estates.

• S111(1) of AMLA stipulates that 'notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore shall, after 1st July 1968, dispose of his property by Will except in accordance with the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him'.

• S112(1) of AMLA states 'in the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom.'

It is important to realise that the 'halal' ('permissible') instruments available under Islamic law in Singapore are not restricted to distribution purely under what is called the 'Faraid' (see part E below). There are other means of managing one's wealth and estate. A person may want to consider drawing up a will to the extent as is allowed under the Shari'ah Laws, presenting inter vivos gifts (gifts made during one's lifetime), a 'hibah and ruqba', setting up of trusts, a 'nuzuriah' and so forth.

Indeed, contrary to popular perceptions in Singapore, there are many underlying principles governing the aspect of distribution of a Muslim's wealth and estate which can come into play when planning the distribution of one's wealth and estate. These principles would lend flexibility to the seemingly rigid determinates of the Faraid.

B. What Happens When Death Occurs

When death occurs, you will probably experience the following:

• All bank accounts of the deceased and joint accounts are frozen;

• There will be no transfer or dealings with the deceased's assets or the deceased's share of any assets whatsoever until the Court grants Letters of Administration or Probate. You will need to engage a lawyer to assist you in this respect.

• In cases of intestacy, the potential beneficiaries will have to appoint an Administrator(s) to undertake and ensure the proper distribution of the deceased's assets. This is provided for when one leaves a Will as the testator would have appointed an Executor/Executrix to assume that role.

C. Priority Payments Before Distribution

Before the estate of the deceased can be distributed to his heirs, all debts owing by the deceased and all prior claims against him must first be paid. Essentially, there is a duty on the part of the Executor or Administrator to settle all known and proven liabilities of the deceased prior to effecting any form of distribution to the beneficiaries.

Not in order of priority, payments from the estate are as follows:

• Payment of funeral expenses;

• Payment of all other debts owing by the deceased which should include the settlement of all outstanding medical or other professional bills, and so forth which the deceased had incurred;

• Satisfaction of all unpaid zakats, performance of Haj through an acceptable proxy and payment of 'fidyah' to redeem unobserved compulsory fasting days;

• Redemption of mortgaged property;

• Identify jointly-owned assets;

• Payment of legacies under a valid Will; and

• Distribution of net estate among Lawful Heirs (See below part E).

D. Muslim Wills ('Wasiyyah')

A Muslim testator (a person who write a Will) is allowed to leave a Will so long as its content is executed in accordance with the Shari'ah law.

A person may also appoint a guardian and/or a trustee in the Will to take care of the testator's minor children and manage their wealth until they attain 21 years of age, respectively. The guardian for his children must be a Muslim while the trustee need not be one.

It will be invalid, if the Will is written by a minor, written under duress or by a person without the proper mental capacity.

(i) One-Third of Estate

The testator is allowed to Will away a maximum of 1/3 of his total assets. Therefore, a Will can only be made in respect of not more than one third of the net estate of the testator. This is to protect those persons with a legitimate claim to the estate, such as spouses and children.

If the Will purports to bequeath more than one third of the net estate, the bequests may be reduced proportionally such that the aggregate will not exceed one third. On the other hand, if all the legal heirs voluntarily agree ('muafakat'), the testator's Will which bequests more than one-third of his total assets will be valid.

(ii) To Non-Faraid Beneficiaries

The beneficiaries under the Will cannot be any person who is a lawful beneficiary under the 'Faraid'. The testator can only make a Will in favour of his non-Faraid heirs, such as his adopted children, certain maternal relatives who will not receive under Faraid in that instance, or third parties such as close friends or proteges.

A Muslim can make a Will to give to charity or for any other purpose so long as these purposes are permissible under Syariah Law). Any bequest for a cause or purpose in contradiction to Syariah principles will be invalid. As stated earlier, the testator can name the Executor/Executrix to execute his Will.

(iii) Witnesses to the Will

There must be witnesses to the Will. These witnesses can be male or female, be they Muslims or non-Muslims. There must generally be 2 male witnesses or they must be represented by the correct ratio, that is, 2 females to 1 male.

There is no requirement for the witnesses to have knowledge of the content of the Will but they cannot be beneficiaries to the Will.

The witnesses should be people of good character who act voluntarily. They should also be 'sui juris', meaning they must be of full age and have full legal capacity to manage their own affairs. They must not be under any form of legal disability or under the power of another, (for example under guardianship).

A breach of these fundamental rules will make a Will invalid.

E. Faraid

Faraid stipulates how the estate of a Muslim is to be dealt with and distributed after his or her death in the event he/she passes away intestate. For convenience, all references to the male gender include the female gender. The rules described here reflect the rules practised under the Shafie school of thought; some differences or variations may be adopted under the Hanafi, Maliki and Hanbali schools.

The role of the Faraid is to provide a system or method of distribution of one’s assets after death in accordance with Islamic principles. These principles are specifically laid down in the Muslim holy book, the Quran in Chapter 4, Surah An-Nisaa. This is a system fo distribution which will kick in the absence of any other instruments utilised or executed by the deceased in managing or distributing his/her wealth during his/her lifetime or after his death.

This is so unless all the lawful beneficiaries come to a voluntary agreement ('muafakat') to divide the estate by any other alternative method of calculation or in any other manner. Further, if the specified heirs voluntarily agree to reduce their own entitlements accordingly, it is possible that the aggregate amount paid on the bequests could exceed the one third limit.

Lawful Heirs ('Waris')

The lawful heirs, who are specified in the Quran, are entitled to share in the net estate of the deceased in accordance with the Faraid method of distribution which is set out in the Quran.

These heirs are classified as:

• 'Ashabul-Furud': those whose shares are specifically stated in the Quran;

• 'Asabah': those who are entitled to the balance of the deceased estate but whose shares are not specifically stated; and

• 'Dhawil-Arham': the residual third group who are blood-relations but who do not belong to either of the abovementioned groups.

The list of those who fall in the Ashabul-Furud category are as follows:

The Ashabul-Furud is entitled to certain prescribed shares which are intended to effect an equitable distribution of the estate. For instance, males are given 2 shares of the estate to every share given to his female counterpart because and on the basis that they are expected to assume financial responsibility for the women folk who should be under their care.

In addition, lawful female heirs are allocated a specified portion of the estate (e.g. half or one sixth) which means they will always be entitled to a portion of the estate, regardless of how small.

Specified heirs forfeit their claim under the following circumstances:

• he caused the death of the deceased, whether deliberately or unintentionally; or

• he is not a Muslim; or

• if the heir has renounced Islam.

F. Estate Administration

The first step is for a beneficiary to apply to the Shari'ah Court for a Certification of Inheritance ('Sijil Warisan') to be issued. The Certificate will identify the surviving Lawful Heirs, state their relationships to the deceased, and specify their precise shares to the estate (e.g. one eighth portion).

The Certificate of Inheritance must be for purposes of the administration or distribution proceedings of the said estate in accordance with the Shari'ah Law.

The applicant must be one of the following parties:

• Potential lawful beneficiary to the estate of the deceased (a Muslim);

• Islamic Religious Council of Singapore ('MUIS');

• Law firm on behalf of a beneficiary;

• Public Trustee; or

• Court

As of the 28 April 2008, all applications for the Certificate of Inheritance must be made online via the website of the Shari'ah Court at www.syariahcourt.gov.sg accompanied by a Statutory Declaration. The said Declaration has to be submitted within 3 working days from the date the application is made. The application will be rejected if the applicant fails to submit the said Declaration on time. The applicant will have to pay a prescribed gazetted fee of S$12.00 and application fees of S$34.00.

To apply on line, you will need:

• the Death Certificate of the deceased; and

• the NRIC or Passport of the applicant and beneficiaries

G. Computation of Shares of Lawful Heirs

The rules prescribing the entitlement of specified heirs to a share of the net estate of the deceased are quite straightforward, although the computation of their respective shares can be fairly complex depending on the configuration of specified Heirs surviving the deceased.

You can also visit MUIS's Faraid website at www.faraid.gov.sg and submit a trial calculation. Please note that the trial calculation is merely for your own information and no other party (whether it is an individual or any other authority or the Court), is under any obligation to follow this calculation).

The table below sets out the general rules of distribution among certain specified heirs and is intended to provide guidance only for simple cases.

H. CPF and Insurance

There is a recent 'fatwa' (ruling by an authorised Islamic body)issued by MUIS on the 3 August 2010, in regard the issue of CPF monies. The position of the fatwa as it now stands is that CPF monies will go to the nominees. This is unless no nominations are made, in which case the Faraid will prevail. This is in sync with the legal position in the civil law.

In light of this, the previous fatwa which stated that the CPF monies received by nominees are merely held on trust for the beneficiaries under the Faraid, no longer applies. The nominee will now take his/her nominated share without qualification.

The position the Fatwa Committee has now taken is that CPF nominations it can be considered as new-age 'hibah' which is permissible under the Shari'ah with the usual cautions to guard against misuse by those giving, for example, the nominations should be made not with the intention of depriving a lawful beneficiary of his/her share of inheritance.

The new fatwa effectively supports the position that CPF and insurance monies are not considered part of the assets of the deceased's estate. They are under the purview and subject to the CPF Act and the Insurance Act respectively. Therefore, likewise insurance monies will go to the nominees, (even an ex-spouse) unless the deceased did not make any nominations.

Proper documents need to be submitted to the appropriate institution for claims for CPF and insurance monies.

Again, if there are no nominations made, the monies of the deceased will become part of his intestate estate which will then be governed by the rules of distribution under the Faraid.

I. Real Property

If the property of the deceased, be it a HDB property or private property, is held by the deceased and other parties as tenants-in-common, then it is clear that the deceased’s share in the property is to be divided according to his Will and/or Faraid.

All properties, regardless of whether they are private properties or say, HDB properties, if shared through a joint tenancy, which is probably the case for most estates, will now give effect to the right of survivorship as per the civil law position. This is the current state of the law in relation to joint tenancies for Muslim estates after the Court of Appeal ruling in the recent case involving the Administrators of the Estate of Obeidillah Bin Salim Bin Talib in Civil Appeal No. 70 of 2009/L.

An updated Fatwa which followed on the 3 April 2010 on joint tenancy, has suggested the use of Islamic legal instruments in the form of a nuzriah or the 'hibah ruqbah' and so forth, to affirm and facilitate the intention of a party in a joint tenancy to give effect to the right of survivorship in the event of his/her demise.

The updated Fatwa also says that in cases where a party who solely inherits a property in a joint tenancy but nevertheless wishes to distribute the deceased's share according to Faraid can still do so. In such a situation, the surviving joint tenant is not obliged in any way to dispose of the said property immediately just so he/she can make the distribution to the Faraid beneficiaries.

Further information in respect of the joint tenancy issue can be found at the MUIS website at www.muis.gov.sg. You may also wish to seek the necessary legal advice if you require specific or further advice on this issue.

J. Lease or Hire-Purchase

Properties on lease or hire-purchase are deemed to be part of the estate of the deceased even though the properties in question do not legally belong to the deceased. Therefore, the deceased would have the right to Will away these assets accordingly or they are to be divided according to the Faraid.

K. Baitumal

The Baitulmal is akin to being a public treasury for the Muslim community which function is to fund community projects and to take care of the general welfare of the community. In Singapore, it comes under the purview of MUIS, which manages and administers the Baitulmal.

In certain circumstances, part or the entire of the deceased’s estate will go to Baitulmal. They can be broadly listed as follows:

• There are no legal heirs; or

• No claimant to the estate; or

• There is a remainder after; distribution.

Therefore, in the event of either of the above circumstances prevailing, that is, the deceased leaving no legal heirs at all or there is no claimant to the deceased's estate or when, having exhausted the list of possible heirs under the Ashabul-Furud, Asabah and Dhawil-Arham, and a portion of the estate remains undistributed, that portion will be given to Baitulmal.

A person who is aggrieved by being left out of the inheritance or distribution list by reason that the person is not an entitled beneficiary and the deceased’s estate in its entirety or in part has gone to Baitulmal, then the person may approach Baitulmal. This should be on the basis that the person is of the view that there are circumstances that justify he/she receiving some share of the deceased/s estate and leaving him/her out is unfair in light of the situation in that case. In such a scenario, a person may approach Baitulmal to present his/her case for their consideration.

L. Conclusion

It is only appropriate that this write-up be qualified, in that it is meant to be a very general guide on Muslim Inheritance Law in Singapore. It is to provide a rather brief overview of the Shari'ah Law and Shari'ah position in our jurisdiction with regards to this area of the law.

Indeed, in no way is this information meant to replace case-specific and detailed advice which should appropriately be sought from legal practitioners or any other qualified party in this respect, and for any matter which requires professional attention.