Islamic Will in Ontario: Can You Follow Sharia Inheritance Rules?

Many Muslim families in Ontario ask the same question when they plan a will: can it follow Islamic inheritance? The short answer is yes, to a large extent. Ontario law gives you wide freedom to decide who inherits, and an Islamic will is simply an Ontario will that carries out your wishes. There are a few limits, though, and some common mistakes that cause problems later.

What makes an Islamic will valid in Ontario?

A court in Ontario will not ask whether your will is religious. It asks whether it is valid under Ontario law. In general, the will must be in writing, signed by you at the end, and signed by two witnesses who are present together when you sign. A witness, or a witness's spouse, should not be a person who receives something under the will. If that happens, the gift to that person can be lost. Many families now sign with a lawyer by video, which Ontario allows when it is done properly. See our page on signing a will by video in Ontario.

Fixed shares and the one-third bequest

In traditional Islamic teaching, the estate is divided among family members according to fixed shares, and a person may leave up to one third of the estate by bequest (wasiyyah), usually to people who are not already heirs, or to charity. We are lawyers, not religious scholars, so we do not give rulings on what the correct shares are. If you want your will to follow Islamic inheritance, we suggest speaking to a scholar you trust first, writing down the result, and then asking a lawyer to put it into a will that works under Ontario law.

What a lawyer adds is precision. A will that says only "divide my estate according to Sharia" is risky, because it leaves your family arguing about what that means. A well-drafted will names the people and the shares, says who is the executor, and covers what happens if someone dies before you.

Where Ontario law limits your will

• Your spouse's choice. A surviving spouse can choose to take what Ontario's family law gives them (an equalization of property) instead of what the will provides. Under the Family Law Act the spouse must file that election within six months of the death. If they do not, they are treated as taking under the will, unless a court orders otherwise.
• Support claims. Under Ontario's Succession Law Reform Act, a spouse, a child, a parent, or a sibling who was financially dependent on you can ask the court to order support from the estate if you did not make adequate provision for them. The person must be someone you were supporting, or were legally obliged to support, immediately before your death. A claim generally has to be made within six months of the grant of probate, although a court can allow a later claim for any part of the estate that has not yet been distributed.
• Property that is not in your will. A jointly owned home, a bank account held jointly, and registered accounts or insurance with a named beneficiary can pass outside your will. If you want the Islamic shares to apply to everything, these need to be reviewed together.

Property in Pakistan, India or elsewhere

Land and buildings in another country are usually governed by that country's inheritance law, whatever your Ontario will says. Your Ontario will can deal with your Canadian assets. For property abroad, you may also need advice from a lawyer in that country. See our page for wills for new Canadians.

If you don't have a will

If you die without a will, Ontario's intestacy rules decide who inherits your Ontario assets. A married person with children, for example, leaves the first $350,000 to the spouse and the rest is divided between the spouse and children. That is not the same as the Islamic shares. Read more in our article on dying without a will in Ontario.

Next steps

Our Islamic wills page explains how we prepare these wills, and it is also available in Urdu. You can download our free will and power of attorney checklist to prepare, or call (289) 652-0529. We meet clients in English, Urdu, Hindi and Punjabi.

DISCLAIMER: This article is general information about Ontario law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.