A Will is an essential legal instrument which deals with properties that have monetary value and most importantly, sentimental attachment by the testator and the family members.
There are few differences between a Muslim and non-Muslim Wills. It is essential to know the difference to avoid your Will to be deemed invalid should you decide to draft the Will on your own.
Do the same laws apply to both a Muslim and non-Muslim Will?
Different laws of distribution of the Deceased’s Estate apply to a Muslim’s Will and non-Muslim’s Will.
The Administration of Muslim Law Act applies to a Will which involves a Muslim who is domiciled in Singapore. Under the Islamic law, a Muslim can only dispose of 1/3 of his estate as he wishes or to the non-Faraid heirs (e.g. non-Muslim children, non-Muslim spouse, non-Muslim parents, adopted children, children born out of wedlock, ex-husbands/wives, relatives not entitled as beneficiaries). If he or she wants to dispose of his entire estate as they wish under the Muslim Will, the Faraid beneficiaries must consent to that or else the Will is invalid.
However, this limitation does not apply to non-Muslim Wills. A non-Muslim can freely dispose of his entire estate as he wishes. Hence, this also means that a Muslim can be named as a beneficiary under a non-Muslim Will.
Nonetheless, the Will of a Muslim domiciled in Singapore must follow the formalities that are required under the Wills Act and the Probate and Administration Act. The same applies to the Will of a non-Muslim domiciled in Singapore.
For non-Muslim Wills, there need to be two or more witnesses to the Will at the time when the testator signed it. Does the same apply to Muslim Wills?
For Muslims, there need to be two male witnesses who are above 21 years old to witness the testator signing the Will.
As for non-Muslim Wills, there can be two witnesses of any gender to witness the testator signing his or her Will.
Nonetheless, as the Court of Appeal confirms that a Will executed by a Muslim has to comply with the formalities prescribed by section 6 of the Wills Act which requires a will to be in writing and executed in accordance with section 6(2) Wills Act. Hence, a Muslim Will may not need 2 male witnesses. However to okay it safe, it is better to obtain 2 male Muslim witnesses.
Section 6(2) Wills Act:
“ Every will shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and the signature shall be made or acknowledged by the testator as to the signature to his will or codicil in the presence of two or more witnesses present at the same time, and those witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”
A debt recovery is a common legal issue in Singapore. Be it a debt recovery for payment of work done or debt recovery of a friendly loan provided, and most debtors failed to make a payment due to the financial constraint suffered by the debtor or an existing financial commitments that has higher priority than the debt owed to you. Consequently, while debt recovery can be a straight-forward process, each debt recovery can be unique to their own circumstances and situation,
As such, to ensure the higher probability of a successful recovery of the debt owed to you, it is prudent to know your debtor and to perform a due diligence check on your debtor before commencing any legal actions against them.
Knowing your Debtor and Performing Due Diligence
Before commencing legal action against the debtor, you may wish to know more of the debtor. Not only do you need to know the identity of the debtor, to increase the likelihood of a successful claim, but you will also need to know the financial status of the debtor, the debtor’s employability and the debtor’s assets in Singapore.
There may be occasions where it may not be economically viable to initiate a legal action against a debtor with no money nor assets to repay the debt to you. A legal action is expensive and acrimonious. As such, while you may be able to recover some legal cost incurred in the legal action upon obtaining the judgment against the debtor, the legal action may be for nought if the debtor does not have the financial capability to make any payment, to begin with.
You may, therefore, wish to seek legal advice to understand your case better and to know the alternative step that may be best suited for your claim.
While legal action may seem to be the best (and common) method in claiming for the debt owed to you, it may not be the most suitable option when the debtor has no money or assets available. You may, therefore, wish to consider the following alternative method available to you:
Speak to the Debtor
In some occasion, the debtor is merely stuck in a bad financial position and is intending to make payment as soon as he can. A polite but firm conversation with the debtor can allow you to arrange a settlement before the situation is escalated further. You may also be able to understand the likelihood of your success in claiming against him.
However, do seek legal advice before speaking to the debtor to ensure that you are not being taken advantage of by the debtor.
Please take note that the witnesses cannot be the beneficiary under the Will or the spouse of the beneficiary. A gift under the Will to such a witness or spouse will fail, but the gift will not fail if a beneficiary subsequently becomes the spouse of the witness.
What other legal instruments for the administration of a Muslim and non-Muslim Estate a person can produce besides the Will?
There are other legal instruments besides the Will that a Muslim can produce to ensure that his or her Estate is distributed according to his or her wish after death.
The legal instruments are namely the ‘Hibah’, the ‘Nuzriah’ and the ‘Deed of Family Arrangement’. The said documents are not applicable to a non-Muslim Estate.
Hibah:
Muslims are required to sign a legal document called the ‘Hibah’ if he or she wants to gift away their assets during their lifetime.
Nuzriah:
The purposes of a Nuzriah is to make a gift over a joint property when you are alive. The Nuzriah is mainly for properties that are held under joint-tenancy, and the rule of right of survivorship would apply due to the joint-tenancy.
Deed of Family Arrangement:
It is essential in cases where a Muslim wants to distribute more than 1/3 of his Estate to non-beneficiaries or to distribute his Estate equally to all Faraid beneficiaries for the Faraid beneficiaries to sign the Deed. The said Deed will be written evidence that they have agreed for your Estate to be distributed according to your Wasiat. Your Will is considered as valid if all the Faraid beneficiaries consent to the distribution of your Estate to be according to your Will if your Will does not follow the limitations under the Syariah Law.
The abovesaid are the few differences between a Muslin and non-Muslim Will. Nonetheless, regardless of whether it is a Muslim or non-Muslim Will, the executors named in a Muslim Will or non-Muslim Will must make an application at the Family Justice Courts for the Grant of Probate.
The Syariah Court does not grant the executors the Grant of Probate. The Syariah Court only play a part in a Muslim Estate by issuing the Inheritance Certificate to determine the Faraid beneficiaries that are entitled to a Muslim Estate.
