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When Faith & Law Collide: Issues Faced by Muslims with International Assets

So, you are a Muslim living in Singapore or have assets here. Are you subjected to Muslim inheritance law? For your international assets, which country's Muslim law should you adhere to? What do you do if local laws, for example rules on property transfer, contradict with Muslim laws? Which one should you follow? Immortalize spoke to Ahmad Nizam Abbas, Managing Director of Crescent Law Chambers LLC, on what Muslims with international assets should be on the look out for when doing their estate planning.


 

Name: Ahmad Nizam Abbas

Company: Crescent Law Chambers LLC

Estate Planning Specialization: Muslim family law

Based Country: Singapore

Service Style: Empathetic, Compassionate

Anything Interesting: Die-hard football and Arsenal fan





Q: Can you tell me about yourself and how you got into law?

Nizam: I have always had an inclination for areas which required me to use a lot of analysis, thinking and logic. General Paper was my best subject, and given that my strength was in writing, law was the most natural choice even though the only thing I knew about law was what I saw on TV.



Q: How many years have you been advising on Muslim law and what has your journey been like?

Nizam: I graduated in 1991, which is more than 30 years ago. The irony is that I did not study Family law or Muslim law in law school. During the summer holidays, I did an internship with a firm that did a lot of Criminal and Family law and I found that I resonated deeply with issues that families and individuals face.


I used to go up to Malaysia just to stock up on books on Muslim law. My family would be out shopping and I would ask them to leave me at a bookstore and meet me back at the hotel at the end of the day, where they would be amused to find me deep into research and reading.


I built up my own library, attended conferences and tapped on the experience of more experienced lawyers. At one point, when I was then serving on the Council of the Law Society of Singapore, I was asked to set up the first ever Muslim law Practice Committee. I subsequently served as Chairman for more than a decade.


More recently, I published a book called ‘Muslim Family Law In Singapore’, which is the first dedicated book on Muslim law using case laws from the Syariah Court and High Court of Singapore. It is a first of its kind in Singapore.


Over the years, I’ve learned that there are many different layers of issues to Muslim law. I obtained my Masters on Islamic Law and Islamic Finance from the Singapore Management University more than 10 years ago when I was already 45 years old. My personal research and reading on this subject continues every day.



Q: What sparked the idea for a book on Muslim Family law in Singapore?

Nizam: Prior to my book, there were no proper textbooks on Muslim Family law in Singapore. Lawyers were reliant on articles or papers written before Singapore’s independence by our then Attorney-General, Ahmad Ibrahim, which were very informative and a great source of history for me, but they were not exactly textbooks which provided current or practical information to guide practitioners in Court.



Singapore’s First Muslim Family Law Book

The industry has been relying on Muslim law textbooks from overseas that are largely based on legislation of another country. While Muslim law is universal, if you go deeper, every state has its own legislation and each of them have their own Syariah Court and rules on inheritance.


There are a lot of commonalities but there are also nuances that are different. You cannot simply use the rules of another country and apply them to Singapore.


That’s why I, with my co-authors, wrote the book to fill this gap. This book is not intended to replace the writings of Ahmad Ibrahim but it is hoped that it can at least be a contemporary go-to resource for people looking to learn about Muslim law, both in divorce cases as well as inheritance in Singapore.



Q: Do you have to be a Muslim to practice Muslim law in Singapore?

Nizam: In Singapore, you do not need a special qualification or pre-requisite to practice Muslim law. By virtue of the Legal Profession Act, any advocate and solicitor in Singapore can appear in the Syariah Court.

While there are no statutory requirements for lawyers to practice Muslim law, there are other ethical rules such as the Professional Conduct Rules that state that you should not take on a case where you have no expertise in or familiarity with. It is very much the personal decision of a lawyer to decide whether to take on a case.



The Importance of Understanding Muslim Estate Planning

There have been instances where lawyers have found themselves facing a negligence claim in the drafting of Muslim wills or in the handling of Muslim inheritance. I have seen wills drafted by lawyers who may not be aware that the will of a Muslim deceased domiciled in Singapore must be in compliance with Muslim law. This means that simply putting “in accordance with Muslim law” does not render the will compliant with Muslim inheritance law.


It is very sad and tragic when the family finds out that the deceased’s will may be invalid if the estate distribution is inconsistent with the Muslim inheritance law.



Q: For Muslim families with no male heirs, would you say that the will is the worst estate planning tool for a father who wants to keep everything within his immediate family (i.e., his wife and daughters)? Are there better ways to keep the assets within the immediate family?

(Context: In Muslim inheritance law (called Faraid), male heirs get more than female heirs and in the absence of male heirs, for example a son, the brothers of the deceased will get a share of the deceased’s estate. Generally, a Muslim can only write a will to give assets to people who are not beneficiaries under Faraid distribution.)





Nizam: This is a typical question and indeed a very real concern. First, we have to take one step back and ask the testator (the person making the will), “What do you want to do? What do you want to say in your will?”. We then highlight the limitations of the will and let him know that he cannot give everything to the daughter under a will.


However, there is an exception. What you can do in your will is to get the beneficiaries to consent to a redistribution.


For example, in a scenario where the testator only has daughters and no sons, but has brothers (i.e., uncles of the daughters), the beneficiaries of the testator’s estate would likely be his brothers and his daughters. In that case, sometimes, we will meet with the uncles and ask whether they are willing to give back or pass on their share to the daughter. This redistribution is allowed.


What isn’t allowed is the testator indicating that he does not want his assets to be given to his brothers and only to his daughters because that will be transgressing Muslim law. Instead, he can persuade his brothers to donate their shares to his daughters.


While we cannot bind the uncles to such wishes, the testator can still indicate such wishes in his will, i.e., that he wishes for his brothers to donate back the assets to his daughters. You can also draft a deed of family arrangement after the will has been written to reflect that the uncles agreed to such an arrangement.


Now, the question is, is it foolproof?


In 2016, there was a High Court decision on this that went all the way to the Court of Appeal. A family of sons and daughters had agreed, when their father was still alive, to receive their father’s assets in equal shares. After the passing of their father, they had another family meeting where they confirmed the collective agreement to respect their father’s wishes for equal division. Two months later, one of the sons changed his mind and wanted to follow Faraid.


The Court of the Appeal stated that when you make an agreement, you make a new contract. The siblings made a contract amongst themselves - they were not forced, and this was a voluntary decision made to respect their father’s decision. They were thus bound by what they had agreed to, which is not inconsistent with Muslim law.



The Power of Promise in Islam

Under Muslim law, the giving of a promise is binding. Your promise is very powerful. When you promise to do something, it means you can be held to it. Therefore, the court rejected the brother’s application and upheld the agreement.


Apart from keeping promises and honoring one’s trust, I think we still need a lot of public education about why males get double the amount of assets than females in Muslim inheritance law. The purpose of it is primarily about responsibility, to assist them in looking after the females.





Q: What if the uncles disagree with the testator’s wishes? Are there any other tools out there that a testator can use so that the assets stay within the immediate family?

Nizam: Yes, the other tool that we can consider doing is called Hibah Ruqba, where in this case, the father, gift his assets to his daughter while he is still alive, and if he passes away, the daughter will have ownership of the assets. If the daughter passes away first, then the assets go back to the father.


Alternatively, he may consider doing a trust because that insulates the property from the inheritance, which is a tool I see being used increasingly.


However, not every family can afford to do a trust because for example, for real estate, when you give something, it amounts to a conveyancing transaction and therefore, there are stamp duties involved.



Q: What’s a typical client for you?

Nizam: There is one niche area that I deal a lot with – clients with cross-border assets such as foreigners who live in Singapore or have Singapore assets. These clients tend to be very particular about privacy and would ask not only about their assets in Singapore, but also whether what they do in Singapore will be affected by the laws of their home country.


When it comes to such cross-border issues, I would be careful about the advice I give and would usually look for my counterparts in those countries and work with them regarding local laws.



Q: Are there any interesting or uprising tools that Muslims, expats or locals, with international assets increasingly use that others can consider?

Nizam: Speaking to my friends from Dubai and Malaysia, I think the current big thing is Islamic trust because it has a lot of potential to protect the beneficiaries, coupled with other benefits. However, it's also an instrument that is very complex, because Muslim laws have a lot of prohibitions that we need to be very mindful of. It is not the case of just using a conventional trust template and labelling it as an Islamic trust.


This is an evolving area, which makes it complicated. We see Islamic trust developing in Malaysia and parts of the Middle East. I am always consulting scholars in other countries and reading their works.



Q: What are the top 3 things that either Singaporean Muslims with foreign assets, or Muslim expats in Singapore need to be aware of?

Nizam: First and foremost, you need to find out whether Singapore law applies to you. If you are already domiciled in Singapore, it does apply. If not, then the laws of your own domiciled country will apply.


Secondly, regardless of whether you are domiciled in Singapore or not, you have to find out whether the assets that you are handling or thinking of giving (i.e., the subject of distribution), are affected by any particular local laws. An example would be property. There are property laws that will be enforced regardless of where your home country is.


Thirdly, for people who have assets in different countries, you need to find out the specific legislation and laws that govern those assets in those countries.


Therefore, it is insufficient to only know Muslim law in a vacuum. As a practitioner, you always need to do an overview and see how Muslim law operates in harmony with other laws of the land.


Q: How do people recognize qualified Muslim lawyers if there is no special qualification needed?

Nizam: On the law society website, there are lawyers who have declared Muslim law as their area of practice. Unfortunately, this is not a foolproof system as there is arguably no monitoring mechanism of a lawyer’s proficiency or experience in this area.


Another way would be through word-of-mouth or looking through a lawyer’s portfolios but not every lawyer puts down their portfolio on their websites. So, it's very difficult to tell and it's still very much either by referral or through reported cases in the media.



 

Looking for lawyers that can deal with Muslim law? Find one here.

 


Q: What are the keywords that you think would represent you best?

Nizam: Empathy and compassion. The layout of my office room probably best describes how I deal with my clients. It is curated in a way that makes people feel comfortable enough to discuss anything. People come here with a lot of thoughts and worries, and I am here to help them find solutions that may be difficult for them to find on their own. It’s really about understanding the deepest concern that the client has and what the root of the problem is.



Q: Can you tell me more about your interests and hobbies?

Nizam: I am a football and Arsenal fan. I live and breathe it, and my office is filled with club memorabilia. Whether weekdays or weekends, I will always set aside time for my team's match. That includes if they're playing at three or four in the morning.


This interview has been edited for length.



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FAQs

What is Faraid in Singapore?

Faraid is the Islamic Law on Inheritance and deals with the distribution of a deceased Muslim's estate. If you are a Muslim and after you pass away, your estate will be distributed to beneficiaries based on rules stated under the Faraid.


Can a Muslim make a will in Singapore?

Yes, if you are a Muslim domiciled or permanently residing in Singapore, you can make a will in Singapore. However, for the will to be valid, the will must be in compliance with Muslim inheritance law, also known as the Faraid. For example, you can only give away 1/3 of your assets to people who are not beneficiaries under Faraid distribution in your Muslim will.


What are some of the estate planning tools available for Muslims in Singapore?

Muslims in Singapore can use tools such as a will, Hibah Ruqba, Islamic trust, and deed of family arrangement for estate planning. However, you must be mindful of the prohibitions under Muslim laws if you decide to use any of these tools. You can find a list of Muslim law proficient lawyers here.


 

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Disclaimer: Nothing in this article or site should be construed as providing legal advice or advice of any sort. The information provided are general in nature and may become inaccurate over time. Please consult a professional for advice.


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