issues & controversies in the muslim estate · issues & controversies in the muslim estate....

Fatwas & Case-Laws

Hairani Saban HardjoeLL B (Hons) Singaopore

LL M SingaporeAdvocate & Solicitor

Of the Supreme Court of SingaporeNotary Public

Copyright: Hairani Saban Hardjoe. All Rights Reserved

Issues & Controversiesin the Muslim Estate

Quran Surah 2:282

“When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing.”

MUIS Fatwas On Joint Tenancy & Case-Laws

Issues & Controversies In the Muslim Estate

Controversies, Conflicts(Perceived & Real)

ReconciliationIntegration & Implementation

(Available Tools & Documentation)

Introduction & Scope

PART ONE: MUIS FatwaConcept of Joint Holdings

PART TWO: Case StudiesRamifications


The QuranPrevailing secular laws,AMLAMUIS religious rulings & fatwasCurrent practices, personal laws, custom

& case-laws in Singapore


Background, Context & Parameters

Application & Interpretation Problems persist in ◦ the deployment of Islamic law and practices◦ conceptual differences in secular and

Islamic laws◦ parallel application of Islamic & secular laws

Tension created by the difficulty faced by the secular courts to recognise or give effect to MUIS Fatwas.

The ProblemsIssues & Controversies In the Muslim Estate

Basic Distinctions Joint Interest and Joint Tenancy Dealings In Joint Interests Secular and Islamic Conflicts - Case-laws vs MUIS Perspective –

Perceived And Real Claims Involving Joint Tenancies, Right of

Survivorship & Evidentiary Proof In the Muslim Estate Consents & Other Documentary Proof In A

Documentation Regime ‘Sacred Trusts’, Resulting Trusts & Testamentary

Trusts Nurziah- Parallel Application Or A Checkmate?


Overview Of Legal Issues

•Two or more owners

•Indivisible shares

•Four unities of time, title, interest and possession,

•right of survivorship on death of one joint owner ??? Common law presumption

•Two or more owners

•Equal or unequal shares

•Interests can be willed awayC

B CA

Tenancy In Common

A B C

Issues & Controversies In the Muslim EstateJoint Tenancy / Tenancy In Common

Joint Tenancy

1) Joint Tenancy in land/ property holdings –with right of survivorship

2) Common law manner of holding – under Singapore secular law –(automatic right of survivorship on death of each joint owner)

Concept of Trust –express trust resulting trustconstructive trust

1)Joint Holdings/ Interests - family /communal ownership in property

2) (Harta Sharikah Milik or partnership property under Islamic law)- harta sepencarian

Concept of ‘Sacred‘Trust (Warisan)


Joint Tenancy / Joint Holdings

Premise 1It is a fact that in Islamic law there is noconcept nor doctrine of joint tenancywith right of survivohip. Fyzee.

Instead, property rights are perceived as a trust. “The Islamic property rights framework conceives of land as a sacred trustbut promotes individual ownership with a re-distributive ethos.”


Joint Tenancy

Premise 2In Singapore, unlike the situation in Malaysia wherejoint tenancy holdings are not recognised, there is nolegal impediment to a Muslim opting to holdproperty as joint tenants (with right of survivorship) ofthe kind available under secular law.


During life-time◦ Interest in property generally is subject to various secular

legislation including those listed below:1. CLPA2. States Land Act3. Land Titles Act4. Land Titles Strata Act5. BMSMA6. Housing & Development Board Act7. Administration of Muslim Law Act (AMLA)8. Wills Act


A Muslim in Singapore can deal with his proportionatebeneficial interest in a joint tenancy holding

1. By Severance2. In a sale (Transfer)3. By gift inter vivos (Hibah)4. By making a vow (Nazar)5. By statutory nomination6. By legal assignment7. By mortgage8. By creation of an express trust9. By Will – for Muslims as to 1/3rd of disposable

assets


Under a Nazar Statement as to his joint interest in aproperty, a Muslim may give or ‘nazar’ to specificpersons such interests, provided

1. his intentions are correct and2. the religious compliance requirements as outlined under the

MUIS fatwa are met.

Written Consent of his legal heirs must be obtainedto agree to distribute the balance of his estate (2/3balance) equally or in any manner which has the effectof modulating Faraid distribution. (Before/afterdeath???)

Letter of Wishes as a trust document?


Joint Tenancy – Pre-death DealingsIslamic Documentation

Faraid applies (for inheritance &distribution as to the property fallingunder intestacy and the balance estate)

By consent, renunciation by Faraidbeneficiaries - legal shares andentitlements can be modulated


Post Death

MUIS’s stand in not recognizing the automatic rightof survivorship under a joint tenancy is premised onthe presumed trust over the beneficial interest of theparties.(eg.Harta Sharikah Milik)

How is this beneficial interest in the joint holdingsto be dealt with?

____________________________________________A Muslim may deal with such interest as he wishesduring his life-time

It remains to be said that Faraid applies to his estate on his death


Joint Interests / Joint Holdings

MUIS FATWASOn

(1) Joint Tenancy/ Joint Holdings

(2) Nuzriah


Recent MUIS FatwaOn

Joint Tenancy / Joint Property


Note: Three points of clarification made by MUIS

50-50% Presumption*

“If no other arrangement or agreement has been made between the joint owners of a property, upon the death of one of the joint owners, the surviving joint owner will not have full ownership of the property. The surviving joint owner shall only be entitled to half (50%) of the value of the property. This (50%) entitlement arises from his/her position as a joint owner. “*

* Reflection of Common law presumption with no right of survivorship


MUIS General Fatwa On Joint Holdings / Tenancy

There is to be no compulsion to sell and thereby to deprive the family of the deceased joint owner of their home.“The legal [faraid] heirs of the deceased joint tenant of the property cannot, however, compel the surviving joint tenant to sell the property until such time as it is suitable for the surviving joint tenant to sell the house. At the same time, the surviving joint tenant cannot delay the sale of the property without reasonable grounds as it may “encroach” (zalim) upon the rights of other heirs.”Question of payment to the surviving joint owner still needs to be resolved.Reciprocal responsibility



Right of Survivorship –Evidentiary Proof Required

“ If, however, other arrangements or agreements have been made between the joint tenants, either through a “hibah ruqba” (ruqba-gift) or a “nuzriah” (vow) which expressly states that the property is to be given wholly to the surviving joint tenant, in the event of death of one of the joint tenants, then the entire property shall vest in the surviving joint tenant. This is consistent with the present laws on joint-tenancy in Singapore.”



MUIS does not recognise joint tenancy with an automatic right of survivorship

MUIS will give recognition to the creation of a joint tenancy with right of survivorship where there is evidentiary proof of such

intention either by way of a

HIBAH RUQBAHNURIAH

Summary & Conclusion


MUIS – Stand On Joint Tenancy

NuzriahAs an Effective Trust?

Contingent Gift?An Instrument Of Asset Transfer?


Legal Basis For A Nuzriah

The religious ruling on Nuzriah

“Nazar is ruled as harus (allowed). However this rule can becomewajib (obligatory) if it will save lives. It can also become haram(prohibited/forbidden) if it were to threaten one’s safety or lives.

The same applies to nuzriah. If the nuzriah can result in abuse orinjustice towards the rightful heir by reducing his/her share, it isdeemed as haram.

On the other hand if it is done to safeguard the welfare of thoseliving and protect him/her from losing his/her rightful dues then, itis deemed as harus.”


“Nazar” – Addressed In The Quran

Surah al-Insan ayat 7:“Mereka dikurniakan kesenangan itu kerana mereka menyempurnakan nazarnya, serta mereka takutkan hari (akhirat) yang azab seksanya merebak di sana sini.”

Surah al-Baqarah ayat 270: “Dan (ketahuilah), apa sahaja yang kamu belanjakan (dermakan) atau apa sahaja yang kamu nazarkan maka sesungguhnya Allah mengetahui Nya dan (ingatlah), orang-orang yang zalim itu tidak ada sesiapa pun yang dapat menolongnya.”


“Nazar” In AMLA“ Nazar” apart from the term ”Nazar am” is also

found in the definition section of AMLA (Section2)

An update on this definition is due.________________________________


Consents &

Other Supplementary Documentary Evidence

(As Part Of The Documentary Regime)


Note - Consent implied in the Quran.Agreement of the beneficiaries may be sought and given by those who fear that impartiality or wrong doing has been done by the testator of a Will . . . .

For instance: Consent of the legal beneficiaries is necessary if there is to be a deviation from the Faraid rules of distribution as in the case where equal distribution of the assets is sought.


Surah 2.180-182 : 002.180

It is prescribed, when death approaches any of you, if he leave any goods that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah-fearing.

002.181If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows all things.

002.182But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace (agreement) between (the parties concerned), there is no wrong in him: For Allah is Oft-Forgiving, Most Merciful.


Part Two


CASE-LAWS1. Saeda Binti Abubakar 2. Malek Bin Haji Mohamed Yusup v.

1. Haji Abdul Rahman Bin Haji Mohamed Yusup 2. Usman Bin Haji Mohamed.[ [1922] FMSLR 6

2. Gedung Kuning Saga3. Husain Safdar Abidally v Shiraz Safdar Abidally [2006] 4

SLR 8004. Mohamad Ismail Bin Ibrahim v Mohd Taha Bin Ibrahim

[2004] 4SLR756; [2004] SGHC 210.5. Lau Siew Kim v Yeo Guan Chye [2008] 2 SLR 1086. Shafeeg Bin Salim & Anor (administrators of the estate of

Obeidillah deceased) v Fatimah Bt Abud & Others [2009]SGHC 100 .


(1) Saeda Binti Abubakar

(2) Gedung Kuning Case


Law Application ProblemsPeripheral Inheritance Issues

Saeda Binti Abubakar 2. Malek Bin Haji Mohamed Yusup v. 1. Haji Abdul Rahman Bin Haji Mohamed Yusup 2. Usman Bin Haji Mohamed.[1922] FMSLR 6

Direction in the Will tying up the beneficiaries shares for 10 years was held to be invalid.

Comment: This is a case trapped in transition – before the passing of AMLA in 1964.

This case calls for the discretion of the court to be exercised and for thedistribution of the estate to be considered in answer to the call forearly distribution required under Faraidh.

The personal laws / custom of the Muslim should be giveneffect to in this circumstance just as equity under secular jurisdictionwould have been allowed to intervene.

Such cases need not be left trapped in transition.

See Saeda’s case (1922) cited earlier


Gedung Kuning Saga

Husain Safdar Abidally v Shiraz SafdarAbidally [2006]

This case deals with Ihe issue on the use of the written consent in moderating the effects of the distribution under Faraidh.

The common law approach to interpreting “consent” was applied in this case where the Plaintiff contends that the “consent” was given under a mistake of fact for equal distribution of the estate among the legal heirs. This consent was withdrawn when a second will of the testator was found. There was therefore no consent given in the situation of the changed circumstances. The Court of Appeal gave judgment for the defendant.for equal distribution.


Consent

Husain Safdar’s case raises more questions than provides answers. Questions on the bona fide of the consent, its revocation and consent given before or after the demise of the testator Significance of the Letter of Wishes (as a trust document/) was

not raised nor discussed.

All these issues need answers.In these situations, MUIS’s position as a ‘hisbah’ and an amicus curiae is very relevant to the community.


Substantive Islamic Law Issues Requiring Determination

The Statutory Declaration, Other supplementary documents

Use of the Letter of Wishes needs to befurther researched even though its deploymentmay have been perceived as of ‘no contractualeffect’ in Husain Safdar.


Other Supplementary Documents

Mohamad Ismail Bin Ibrahim v MohdTaha Bin Ibrahim [2004]

This case of Mohd Ismail saw MUIS and case-law indisagreement over the validity over the deployment of theNuzriah (a generic for Nazar).

There was an added complication there as the Nuzriah in thatcase was a testamentary Nuzriah (made under theWill, and not created separately)


Nuzriah & Nazar Statements

Lau Siew Kim v Yeo Guan ChyeDevelopments noted in the aftermath of thedecision in Lau Siew Kim v Yeo Guan Chye.

This case advances the need for evidentiaryproof to be produced to support the intentionof joint owners if a resulting trust is to be reliedupon to rebut the presumption of the right ofsurvivorship under a joint tenancy.


Right Of Survivorship

Comment : It would seem that this case is inconsonance with the position taken by MUISon the right of survivorship - in that the rightof survivorship is a right that must be clearlystated and for which the intention to enjoy thebeneficial interest in the joint holding must besupported by evidentiary proof.


“Evidentiary Proof”Lau Siew Kim v Yeo Guan Chye [2008]

For Muslims, the Nazar Statement would also represent for purposes under secular law the evidentiary proofrequired that the surviving joint tenant was or was not intended to have the right of survivorship.(should doubt be raised on the automatic right of survivorship)

At the next level, the Nazar Statement must also pass the test set down for religious compliance of correct intentions and non-abuse and other compliance requirements as set out in MUIS Guidelines and General Fatwa on Joint tenancies.

Shafeeq’s Case [2009]

1. Re-enforces the right of survivorship as inherent in the Joint Tenancy holding

2. Re-affirms parallel application of Islamic law and secular law

3. Raises issues of Muslim-Non and Muslim entitlements in Joint Tenancy Holdings

4. Submission on ‘harta sepencarian’ demolished and sidelined as part of the MUIS fatwa on joint tenancy holding.

5. Role of MUIS as amicus curiae is acknowledged but the court nonetheless again would not give effect to MUIS fatwa on the joint interest of the deceased joint owner which MUIS interpreted as ‘harta sepencarian’. (a joint interest)


Right Of Survivorship

As an express trust - warisan Instrument based on contingent gift (hibah

ruqbah), a vow Evidentiary proof of intention in dealings with

beneficial interest and right of survivorship in joint tenancy holdings

Syariah-compliant instrument confirming intention Effective Instrument of Transfer???


A basic sample form of the Nazar Statement has been made available by MUIS.

Usage

For now, the NS is used only in cases involving two joint tenantswhere one spouse or an immediate family member leaves his/her share in joint property to the survivor.

Multiple joint owners are not in the contemplation of MUIS general Fatwa for now.

restrictions and exclusions imposed under applicable secular laws must be assessed and taken into account

The NS – is not presently used as an instrument of transfer. As a non-testamentary trust?

Dealings in wholly owned property by way of a NS remains a controversial issue. Abuse of the NS is one consideration

When deployed as a testamentary trust,under a Will, the 1/3rd limitation rule under Faraid applies and distribution to legal heirs are prohibited


Nazar Statement - Limitations

Right Intentions ‘Sacred trust’ Technicalities of form, execution – intention,

witnesses, compliance requirements on revocation

Religious rites and compliance requirements expected by MUIS must be observed

Express statutory Intervention


Nazar Statement - Pitfalls

Two parallel sets of laws exist

One set of laws does not necessarily abrogate the other

In a plural society secular law applies to all, including Muslims, unless excluded by statute or otherwise

Islamic law is observed where there is no dispute or claim challenging the application of Islamic law by claimants in doubtful situations

Reconciliation is possible by the proper deployment of the Islamic practices premised on hibah, nazar and trust

The Nazar Statement can be an effective trust document in many situations but its validity is dependant on the double tests of compliance at both secular and islamic law levels

As an effective instrument of transfer???


Conclusion


Hairani Saban Hardjoe

50 Armenian Street,

#03-04, Wilmer Place,

Singapore 179938

Tel: 65-63398048, Fax: 65-63347933

Thank You