[Using of will and trusts for inheritance : Waqf]

Fatawa Question

Dear Br. Dr. Monzer, Walaikum assalam warahmatullahi wa Barakatuh. Thank you for your detail response--it is very helpful. 1-What I understand from your response is that while under Waqf property is transferred to trust permanently and cannot go to the heirs at any time, under Wakalah of Waqf, the trust is temporary and dissolves with the death of the Waqif or trustor. In the former case, how is the violation of inheritance law (as the heirs do not have legal ownership of their inheritance which lies with the trustee, which probably is the point of Abu Hanifa) resolved ? This highlighted statement is inaccurate. The trust is either Waqf or Wakalah (meaning Amanah). Western laws makes the trust under all cases owns the property and have the trustee acts according to instructions. In Wakalah trust owner remains the trustor / founder and end by his death. So if you make a trust with no reference to being Waqf or Wakalah it needs to be interpreted on either way. It shows that the intention is to distribute to heirs then it is Wakalah. In other words, when a man comes to me I first tell him all the above and the difference between them and ask him about his desires which route he wants to take. Then make the trust with distribution or without it so that we set it the right way. Notice where does the problem lie ?! It is in the fact that trust actually owns the property in western laws and yet it allows distribution to heirs. The underlying philosophy is that in Shari’ah ownership right is given from Allah for lifetime only and at death it goes back to Allah who distributes it as he likes (as he gave it in the Qur’an). In western laws ownership is absolute therefore you can do anything you want with it even after death. 2-When it is a Waqf ownership is transferred to the trust permanently and the heirs, family or any other beneficiary will have only the right of deriving benefits / revenues as dictated in the document. Ownership of assets does not go to heirs at any time unless the founder dictates it been liquidated and distributed in the above case ; I was saying that heirs do not get full ownership of the property, but only beneficial rights. While searching for sources for this paper, I found an interesting related issue that may interest. In Labuan offshore financial center one can also establish a foundation for asset protection and management. Foundation is a European concept which appears to be a mixture of a trust and company. By creating a foundation, the ownership of property moves to the foundation itself and there is a council (like a board of directors) that governs it. Like a trust the revenues of the assets of the foundation can be distributed to specified beneficiaries. Unlike a trust, the founder can have control (as a founder or through the council) on how the foundation is managed and run. The law in Labuan says that Islamic foundations can be established. I was wondering what would be the Shari’ah perspective on this type to entity. Thanking you again and best regards, Habib

Fatwa

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Publication Date

2011-02-17

Main Subjects

Economics & Business Administration
Financial and Accounting Sciences
Islamic Studies

Topics

• Islamic jurisprudence
• Inheritance
• Waqf

No. of Pages

2

Data Type

Fatawa

Language

English

Record ID

BIM-728365

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• MLA
• AMA