General law will prevail over fatwa (Pt II): Nuzriah not as a substitute?

(Image credit)

Going through MUIS’ 30-odd pages of deliberation on the fatwa regarding nuzriah and joint-tenancy (where the ownership of a property is shared between two people), I have a sense that the exercise of nuzriah is seemingly recommended only on joint-tenancy properties.

Based on what I read and discussions with some colleagues, the fatwa on nuzriah is presented not as a substitute for the faraidh, but instead as a recommendation specifically on properties which were purchased under joint-tenancy agreements. Basically, this is to avoid disputes on claims of the property when there are still surviving joint-tenants living in the place.

To illustrate:

1. Husband and Wife bought an apartment together as joint tenants.

2. Husband passed away leaving $100,000, and the apartment which costs $400,000. As the Wife owns half of the apartment, the husband’s total estate is the $100,000 cash, and half of the apartment’s value which is $200,000, making it a total of $300,000.

3. Husband also has one brother. According to faraid, the Wife and the Husband’s Brother should split the $300,000 equally, making it $150,000 per person.

4. Now even if the wife gives the Husband’s Brother the $100,000 cash, she still has got to fork out another $50,000. It might be very difficult for her to sell off the apartment and get a new one. Add to that the scenario of the Wife taking care of her parents, or suffering from a disease, or facing other difficulties.

5. As such, the nuzriah is recommended to be exercised on the apartment only, which was bought under joint-tenancy agreement. This is especially useful if the wife and children are still living in the house; one wouldn’t expect them to move out after the father’s death so that it can be sold and divided to other beneficiaries; where would they stay then?

In this sense, I agree that this advantageous approach (of nuzriah) in ensuring the well-being of the immediate beneficiaries (usually the surviving wife and children living in the house), while at the same time allowing the rest of the estate (i.e. the $100,000 cash as in the example above) to be allotted according to the faraidh.

Here’s MUIS’ (ambiguous?) official reply to the matter. As for the deliberation, while from my understanding the MUIS’ paper seemed to incline on limiting the nuzriah for joint-tenancy properties, it stopped short of promoting faraidh for properties purchased otherwise.



General law will prevail over fatwa

From the national daily:

SINGAPORE’S highest court has ruled that a fatwa – a religious opinion on Islamic law issued by Islamic authorities here – will not bind the court to take the same view.

At best, it is considered only as an expert opinion – like those given by accident reconstruction engineers or forensic scientists in court.

The Court of Appeal made the ruling when it dismissed a move by the administrators of the estate of Mr Obeidillah Salim Talib to declare that a half share of his apartment should be given to his estate for distribution to other beneficiaries like his nephews.

Under civil law, when a joint owner dies, the whole property goes to the surviving joint owner, regardless of his or her contribution to it.

The split is different under Muslim inheritance laws, which provide for half the property to be distributed to the dead owner’s family members such as siblings and others.

The administrators of the estate went to the Islamic Religious Council of Singapore (Muis) in March 2007 to apply a fatwa to that effect.

But the Court of Appeal has ruled that despite the fatwa obtained from Muis by the administrators, Mr Obeidillah’s widow was entitled to the whole property under civil law.

In reaffirming a decision by the High Court on the inheritance dispute, Chief Justice Chan Sek Keong (above) said: ‘The general law will prevail against the Muslim law on this issue.’

Lawyers and academics told The Straits Times that it was difficult to tell when general law would take precedence over Muslim law as every case before the court is different.

In any case, fatwas are intended to provide ‘moral guidance’ for Muslims.

But the current ruling could have an impact on insurance claims and joint bank accounts held by Muslims.

For example, in joint accounts, the money goes to the surviving owner under common law. But Muslim laws dictate that half the amount should go to the estate.

Lawyer Halijah Mohamad, a former chairman of the Law Society’s Muslim Law Practice Committee, said the current ruling by the Court of Appeal would show ‘the way forward’ for Muslims to make their wishes known regarding their estates.

She said: ‘Joint owners could make a nuzriah, or a vow, to expressly state the share that is to be given to the surviving tenant…They could make clear their intentions as to how they want to dispose of their property when they die, right from the moment they acquire it.’

Mrs Halijah added that while the case involved private property, the impact of the ruling would be felt more by Housing Board flat owners. An HDB spokesman said yesterday about 79 per cent of Malay flat owners are joint owners.

Senior lawyer Nizam Ahmad noted that the fatwa in the present case did also indicate what Muslims could do, through a gift or vow, to put them in compliance with civil law.

It advised Muslim joint owners to make arrangements – such as making the property a gift in the event of their deaths – to make sure the surviving owner would be entitled to the property.

Final-year National University of Singapore law student Aidil Zulkifli, who had written a paper about the declining influence of fatwa as accepted legal opinion in an Association of Muslim Professionals publication last year, said although the fatwa carried no legal weight, it held ‘moral force’ as to what Muslims could do. But he questioned if the value of the fatwa had been weakened by the court’s ruling.

When contacted yesterday, a Muis spokesman said: ‘We are studying the judgment.’

About the case:

BUSINESSMAN Obeidillah Salim Talib died without leaving a will five years ago. The condominium unit in Farrer Road, of which he and his wife were joint owners, was left to his wife.

However, administrators of the late Mr Obeidillah’s estate took the issue to court, claiming half the property belonged to the estate.

They applied to the Islamic Religious Council of Singapore (Muis) for a fatwa and challenged the widow’s claim to the whole flat. The fatwa stated that in accordance with Muslim law, half the property should be shared among other beneficiaries, including the late tycoon’s nephews.

Among other things, the lawyers for the administrators argued that joint tenancy is unknown to Muslim law and the court has power to distribute the property according to Muslim law.

But the Court of Appeal held that the property is subject to the Land Titles Act and the law cannot be modified to apply Muslim law to a property subject to the Act.

Under a joint tenancy, when a joint owner dies, the property goes to the other one, regardless of how much each had contributed.

The court also noted a fatwa on the Muis website which stated that if Muslim joint owners of a property failed to make any arrangements to deal with the property before one of them dies, then the surviving owner is entitled to only half of the property.

Chief Justice Chan Sek Keong said this is ‘inconsistent’ with the court’s ruling. The death of a joint tenant means the surviving tenant will become the sole owner of the property, he said.

The court made it clear in this case that the general law took precedence over the fatwa, which has no binding effect on the court.

Of course, this isn’t recent news as it this isn’t the first time the court has overruled a fatwa. It is most pertinent to note that a fatwa is non-binding; there is no religious patriarchy is Islam, so a fatwa can easily contradict or be contradicted by another fatwa. It is up to the ruling authority at the time and space to decide on which is more just.

But what is interesting to note is that so far, it seems that all (?) the nuzriah cases have been ruled against its favor; meaning nuzriah is not legally acknowledged, at least in Singapore. So what’s the issue here? In essence, when a Muslim pass away, his wealth will be divided according to the Islamic inheritance law called faraidh, where each heir (family member) acquires a specific amount as stipulated in Islamic law. If a person wants to write a will (called wasiyyah), only a maximum of 1/3 of the wealth can be allocated for it, while the rest (2/3) must be given to the rightful family members according to the faraidh.

This means that a person (pretty much) cannot cross Sibling X from his will, as 2/3 will always be divided according to the faraidh. But what is a person really wants to doesn’t what the money to go Sibling X? That’s where the nuzriah issue kicks in. Basically in order to deprive Sibling X from his share of inheritance,  one must escape the faraidh. And in order to escape the faraidh, one must make sure he has got no money under his name at the time of death. So how does he do that? By giving out the money right before his death through nuzriah.

However here in sunny Singapore, the nuzriah is not accepted by the court, with apparently valid arguments. Judge Mohideen Rubin had already ruled in 2004:

A specific issue that falls for determination concerns an aspect called, “nuzriah”. The term “nuzriah” does not appear or feature in any of the treatises, writings or books published by or attributed to any Muslim scholars or jurists.

However, reviewing all the learning referred to and the arguments presented, I am of the view that inasmuch as the property delineated for the purposes of the so-called nuzriah would not leave the control, possession and ownership of the testator until after his demise, the said nuzriah is no less than a bequest or testamentary disposition to convey an intended but invalid gift to the persons named (mostly legal heirs), and it plainly transgresses the restrictions imposed by Muslim law. The phraseology employed in the nuzriah segment of the will declaring that the property had already been given away to the proposed devisees three days or an hour before the death of the testator is a textual anachronism and does not convert a myth or fiction into reality, nor do the words referred to render the devise as that of a transaction completed during the testator’s life…

…[M]y conclusion is that the portion ear-marked as nuzriah is void not only on account of its discordance with the principles of Muslim law relating to inheritance but also because of the said segment’s inherent uncertainty.

That being said, it seems the person-in-charge nevertheless has an upbeat outlook for the nuzriah.


Further reading:

General law will prevail over fatwa (pt II): Nuzriah not as a substitute?