issues & controversies in the muslim estate · issues & controversies in the muslim estate....
TRANSCRIPT
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
Issues & Controversies In the Muslim Estate
The QuranPrevailing secular laws,AMLAMUIS religious rulings & fatwasCurrent practices, personal laws, custom
& case-laws in Singapore
Issues & Controversies In the Muslim Estate
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?
Issues & Controversies In the Muslim Estate
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)
Issues & Controversies In the Muslim Estate
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.”
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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?
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
Joint Interests / Joint Holdings
MUIS FATWASOn
(1) Joint Tenancy/ Joint Holdings
(2) Nuzriah
Issues & Controversies In the Muslim Estate
Recent MUIS FatwaOn
Joint Tenancy / Joint Property
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
MUIS General Fatwa On Joint Holdings / Tenancy
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.”
Issues & Controversies In the Muslim Estate
MUIS General Fatwa On Joint Holdings / Tenancy
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
Issues & Controversies In the Muslim Estate
MUIS – Stand On Joint Tenancy
NuzriahAs an Effective Trust?
Contingent Gift?An Instrument Of Asset Transfer?
Issues & Controversies In the Muslim Estate
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.”
Issues & Controversies In the Muslim Estate
“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.”
Issues & Controversies In the Muslim Estate
“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.________________________________
Issues & Controversies In the Muslim Estate
Consents &
Other Supplementary Documentary Evidence
(As Part Of The Documentary Regime)
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
Part Two
Issues & Controversies In the Muslim Estate
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 .
Issues & Controversies In the Muslim Estate
(1) Saeda Binti Abubakar
(2) Gedung Kuning Case
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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)
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
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.
Issues & Controversies In the Muslim Estate
“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)
Issues & Controversies In the Muslim Estate
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???
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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
Issues & Controversies In the Muslim Estate
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???
Issues & Controversies In the Muslim Estate
Conclusion
Issues & Controversies In the Muslim Estate
Hairani Saban Hardjoe
50 Armenian Street,
#03-04, Wilmer Place,
Singapore 179938
Tel: 65-63398048, Fax: 65-63347933
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