Hukum Faraid and the Application of AMLA as ‘The Statutory Adjunct of Muslim Law in Singapore’

Legal Reflection on the Case of Mohamed Ismail Bin Ibrahim v Mohd Taha Bin Ibrahim1


The settling of the dust churned up by the contending parties in the Mohammed Ismail case signals the emergent need for concerns on the application of the Muslim law of inheritance (Hukum Faraid) to be more closely scrutinised by grass-root Muslims and all alike in the context of the Administration of Muslim Law Act2 (‘AMLA’). This article looks at the unique and inherently critical position of Majlis Ugama Islam Singapura (‘MUIS’) in its multi-faceted role under the AMLA regime.




This case note serves as the platform upon which the writer will examine how some issues under Hukum Faraid and the statutory regime of AMLA can best be highlighted to interested parties. Of current interest are the profiles on the services and facilities managed by MUIS and the empowerment conferred on MUIS under AMLA towards assisting and facilitating Singapore Muslims on the various religious aspects of their lives.


The application of any aspect of Muslim law in Singapore is a matter of serious concern, as the substantive laws are under the trust of a brotherhood of world order and of history. Legal scholarship alone is not exactly sufficient. Such law application in the Singapore context is a complex undertaking and needs to be considered against the dimension of substantive laws.3 Under the Sunni jurisprudence, the Muslim succession law has been described as upholding a ‘sacrosanct inheritance scheme’ which protects the rights of the legal heirs and the balance or fixed proportion of their entitlements.4


Additionally, the decision Mohamed Ismail Bin Ibrahim v Mohd Taha Bin Ibrahim5 underscores the reality that under the present AMLA regime, Singapore will continue to observe the personal laws of the Singapore Muslims. Under current policies, the secular courts will continue to have a pivotal part to play alongside MUIS as constituted under AMLA. What is the measure of this partnership between MUIS and the secular courts? This symbiosis? More significantly, how are divergent views handled?


Mohamed Ismail involves specific issues and aspects on Muslim inheritance law in Singapore. This case study reviews the statutory provisions empowering MUIS, and the areas of assistance available to the layperson who has to deal with his day-to-day problems in the Singapore context. It will also take the opportunity to highlight for open discussion, some practical and legal questions where MUIS is expected to observe, lead, interpret and apply Faraid and other applicable legislation and references specified under AMLA. It is indeed beyond the scope of this case study to go into the esoteric of Hukum Faraid; such area of expertise is to be found elsewhere among expert exponents of this niche area of Muslim law, with its nuances of local and foreign variations, as the Mohamed Ismail case bears testimony.

Background on MUIS – Regulatory Profile and Structure

MUIS was constituted under AMLA to administer Muslim affairs. AMLA also established the Syariah Court which, inter alia, issues the Sijil Warisan (Inheritance Certificates) for estates of deceased Muslims in Singapore.


MUIS first started operations in 1968 and has since grown to manage a few portfolios under the various committees established thereunder, including the Legal Committee and the Mosque Committee.


MUIS as amicus curiae

That MUIS is also to serve as amicus curiae of the courts in Singapore is provided in AMLA:6


If in any court any question of the Muslim law calls for decision, and such court requests the opinion of the Majlis on the question, the question shall be referred to the Legal Committee which shall, for and on behalf and in the name of the Majlis, give its opinion thereon in accordance with the opinion of the majority of its members, and certify such opinion to the requesting court.


The Legal (Fatwa) Committee

The office of the Mufti (President) acts as the secretariat of the Legal Committee which issues fatwas. The legal definition of ‘fatwa’ given by MUIS on its website reads:


Explanation of a legal ruling of the Mufti on an issue relating to the religion based on references on the Islamic jurisprudence as an answer to an enquirer whether an individual or a group.


Does a fatwa therefore carry any legal force and if so, to what extent? Admittedly, a fatwa ‘ruling is not binding on the court, although it should be accorded the weight it deserves’.7


AMLA generally provides for the application of the Syariah law – to be interpreted and applied by MUIS and from time to time assisted by the Legal Committee which may issue fatwas on any matter on Muslim law. The guidelines issued under AMLA as to how Muslim law is to be administered are found in these provisions:8


Subject to this section, the Majlis and the Legal Committee in issuing any ruling shall ordinarily follow the tenets of the Shafi’i school of law.

(2) If the Majlis or the Legal Committee considers that the following of the tenets of the Shafi’i school of law will be opposed to the public interest, the Majlis may follow the tenets of any of the other accepted schools of Muslim law as may be considered appropriate, but in any such ruling the provisions and principles to be followed shall be set out in full detail and with all necessary explanations. [Emphasis added]


Ratification and validation of wakaf and nazar

Since the case of LS Investment Pte Ltd v Majlis Ugama Islam Singapura9 the issue of wakaf and wakaf property had been settled so that all wakaf and wakaf properties vest in MUIS.


MUIS is also empowered to validate and ratify any wakaf or nazar created by a Muslim testator:10


(1)     Whether or not made by way of will or death-bed gift, no wakaf or nazar made after 1st July 1968 and involving more than one-third of the property of the person making the same shall be valid in respect of the excess beyond such one-third.

(2)     Every wakaf khas or nazar made after 1st July 1968 shall be null and void unless —

      (a) the President shall have expressly sanctioned and validated or ratified the same in writing in accordance with the Muslim law; or

      (b) it was made during a serious illness from which the maker subsequently died and was made in writing by an instrument executed by him and witnessed by 2 adult Muslims one of whom shall be a Kadi or Naib Kadi.

(3) If no Kadi or Naib Kadi is available as described in subsection (2)(b), any other adult Muslim who would not have been entitled to any beneficial interests in the maker’s estate had the maker died intestate shall be a competent witness.

(4) This section shall not operate to render valid any will, death-bed gift, wakaf or nazar which is invalid under the provisions of the Muslim law or of any written law.


Of the said provision, MPH Rubin J said:11


It was put in place to reinforce a fundamental Syariah doctrine that a Muslim can only give away, either by way of will or death-bed gift, one-third of his estate as nazar or wakaf. The doctrine of death-sickness and death-bed gift (“mard al-maut” or “mardul-mawt” or “mar-zul maut”) is not in issue in this case. However, for the benefit of those who are not familiar with Muslim law, I should add that the doctrine of death-sickness or death-bed gift is concerned with the legal effect of transactions entered into by persons in their death-sickness (see Coulson, [7] supra, at p 259; Fyzee, [7] supra, at pp 363 and 364). [Emphasis added]


The Russian Box Syndrome under AMLA

It is the writer’s observation that in fine-tuning the local application of the Syariah, the AMLA regime is presented with a Russian box syndrome where law application has to be examined from the macro application of the Syariah principles and doctrines, the superimposition of local legislation and observations of Malay customs as well. There are layers upon layers of law application to be uncovered. In this scenario, it has been its stated mission statement that MUIS as the appointed gatekeeper and conscience of the faith would keep its ears to the ground and concern itself with the current issues affecting and relevant to Singapore Muslims.12


The references, cross-references and fine-tuning of application of doctrines and practices and customs have now called for a sorting out of the applicable practices in a process which cannot be expected to be easily grasped by the layperson who has scant legal or other resources at his disposal.


It can be perplexing for Singapore Muslims to have to look at Hukum Faraid in the context of AMLA as well as the Wills Act,13 the Probate and Administration Act14 and other relevant laws and customs affecting land and property. As admitted at the hearing, by counsel for the defendant, the Mufti of MUIS himself ‘would be ill-equipped to handle questions on statutory provisions’.15 The layperson will and must continue to ask new questions as estate planning becomes more evolved and law interpretation becomes more complex. Case-law lessons are expensive in more than one sense of the word and usually constitute random hindsight wisdom which often comes too late for the parties involved to re-consider or to rectify their intentions and documented positions.


Two relatively recent cases dealt with by the court involving the Muslim law of inheritance are summarised below.


LS Investment Pte Ltd v Majlis Ugama Islam Singapura16

It was observed in this case that the net effect of ss 59, 62(2), 62(4) and 63(2) of AMLA was that legal title to wakaf properties vested in MUIS.


Hence, it was not within the province of the trustees, as managers, to apply to court to approve the sale under s 59 of the Trustees Act as they did not hold the legal title to the property. They were no longer trustees in the English law sense. Although the trustees in this case had obtained a court order under s 59 of the Trustees Act sanctioning the sale, it did not confer title upon the party where that party did not possess title to the property in the first place. Wakaf land is therefore deemed to be vested in MUIS under the terms of AMLA.


Re Will of Shaik Ahmad bin Abdullah Wahdain Basharahil17

The editorial note to the Singapore Law Report observes that ‘Originating Summons No 1030 of 2000 appears to be the first local case where a trustee of the will of a testator had applied to the High Court (some 26 years after the date of distribution had passed) to sell the testator’s properties freed from all encumbrances. The properties were encumbered by numerous caveats lodged by purchasers and assignees of the beneficiaries.’


In granting an order in terms of the application, the court exercised its powers under s 5 of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) and s 3 of the Residential Property Act (Cap 274 Rev Ed). The following cases were cited to the court by the applicants in support of their application for the properties to be sold free of encumbrances:


Bridgett and Hayes’ Contract, Re [1928] 1 Ch 163

Evans and Bettell’s Contract, Re [1910] 2 Ch D 438

Herman Iskandar v Shaikh Esa [1992] 2 SLR 1101

Jones v Barnett [1900] 1 Ch 370


Will of Shaik Ahmad is illustrative of the fact that notwithstanding that there is a need to expeditiously distribute Muslim assets, considerable delay nonetheless occurs sometimes. Assistance of the court in such matters is inevitable and the institution of trusts does feature frequently in Muslim estates. They should not of themselves be deemed to constitute delay nor do they render a Muslim will invalid as some legal practitioners may frivolously attempt to argue.


The Mohamed Ismail Case

Synopsis of the Mohammed Ismail case

The testator Mohammed Ismail was a Muslim who under his will left a third of his assets to a nurziah (nazar as described in AMLA), a third of his assets to two mosques and the remaining third to be distributed to his beneficiaries according to Faraid. The plaintiff (one of the Faraid beneficiaries) claimed that the will was in contravention of Islamic law. The defendant sought the opinion of the Fatwah Committee which ratified the nurziah and confirmed that the will was validly made. The plaintiff sought the court’s declaration that the nuzriah segment of the will was void since it offended Faraid and that there was to be no distribution on that portion of the testator’s assets. The plaintiff’s application was granted.


The Mohamed Ismail judgment underscores the rule that the permitted disposable assets under Hukum Faraid, which could be made the subject of a bequest under a Singapore Muslim will remains immutable and unchangeable in a case involving a purported nurziah. In this case, the nurziah was interpreted by the court to have been effective on the death of the donor. The nurziah was nonetheless held to be void as it offended Muslim law in that it was in contravention of the restriction that the equal third allocation of the assets to nurziah, the two mosques and the Faraid beneficiaries in effect altered the fixed portions of the assets distributable under Faraid.


Judicial statement on Muslim jurisprudence on testamentary power of testator

The decision in Mohamed Ismail is premised on the Muslim jurisprudence exemplified under Hukum Faraid. MPH Rubin J’s summary of how this rule operates succinctly explains the undercurrent running through the judgment. It does indeed bring the whole case into perspective in an area of the law which is without doubt relevant to Singapore Muslims. The illuminating passage is quoted below:18


      Muslim jurisprudence imposes two principal restrictions on testamentary power. The first restriction concerns the quantum of bequests, where the rule is that a person may not dispose by will more than one-third of his property. The second limitation upon testamentary power (recognised by all four schools of the Sunni Muslims, the Shafie school being one amongst them) is that a testator may not make a bequest in favour of any of his legal heirs. In other words, a Muslim cannot by a testamentary disposition reduce or enlarge the shares of those who by law are entitled to inherit (see NJ Coulson, Succession in the Muslim Family, Cambridge University Press 1971 at p 213; Asaf AA Fyzee, Outlines of Mohammedan Law (6th Edition 1965) Vol II p 20). ‘Legal heir’, in the Islamic context, is a term which is properly applied only to those relatives upon whom property devolves after the demise of the owner, by operation of law. In Singapore under s 111(1) of the AMLA, no Muslim domiciled in Singapore can now dispose of his property by will except in accordance with the provisions and subject to the restrictions imposed by the school of Muslim law professed by him. Under s 115 of the AMLA, the Syariah Court is vested with the authority to issue the requisite inheritance certificate, setting out the names of the legal heirs and their respective shares in the estate of the deceased. Without doubt, a legacy in favour of a legal or legitimate heir can only take effect with the unanimous consent of the co-heirs.


The Muslim Will

Dispositions under will – Restriction under Muslim law

Sections 111 and 114 of AMLA expressly refer to the application of Muslim law in the distribution of the Muslim estate. In the decision in Mohamed Ismail, MPH Rubin J noted the principal restriction to a Muslim disposing of his asset under a will as follows:19


A principal restriction in Muslim law, as has been declared in all the authoritative works and treatises and referred to in s 114 of the AMLA, is that a testator is not entitled to dispose of more than one-third of the property belonging to him at the time of death, and that the residue of his property must descend in fixed proportion to his legal heirs unless consent is given by all legal heirs to any deviation from the rule.


By will -– Statutory restrictions

With regard to disposition of property by will, Muslim law applies subject to the following statutory restrictions:

1    the Wills Act and the Probate and Administration Act are nonetheless to be observed; and


2    the restrictions imposed by the school of Muslim law are also to be taken into consideration where applicable.


AMLA provides:20

Disposition by will to be in accordance with Muslim law

(1)     Notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore shall, after 1st July 1968, dispose of his property by will except in accordance with the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him.

(2)        Nothing in this section shall affect —

      (a) the provisions of the Wills Act (Cap 352), other than section 3 thereof;

      (b) the provisions of the Probate and Administration Act (Cap 251); or

      (c) the will of a Muslim dying before 1st July 1968. [emphasis added]


Some of the schools of Muslim law observed in Singapore are those of the Hanafi, Maliki and Hanbali schools.21


On intestacy – Further statutory restrictions

AMLA further provides that the position of the intestate estate may, where applicable, be governed by Malay custom. The Adat Perpateh, Adat Temenggong and the Minangkabau matrilineal practices22 may well have to be considered by a court deliberating on this legal provision if and when such issues are raised.


In the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom. [emphasis added]23


However, will such claims be considered relevant to today’s Singapore Muslims or are such customary practices as the Adat Perpateh and the Adat Temenggong to be relegated to the archives of regional legal history?


If they can be considered, how would these customary practices feature vis-à-vis religious practices? Vis-à-vis Faraid?

Proof of Muslim law

References prescribed under AMLA are listed below:24


(1) In deciding questions of succession and inheritance in the Muslim law, the court shall be at liberty to accept as proof of the Muslim law any definite statement on the Muslim law made in all or any of the following books:

(a) The English translation of the Quaran, by A Yusuf Ali or Marmaduke Pickthall;

(b) Mohammedan Law, by Syed Ameer Ali;

(c) Minhaj et Talibin, by Nawawi, translated by E C Howard from the French translation of Van den Berg;

(d) Digest of Moohummudan Law, by Neil B E Baillie;

(e) Anglo-Muhammadan Law, by Sir Roland Knyvet Wilson, 6th edition revised by A Yusuf Ali;

(f) Outlines of Muhammadan Law, by A A Fyzee;

(g) Muhammadan Law, by F B Tyabji.

(2) The Minister may on the advice of the Majlis by notification in the Gazette vary or add to the list of books set out in subsection (1).


Sijil warisan (Inheritance certificate)

In connection with property inheritance, the Syariah Court issues surat warisan which is a precondition for taking out probate involving Muslim estates. The relevant provision states:25


If, in the course of any proceedings relating to the administration or distribution of the estate of a deceased person whose estate is to be distributed according to the Muslim law, any court or authority shall be under the duty of determining the persons entitled to share in such estate or the shares to which such persons are respectively entitled, the Syariah Court may, on a request by the court or authority or on the application of any person claiming to be a beneficiary and on payment of the prescribed fee, certify upon any set of facts found by such court or authority or on any hypothetical set of facts its opinion as to the persons who are, assuming such facts, whether as found or hypothetical, entitled to share in such estate and as to the shares to which they are respectively entitled.


The MUIS website provides facilities for the Sijil Warisan to be applied for online. In respect of the issuance of the fatwa, applications made by individual members of the public are issued free of charge whilst institutions and the professions are charged a fee. (See MUIS website: www.muis.gov.sg)


The nazar/nurziah ‘death-bed gift’ controversy

As earlier observed, a nurziah which is effective on the death of the testator is subject to the restriction that it should not operate to alter the fixed proportion to which the Faraid beneficiaries are entitled. This issue was settled in the early case of Fatimah Binte Mohamed Bin Ali Al Tway, Deceased, Re.26 Of the Fatimah decision, MPH Rubin J in Mohamad Ismail, said:27


It is clear from the reasoning of Sproule ACJ that the “nasr” made by the deceased in Re Fatimah is a testamentary disposition and takes effect “after and by reason of the donor’s death”. This decision, no doubt, weakens the very foundation of the defendant’s contention that the present nuzriah takes effect from the day it was made and that it cannot be regarded as a bequest.


On the interpretation of the specific issue of ‘nurziah’, the Mohamed Ismail case has clearly brought up the divergent views of the contending parties and, incidentally, that of the Mufti of MUIS who was brought in as the expert witness for the defendant.


Dr Ismail’s opinion (expert witness for the plaintiff) was that ‘the nurzriah segment, whereby the testator purported to give one-third of his estate to a number of legal heirs, was invalid under the laws of Islam’.28


On the other hand, Syed Isa Mohd B Semait, the Mufti of MUIS, expert witness for the defendant was of the opinion that ‘nurziah … has no maximum limit. Drawing up a nurziah and a will at the same time from one particular person does not contravene the Islamic Law even if the total shares exceed 1/3 of the total estate.’29


The Mufti presents a diametrically different approach from that which was finally taken by the court and prima facie deviated from the way that the application of the two rules fundamental under Faraid are usually applied. The reason submitted was that the nurziah was a device of its own genre – neither a gift inter vivos, nor a bequest.


The court concluded that the nurziah was not a gift inter vivos but a bequest. The nurziah segment contravened the Faraid restriction on distribution. The nurziah segment had failed.


That said, it is a tad more difficult to rationalise the stand taken by MUIS on the issue of joint interest in real property in the context of distribution under Faraid. Is this an instance of another new genre to be brought under Faraid?


Passing of joint interest in real property

On this issue, MUIS holds the view that the interests of the testator who held land under a joint tenancy is deemed to be distributable to his beneficiaries. Whither the rule of the right of survivorship under land law? In this regard, the writer would refer again to the words of MPH Rubin J in Mohamed Ismail, that: ‘… a testator is not entitled to dispose of more than one-third of the property belonging to him at the time of death … .’30 [emphasis added] The doctrine of survivorship is clear: under secular law; a joint interest in real property does not pass to the deceased’s estate on his death. A survivor is entitled to the property solely, by right of survivorship. MUIS’s stand on this issue is also clearly stated as follows:


… we have issued a fatwa that for properties held in joint-tenancy, those named as joint-tenants have an equal share in the property concerned. As such the beneficiaries of a deceased joint-tenant of a particular property are entitled to the latter’s share of the property.31


One MUIS sermon held in July 2001 touched directly on the issue of a joint ownership of property held by Singapore Muslims and how it is to be distributed after the death of the joint owner. It states:


Living in this developed country of ours, where the majority of us owned an HDB apartment or a private property, there are usually two or more names recorded as owners of the property. Should there be any kind of misfortune or the death of one of the owners of the property, then it is the responsibility of the remaining owner(s) to distribute the said inherited wealth, in this case a house according to the Law of Faraid.32


Of Issues and Concerns

What now of the current grass-root concerns of Singapore Muslims in dealing with their assets under Faraid and Singapore laws? The concurrent application of likely and sometimes, perceptibly irreconcilable concepts and procedures inherent in the bridging process involving religious laws and the secular laws presents its own complexities.


Some of the more common concerns are re-visited below alongside the guidance and facilities provided by MUIS.


General concerns and information on will-making

MUIS has given guidance on its website on the specified Faraid beneficiaries entitled under a Muslim will. Although the general categories of the Faraid beneficiaries are listed, it is not quite feasible to set out the computation of the entitlements given the different configuration applying to each case at the time of death of the testator or intestate. The controversial explanation offered by the Legal Committee on the issues of nurziah and joint tenancies in real property would require more convincing.


At the root of the concerns is the worry that the property owner sometimes encounters when he decides to direct his mind to estate planning. Is there a need to be involved in estate planning in the context of Faraid? The realities of the jurisprudence behind Faraid are generally understood. The need to properly manage an estate within the permissible parameters of Faraid is, however, compelling in these times.


To the above question, there are enough early case laws which evidently illustrate that many Arab families had created various trusts and bequests within Faraid. MUIS has recently issued a fatwa to the effect that there is no impediment under Faraid to Muslims creating trusts under a will where trustees may be given power of sale or postponement in accordance with the testator’s direction.33


Statutory restrictions for the death-bed gifts (nurziah/nazar) under AMLA

In Mohamed Ismail, it is recalled that a fatwa over the nurziah purportedly made under the testator’s will was issued by the Legal Committee of MUIS with the Mufti participating in the Legal Committee which was to issue a fatwa on the nurziah made under the will earlier validated by MUIS itself.

It was also unfortunate that the submission and distinction made by the solicitor for the defendant in the Mohamed Ismail case that the nazar mentioned under AMLA referred only to a public nazar was self-defeating given the private nurziah created by the testator.


AMLA defines the term as follows:34


“nazar” means an expressed vow to do any act or to dedicate property for any purpose allowed by the Muslim law;

“nazar am” means a nazar intended wholly or in part for the benefit of the Muslim community generally or part thereof, as opposed to an individual or individuals; [emphasis added]


From the Faraid perspective, there may be nuances in the above provisions which may need fine-tuning and which for the present remain outside the ambit of the Mohamed Ismail decision. There are indeed many questions on ‘nurziah’ which have not been dealt with or answered by the Mohamed Ismail decision. One of these is the circumstances under which a vow is said to be made, such as whether the ‘niat’ (intention or dedication ) has to be expressed or invoked.


Finally, according to the decision of Mohamed Ismail, the nurziah or nasar is to be understood within the statutory restrictions and preconditions imposed under s 60 of AMLA.35 At the hearing, MUIS does not appear to see it quite that way.


MUIS’s current statement on the nurziah

MUIS continues to post on its website, its description of the nurziah also known as nazar which explicitly upholds its stand that the nurziah could be performed before or after death of the testator. This explanation does little to highlight the need to minimise the problem which a testator can expect where a nurziah is treated as a bequest.


Nazar harta ialah niat oleh pemilik kepada Allah swt, untuk melakukan sesuatu terhadap hartanya. Pemilik harta boleh melakukan niat itu untuk dilaksanakan sama ada semasa hayatnya mahupun setelah mati.36 Syarat-syarat nazar harta semasa meniatkannya ialah:


a. Sihat

b. Berakal

c. Telah cukup umur ( akil baligh )

d. Disaksikan oleh dua saksi lelaki atau seorang saksi lelaki berserta sumpah pemilik harta.


Perempuan tidak dibolehkan menjadi saksi walau bagaimana ramai sekalipun bilangannya. Nazar harta ( juga wasiat ) yang diniatkan ( ditulis) melalui surat tanpa saksi hidup, tidak akan berkuatkuasa dari segi agama.

Nazar yang bersifat makruh dan haram tidak boleh dilaksanakan. Setiap nazar adalah untuk orang-orang yang di sebut dalam nazar tersebut sahaja.


Further, as mentioned earlier, issues involving ‘niat’ and pre-death and post-death performance of the nurziah remain controversial and unsettled in the context of the Mohamed Ismail decision.


Right of survivorship

It has been observed that MUIS had over the years issued several fatwas decreeing that interests in joint tenancies in real property remain the property of the deceased, to be distributed according to Hukum Faraid .


One cannot help but ask the question as to how the Legal Committee in MUIS views the application of right of survivorship inherent in the concept of joint tenancies in real property under secular law?


The fact that the interest of the deceased in a joint tenancy does not pass to his estate under secular law is pertinent. Would this issue be better handled and resolved at a statutory level rather than at a committee level?


Trusts and other estate planning issues

There are also questions on creation of trusts under a will and as to whether the postponement of dealings in such property offends the Hukum Faraid. Faraid requires the Muslim estate to be distributed as expediently as possible.


There was indeed a claim made recently that a will was void for contravening Faraid because of a trust for sale and direction for postponement made in the Muslim will. Instances as to whether an estate can be expeditiously distributed or not has to be examined in the context of today’s social matrix and in the context of other applicable laws and sometimes bureaucratic practices which may render delay or postponement for distribution imperative or justified in certain cases. Within a bona fide practice, such direction made under a will granting a postponement to a trustee would ordinarily have been a non-issue. MUIS’s direction in these matters may pre-empt unnecessary litigation.37


Further, because of the concurrent application of the laws, such powers for sale described above may also have to be read in the context of other applicable real property legislation such as the Residential Property Act38 and the Trustees Act.39


MUIS could extend its assistance to the public in these areas by publicising more widely such issues which have been raised with them and the answers or fatwas provided.


Information provided by the MUIS website does indeed deal with aspects of will-making and Hukum Faraid.


Pertinent portions of the MUIS explanation on specified heirs under Hukum Faraid are reproduced below to illustrate the complexity of having to deal with the law of inheritance and distribution, especially at the estate planning stage.40


Specified heirs

Heirs entitled to share in the net estate of the deceased in accordance with Faraid are specified in the Quran. These Specified Heirs include the following:


a. Spouse (surviving wife or husband)

b. Children (adopted children are excluded, and children conceived out of wedlock can only inherit from their mother, even if their birth is legitimised)

c. Parents

d. Paternal grandparents and paternal great grandfathers

e. Maternal grandmother

f. Descendants from the male line, ie children and grandchildren of sons (a daughter’s son, although a grandson, is not a Specified Heir)

g. Siblings including half siblings who share a common father (“consanguine sibling”) or a common mother (“uterine sibling”)

h. Nephews (limited to sons of full brothers and consanguine brother)

i. Paternal uncles

j. Male cousins (limited to sons of full paternal uncle and consanguine uncle)


These heirs are entitled to certain prescribed shares which are intended to effect an equitable distribution of the estate. For instance, males are given two shares of the estate to every share given to his female counterpart because they are expected to assume financial responsibility for the women. In addition, female heirs are allocated a specified portion of the estate (eg half or one sixth) which means they will always be entitled to a portion of the estate, regardless how small, while male heirs are often residuary heirs who are only entitled to what is left of the estate after the claims of female heirs have been met. It may happen that a residuary heir is left with nothing or a very tiny portion after claimants with specific shares have been paid off.


Meanwhile, it is observed that the current concerns discussed need to be addressed at another level altogether and also from the perspective of the testator. Some of the professional awareness programmes in respect of probate matters have necessarily now moved on to adopting a strategic approach41 of identifying and addressing pragmatic concerns and providing solutions.


A Device of its Own Genre?

If the line of thinking based on the genre line of argument is to be pursued, then these questions may be relevant:

1    Should indeed the nurziah be regarded not as a gift or a bequest but a device of its own genre, as the defendant in Mohamed Ismail contended?


2    Should indeed the interest passing to the survivor of a joint holding in real property be treated as passing to the estate of the deceased Muslim? Would the doctrine of the right of survivorship be over-reached in the case where the survivor is a non-Muslim? Is this fatwa to be perceived as another device of its own genre?


3    Should indeed MUIS’s Mufti whose Fatwa Committee validated the nurziah under the testator’s will stand as expert witness for the defendant in a case where validity of the nurziah was challenged by the plaintiff?


4    How are the rules of interpretation and application of Muslim laws in the context of the provisions in the specified Acts and other secular laws to be reconciled when different considerations are taken into account on an interpretation of a religious issue? Are there, indeed, new genre of the law in our legal system which are to be considered and treated in a different way? A hybrid?


5    More pragmatically, given the prevailing doctrine of the right of survivorship under land law, should MUIS review its present stand on its fatwa on joint interest in real property and give effect to the survivor’s legal rights?


6    Finally, should these legal matters be resolved by an Act of Parliament given the fact the AMLA is already a de facto ‘essential statutory adjunct of Muslim law in Singapore’?42


There may be no quick answers to these questions within or outside AMLA.


Looking Ahead

Notwithstanding the Mohamed Ismail decision, the interpretation of what constitutes a valid nurziah appears to be insufficiently answered by reference to the statutory provision of s 60 of AMLA alone. There remain pragmatic and legal issues which require the assistance of the secular courts and the co-operative efforts of other experts and authorities.

Where MUIS is concerned, there could be a need to align any polarised perceptions to pre-empt any rift being tested in court. The synergistic co-operation between the secular courts and MUIS can only lead to a positive equation.


Meanwhile, the observation is that Mohamed Ismail has canvassed MUIS’s mission and also put into perspective the complexities involved in bridging religious and secular laws and in incorporating or merging these laws into the legal system. Perhaps there could be better symbiosis for MUIS to work more closely with the Attorney-General’s Chambers, as it continues to work with other recognised international institutions43 on the formulation of the legal aspects of its fatwas and public statements. This might work towards narrowing any divergence in opinion already evident in some of the fatwas issued by MUIS and the statutory position taken under AMLA and the other applicable Acts.


The Expectation

Keeping in mind the above grass-root issues as well as the legal issues, the Mohamed Ismail decision is a reminder that the Singapore Muslim will need all the assistance he can get from MUIS as well as his religious and legal counsel when dealing with the various concerns. Meanwhile, the way ahead is strewn with more questions. Does he look to the local statute books, to case laws, to the religious treatises, to MUIS to the Syariah Court and/or to the secular courts for verification, for validation or for a decision in a religious-secular matter? Will the same rules of interpretation and legal culture apply? Are there concepts outside and beyond the local probate culture which need to be investigated and understood? Should the layperson face these issues only at the stage where such issues have become contentious? Law application under AMLA has been drafted in expansive and liberal terms. There is no one-dimensional route to the answers required. The responsibility lies not with one party nor with MUIS nor with the judiciary alone but an appointed team.


On the issue of the controversial fatwas, fortunately, neither case laws nor fatwas are written in stone. MUIS has itself declared that ‘fatwas can be changed according to time, place and conditions, since the basis for change is public interest and the interest of man in this world and the hereafter’.44 In observing these dynamics, it must be conceded that MUIS will be upholding that philosophy which is the essence of its mission.


The expectation is that MUIS as a statutory authority will maintain its rightful profile and continually review the nature and extent of its responsibilities mandated to it under and outside AMLA. The changing socio-legal developments in Singapore have impacted matters affecting Singapore Muslims in new waves and new ways as they must inevitably come.45 The superstructure is already well in place in terms of the constitution of MUIS, the Syariah Court, the Legal (Fatwa) Committee, the Mosque Committee, the Warees46 and perhaps other committees under contemplation. Obviously, evidentiary rules and prudential practices are some of the rules by which MUIS will continue to observe to enhance its profile and effectiveness. By now, it is also clear that beyond its partnership as amicus curiae47 to the courts, under AMLA, there are more necessary bridges and safe harbours to be put in place by MUIS for the people.



Hairani Saban Hardjoe

Chung Tan & Partners

E-mail: hsh17@singnet.com.sg

© Hairani Saban Hardjoe




1    [2004] 4 SLR 756; [2004] SGHC 210.


2    Cap 3 Singapore Statutes.


3    The learned MPH Rubin J’s ‘Introduction and Sources of Muslim Law’ set out as a preamble to the written report in the SLR in the Mohamed Ismail case commendably provides a summary guidance to an understanding of the background to the application of Muslim law in Singapore. Mohamed Ismail, supra.


4    NJ Coulson, Succession in the Muslim Family (Cambridge University Press 1971) at p 214.


5    Supra.


6    Section 32(7) AMLA.


7    Para 30 Mohamed Ismail, supra.


8    Section 33(1) of AMLA.


9    [1998] 3 SLR 754; [1998] SGCA 55.


10 Section 60 of AMLA.


11 See para 51 of the Mohamed Ismail case, infra. Refer also to the definition of nurziah (nazar) supra.


12 MUIS wbsite: http://www.muis.gov.sg.


13 Cap 352 Singapore Statutes.


14 Cap 251 Singapore Statutes.


15 Para 28, Mohamed Ismail, supra.


16 [1998] 3 SLR 754; [1998] SGCA 55. See casenote, infra.


17 [2003] 1 SLR 435; [2002] SGHC 165.


18 Para 7, Mohamed Ismail, supra.


19 Ibid para 31. The case of In Shaik Abdul Latif v Chaik Elias Bu (1915) 1 FMSLR 294 was cited by MPH Rubin J. In this case, the appeal court held (as stated in the head-note of the report): ‘[U]nder Mohammedan Law a testator has the power to dispose of not more than one-third of the property belonging to him at the time of death; and that the residue of such property must descend in fixed proportions to those declared by Mohammedan Law to be his heirs unless the heirs consent to a deviation from this rule … .’ Further, In Siti binti Yatim v Mohamed Nor bin Bujai (1928) 6 FMSLR 135, the High Court held that the will of a Muslim which attempts to prefer one heir by giving him a larger share of the estate than he is entitled to by Muslim law is wholly invalid as to such bequest without the consent of the other heirs. At para 7 of the Mohamed Ismail case, infra ‘A legacy favouring a legal or legitimate heir under Faraid can only take effect with the unanimous consent of the co-heirs: See Dr Ahmad Ibrahim, Islamic Laws In Malaya, Malaysian Sociological Research Institute Ltd 1965 at p 264.’


20 Section 111(1) AMLA.


21 The Kadiani is not regarded as a recognised Muslim sect in Singapore.


22 Refer to M B Hooker’s book on Readings in Malay Adat Laws, Singapore University Press 1970. Worthy of mention is also Shirley Gordon’s Intisari, a serialised publication on Adat Laws in the 1960s.


23 Section 112 (1) of AMLA. Refer also to s 117 ibid, with regard to restrictions governing administration of a Muslim wife’s estate.


24 Section 114 AMLA.


25 Section 115(1) AMLA.


26 [1933] 1 MLJ 211.


27 At para 48.


28 Para 21 of Mohamed Ismail, supra.


29 Para 29 of Mohamed Ismail, supra.

30 See, supra. Under land law, the interest in a joint holding of real property devolves to the survivor under the doctrine of survivorship.


31 This confirmation appeared in an e-mail from an officer of MUIS to the writer in December 2002. Notwithstanding, this stand taken by MUIS the Housing and Development Board continues to recognise the survivor(s) of property held by all joint-tenants including Muslims under the doctrine of the right of survivorship by acknowledging the survivor as sole owner even without proof of probate in specified circumstances.


32 Majlis Ugama Islam Singapura Friday Sermon 6 July 2001 M/ 14 Rabiul Akhir 1422 H Faraid: A Command From Allah.


33 The MUIS fatwa states:


After deliberation, The Fatwa Committee view that a testator of a Muslim will has the rights to provide or express direction in the will to the appointed executor/trustee as to how the estate are to be managed or distributed. This right is valid as long as the testator follows all the requirements of a will. The requirements are:

1. The executor of the will must be legally responsible (mukallaf), upright (adl) and have the knowledge and capacity to properly undertake the bequest.

2. The bequest must consist of good work or pious act as such paying debt, looking after the welfare of one’s children.

3. One should only devout [sic] one-third or less of his financial resources to bequest at the time of his death.

As for the prohibition, a Muslim testator may confer any power of sale or postponement to the appointed executor /trustee as long as the requirements are abide. [sic]


34 See interpretation s 2 of AMLA.


35 Refer to endnote 9.


36 The MUIS interpretation of ‘nazar’ or ‘nurziah’ seems to refer to gifts such as those which can be carried on during or after the deceased’s death. The English translation of this paragraph reads to this effect: ‘Nazar over property is a vow by the owner to Allah swt to perform an act over the owner’s property. Such owner may carry out the vow to be performed during his lifetime or after his death.


37 See supra endnote 33.


38 Cap 274 Singapore Statutes.


39 Cap 337 Singapore Statutes.


40 Refer also to the book by Professor Ahmad Ibrahim, The Distribution of Estates According To Shafii Law, Malayan Law Journal Pte Ltd (1976). There is also a synopsis of information on Hukum Faraid prepared by the Law Society of Singapore on the practices under the Shafie school of thought; this is reproduced on the internet.


41 At the professional level, the Law Society of Singapore under its Nuts and Bolts Series of Workshop organised a workshop led by Dr G Raman in November 2005, where issues on Faraid such as: (a) available tools for alternative mode of inheritance; and (b) how to avoid the taking over by Baitulmal (MUIS) of a Muslim estate were discussed.


42 Para 63 Mohamed Ismail case.


43 Refer to the pronouncement sought from the Mufti of Egypt. This was unsuccessfully submitted by counsel for the defendants. The document could not be admitted as it failed to comply with evidentiary rules: see para 59 of Mohamed Ismail, supra.


44 See MUIS website supra, ‘The Questions and Answers Section on Fatwa’.


45  See the speech by Dr Yaacob Ibrahim, Minister for the environment and water resources and Minister-in-charge of Muslim affairs, at the second reading of the Administration of Muslim Law (Amendment) Bill in parliament. http://app.sprinter.gov.sg/data/pr/2005101901.htm.


46 The MUIS website describes the Warees as follows: WAREES Investments Private Limited is a real estate company which is the corporatised property arm of Majlis Ugama Islam Singapura (MUIS). Its main businesses are property and project management, lease management and marketing, development consultancy, and property investment and development.


47 See s 32(7) of AMLA (endnote 6 supra) reproduced above in the text.