Article contributed by Najwa Hamid, Officer, Bar Council Syariah Law Committee; and photos by Muhammad Bazli Naim b Abdul Azid, Administrative Assistant, Bar Council
On 20 Apr 2019, the Bar Council Syariah Law Committee (“SLC”) organised a seminar entitled “Perancangan dan Tuntutan Harta Sepencarian, Hibah dan Wasiat” at the Kuala Lumpur Bar Auditorium.
The speakers for the seminar were Amir Bahari and Haji Mukhtar b Abdullah, members of SLC. The seminar commenced with Kuthubul Zaman Bukhari, then–Chairperson of SLC delivering his opening remarks.
Amir Bahari began his presentation by discussing the laws relating to Islamic estate planning, which included:
(1) Muslim Wills (Selangor) Enactment 1999;
(2) Probate and Administration Act 1959;
(3) Small Estates (Distribution) Act 1955;
(4) Public Trust Corporation Act 1995;
(5) Rules of Court 2012;
(6) Administration of Islamic Law (Federal Territories) Act 1993; and
(7) Administration of the Religion of Islam (State of Selangor) Enactment 2003.
He also spoke about the following cases relating to Islamic wills:
(1) Mat Hassan bin Daud v Limah bt Saman & Ors [2008] 4 SHLR 112;
(2) Wan Puziah bt Wan Awang v Wan Abdullah bin Muda & Anor [2015] 4 SHLR 15;
(3) Sarwari a/p Ainuddin v Abdul Aziz a/l Ainuddin (No 2) [2015] 1 SHLR 68;
(4) Re Halimah bt Daud (a case in respect of an application for a faraid certificate to determine the beneficiaries and their entitlement) [2014] 2 SHLR 63;
(5) Re Mohd Zaki bin Ngah (a case in respect of an application for a faraid certificate to determine the beneficiaries and their entitlement) [2014] 2 SHLR 104;
(6) Re Ismail bin Majid [2013] 3 SHLR 69;
(7) Sofiah Moo @ Moo Nyok Yin v Syed Gamal bin Syed Kechik al–Bukhary & Ors [2013] 1 SHLR 9; and
(8) Ainun bt Arifin v Maria bt Arifin & Ors [2012] 3 SHLR 22.
Amir Bahari elaborated on the issues relating to Islamic estate planning that could arise, including unexpected death; cases involving minors, polygamy and adoption; and also feuds and disputes among a testator’s heirs.
The second speaker, Haji Mukhtar b Abdullah addressed the importance of Islamic estate planning, such as:
(1) To ensure the loved ones benefit from the distribution;
(2) To minimise the chances of family disputes; and
(3) To ensure the planning is done in accordance with Syariah law.
He referred to Yong Nyee Fan & Sons Sdn Bhd v. Kim Guan & Co Sdn Bhd (1979) 1 MLJ 182, which provides the definition of “amanah” (trust) as “the relationship which arises wherever a person called the trustee is compelled in equity to hold property, real or personal, and whether by legal or equitable title, for the benefit of some reasons (of whom he may be one) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects of the trust”.
The seminar, which carried three Continuing Professional Development (“CPD”) points, was well–attended, with a total of 70 participants consisting of Members of the Bar, pupils in chambers, and members of public.