The four Sunni schools agree on most of fara'id and part company on a handful of points that change the actual fractions. An Ontario will has to state those fractions in writing, which means your school has to be resolved before we draft, not after you die.
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You cannot usefully draft a clause that says "distribute my estate according to Islamic law as determined by my imam." Ontario law is hostile to that in two ways: a disposition can fail for uncertainty if its terms cannot be ascertained, and a testator generally cannot delegate the testamentary power itself to somebody else's future opinion. Defined trusts and powers of appointment over a defined class are permitted; handing the whole distribution to a third party to work out later is an invitation to a challenge that your family will pay to defend. The will has to contain the numbers.
That has one unavoidable consequence. Because the shares depend on who survives you, the will must set out each realistic survivorship scenario and the fractions that follow — spouse and children only; spouse, children and a living mother; children where one has predeceased you leaving children of their own. Every point on which the schools differ therefore has to be answered at the drafting table, by you, in advance. We draft the legal instrument. What your school requires of you is a question for your imam or scholar, and we will draft whatever answer you bring back.
Start from what is agreed. All four schools order the estate the same way: funeral expenses, then debts, then a bequest of up to one third, then the fixed shares. All four limit the wasiyya to one third, and on the majority view a bequest to someone who is already a fixed heir requires the consent of the other heirs. All four accept 'awl, the proportional reduction applied when the fixed shares exceed the whole.
The core fractions are common ground too. A husband takes one half, reduced to one quarter where there is a child or a son's child; a wife one quarter, reduced to one eighth on the same condition, shared among co-wives. The mother takes one sixth where there is a child or a son's child, or two or more siblings; otherwise one third — with one exception all four schools apply. Where the only heirs are a spouse and both parents, the mother takes one third of what is left after the spouse's share, not one third of the estate: a wife takes a quarter and the mother a quarter, a husband takes a half and the mother a sixth, and the father takes the rest. The father takes one sixth where there is a son or a son's son; one sixth plus whatever residue is left where the only surviving descendants are female, such as a daughter or a son's daughter; and the whole residue where no child or son's child survives. A sole daughter takes one half, two or more daughters two thirds between them, and where there is a son the daughters take with him as residuaries in a two-to-one ratio. Uterine siblings are the exception to that ratio — one sixth for one, one third shared between two or more, divided equally regardless of sex.
Radd, the return of a surplus. Small Ontario families hit this constantly. A man survived by a wife and one daughter: the wife's eighth and the daughter's half leave a surplus with no residuary heir to take it. Hanafi and Hanbali doctrine returns that surplus proportionally to the fixed sharers, with the spouse excluded from the return. Classical Maliki and Shafi'i doctrine applies no radd at all — the surplus goes to the public treasury — subject to the widely relied-upon later position that where no properly constituted treasury exists it reverts to the sharers. Same family, materially different results.
Distant kindred, dhawu al-arham. This is the category that includes a daughter's children, a sister's children and maternal uncles and aunts. Hanafi and Hanbali doctrine lets them inherit once the sharers and residuaries are exhausted; classical Maliki and Shafi'i doctrine does not, with the same later qualification about the treasury. If your realistic survivors are your daughter's children, this single question decides whether they take the estate or nothing.
The grandfather with brothers and sisters, al-jadd wa'l-ikhwa. Abu Hanifa's position is that the grandfather excludes full and consanguine siblings entirely. The Maliki, Shafi'i and Hanbali schools — and Abu Yusuf and Muhammad within the Hanafi school itself — have the grandfather share with them under the muqasama rules. For a testator with no children, living siblings and a surviving grandfather, the two approaches produce completely different distributions.
Grandchildren of a child who died before you. The classical position across all four schools is that there is no representation: a son's child is excluded by a living son, and a daughter's child falls into the distant-kindred category. That result is what led several modern jurisdictions to legislate around it, by two different routes. Egypt and Morocco created an obligatory bequest — wasiyya wajiba — for orphaned grandchildren out of the one third. Pakistan went further, giving the children of a predeceased son or daughter, per stirpes, the share their parent would have taken had they lived, which is representation rather than a bequest. No such code applies in Ontario. If you have grandchildren by a predeceased child, your will has to decide, expressly, whether part of the one third goes to them.
Section 6 of the Family Law Act is the largest single risk to a fara'id distribution. A legally married surviving spouse can elect to take an equalization of net family property instead of taking under the will, with a six-month deadline from death and a filing with the Estate Registrar; where the spouse elects, gifts to them in the will are generally revoked unless the will expressly states that the gift is in addition to the entitlement. On a twenty-five year marriage with the family home in the husband's name, a one-eighth share and an equalization payment are not close. The election, not the will, then governs.
Part V of the Succession Law Reform Act is the second. A dependant who was being supported — a spouse, including a common-law spouse for this purpose, a child, a parent, and a sibling in defined circumstances — can apply for support out of the estate regardless of what the will says, and section 72 draws assets that passed outside the estate, including joint accounts, insurance proceeds and plan designations, back into the pot for that claim. The exposure is not the fara'id calculation as such. It is a fara'id share that leaves a disabled adult child or a dependent elderly parent without adequate provision.
On unequal shares by sex, be neither complacent nor alarmed. In Spence v BMO Trust Co, 2016 ONCA 196, the Court of Appeal held that an unconditional gift in a will is not void on public policy grounds because of evidence about the testator's discriminatory motive, and that extrinsic evidence of motive was not admissible to strike it down. That is meaningful protection for a will that simply states fractions.
But Spence involved no dependant support claim, and Canadian courts have struck discriminatory conditions appearing on the face of an instrument, and have set aside a trustee's exercise of discretion driven by a beneficiary marrying outside the faith. The drafting lesson is precise: state the shares as unconditional gifts, and avoid conditions such as "provided he remains a practising Muslim" or "provided she marries a Muslim," which raise a genuinely unsettled question.
Joint tenancy and beneficiary designations bypass the will completely. A home held jointly with your spouse passes by survivorship on your death and is not part of the estate the will divides. An RRSP, RRIF or TFSA with a named beneficiary pays that person directly under the designation rules in Part III of the Succession Law Reform Act. Life insurance is not in that Part — section 54 (2) excludes any contract or designation to which the Insurance Act applies — so a life policy pays under sections 190 and 196 of the Insurance Act instead. The practical point is the same either way: none of it passes under your will. Whether those assets form part of the tarika is a question for your scholar; what is certain is that legally they do not pass under your will unless you change how they are held or who is named.
Joint accounts with an adult child are their own trap. Under Pecore v Pecore, 2007 SCC 17, a gratuitous transfer into joint names with an adult child is presumed to be held on resulting trust for the parent's estate unless the parent intended an outright gift, and the outcome turns on evidence of intention. An account opened for convenience so a son could pay the bills may fall back into the estate and into the distribution, or may not. Write down at the time what you intended.
A disabled adult child needs its own conversation. Leaving a fixed share outright can disqualify them from Ontario Disability Support Program benefits, and the standard Ontario answer — a fully discretionary Henson trust — works precisely because the beneficiary has no fixed entitlement, which is in tension with a fixed fara'id share. There are structures that get close to both objectives. Raise it with your scholar before we draft rather than after.
Foreign land is the last one. Succession to immovable property is generally governed by the law of the place where the land is, so an Ontario will may not effectively deal with a plot in Pakistan, a flat in Cairo or farmland in India, and that jurisdiction may apply its own succession rules regardless of what you wrote here. Where there is foreign land we usually prepare a separate will confined to Ontario assets, with the revocation clauses drawn so the two wills do not cancel each other out.
The core is the same. The order of payment, the one-third ceiling on bequests, 'awl, and the principal fractions for a spouse, parents, sons and daughters are common ground across the four schools. The differences cluster in configurations that ordinary Ontario families reach more often than you would expect: what happens to a surplus when there is no residuary heir, whether a daughter's or sister's children inherit at all, how a grandfather ranks against brothers and sisters, and whether grandchildren by a predeceased child take anything. Those change the arithmetic, so we need your answer before drafting.
We would not draft it that way. A disposition can fail for uncertainty if its terms cannot be ascertained from the document, and Ontario law generally does not permit a testator to delegate the testamentary power itself to another person's future determination. A clause of that kind is an open door for anyone who wants to challenge the will, and the estate pays to defend it. The safer approach is to work out the fractions now, for each realistic survivorship scenario, with your scholar's input, and put the resulting numbers into the will as unconditional gifts.
An unconditional gift of stated fractions stands on reasonably solid ground. In Spence v BMO Trust Co, 2016 ONCA 196, the Court of Appeal declined to void an unconditional testamentary gift on public policy grounds based on evidence of the testator's motive, and held such evidence inadmissible for that purpose. Two caveats. Spence involved no dependant support claim, and Part V of the Succession Law Reform Act operates independently of any of this. And conditions written into the will — requiring religious observance, or marriage within the faith — are a different and less settled question.
Considerably. Most of the protections and risks described here attach to a legally married spouse. Without a valid Ontario marriage there is no election under section 6 of the Family Law Act and no spousal share on an intestacy, though Part V dependant support can still be available to a common-law spouse. Ontario's Marriage Act contains a provision that can validate some marriages solemnized without a licence or by an unauthorised person in defined circumstances, and the case law is fact-specific. Tell us exactly how and where you were married.
Usually yes. Succession to land is generally governed by the law of the place where the land sits, so an Ontario will may have no practical effect on immovable property abroad, and the local courts may apply their own rules irrespective of your Ontario document. The normal approach is one will limited to Ontario and Canadian assets and a second prepared locally for the foreign property, with the revocation clauses in each drafted so that the later will does not wipe out the earlier one. Our flat fee for the Ontario will is $563.87, taxes included.
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