Creating a Legally Valid Islamic Will in NSW: Incorporating Sadaqah Jariyah

Introduction

For Australian Muslims, preparing an Islamic Will in NSW requires careful wills and estate planning to ensure it is legally valid under Australian law while honouring religious principles. A key part of an Islamic estate plan is providing for Sadaqah Jariyah, or ongoing charity, but a common error in drafting can risk these intentions being unfulfilled.

This article explains how to structure an Islamic Will to make charitable intentions legally sound, focusing on the critical difference between a binding bequest in the Wasiyyah and a simple request in the personal wishes section.

Disclaimer: This article provides general information only and is not legal or religious advice. Where the law is unsettled, conservative language is used to reflect this uncertainty. You should seek tailored advice from a qualified NSW lawyer at LawBridge, as well as your imam or religious adviser.

Interactive Tool: Check If Your Sadaqah Jariyah Is Legally Valid & Binding

Understanding Sadaqah Jariyah for Muslim Individuals & Families

Defining Ongoing Charity for Islamic Estate Plan

Sadaqah Jariyah is a form of ongoing charity that continues to benefit others long after the person who made the donation has passed away. Furthermore, it is a significant part of an Islamic estate plan for many Australian Muslims, creating a lasting legacy.

The importance of this concept is highlighted in a Hadith from Sahih Muslim. The Prophet Muhammad (ﷺ) stated, “When a person dies, his deeds come to an end except for three: ongoing charity, beneficial knowledge, or a righteous child who prays for him.” Ultimately, this principle underscores the value of establishing a charitable gift that provides continuous rewards.

Distinguishing Between Regular Sadaqah & Sadaqah Jariyah

It is useful to understand the difference between the two types of charity in Islam:

• Regular Sadaqah: typically addresses an immediate need, such as providing food, clothing, or medical assistance in a crisis.
• Sadaqah Jariyah: focuses on creating sustainable and long-term benefits for a community.

As long as the project or gift continues to serve people in need, the rewards for the donor continue. As a result, this is why it is often called “ever-flowing charity.”

Examples of Ongoing Charity for Muslims

There are many ways to perform Sadaqah Jariyah, with the core principle being that the act provides an ongoing benefit. Some common examples for those preparing their Islamic wills in Australia include:

• Funding educational resources: This could involve writing or publishing a beneficial book or providing materials for a school.
• Building community infrastructure: This includes funding the construction of a building for learning or worship, a hospital, or an orphanage.
• Supporting environmental projects: Planting a tree that provides food or shelter for generations is a powerful form of ongoing charity.
• Establishing a sustainable water source: Building a well provides clean water, which supports health, sanitation, and agriculture for an entire community.
• Creating agricultural opportunities: Developing farmland allows communities to grow their own food and become self-sufficient.
• Providing shelter: Creating a home or shelter offers security and a safe place for individuals or families in need.
• Establishing an endowment fund: A waqf is an endowment fund that supports charitable causes indefinitely, ensuring a long-term impact.

Legal Requirements for Distributing an Islamic Estate in NSW

The Order of Estate Distribution

When creating an Islamic estate plan, it is important to understand the specific order of asset distribution after a person passes away. This sequence ensures that all financial and religious duties are fulfilled before heirs receive their inheritance. Ultimately, the distribution of an Islamic estate follows a clear, hierarchical process as follows:

• Debts and obligations: The first priority is to settle all outstanding liabilities, including any debts, taxes, funeral costs, and administrative expenses related to Islamic probate and managing the estate, which must be paid in full before any other allocations can be made.
• Wasiyyah (discretionary bequests): After all debts and obligations are paid, the instructions in the Wasiyyah are carried out, allowing for up to one-third of the remaining estate to be distributed to individuals or causes chosen by the deceased.
• Fara’id (fixed shares for heirs): The final portion of the estate is distributed among the entitled heirs according to the fixed shares outlined in Islamic inheritance law.

The Wasiyyah & Faraid Allocations

The Wasiyyah provides an opportunity for Muslims to make discretionary bequests from their estate. A person may allocate up to one-third of their assets to causes such as Sadaqah Jariyah or to individuals who are not otherwise entitled to a fixed share of the inheritance. Furthermore, this portion is distributed after all debts are settled but before the final distribution to heirs.

The remaining two-thirds of the estate must be distributed according to the principles of Fara’id. These are the fixed inheritance shares prescribed by Islamic law for specific family members, ensuring that rightful heirs receive their designated portions. As a result, this structure provides a balance between fulfilling personal charitable wishes and meeting the obligatory duties to one’s family.

Securing a Legally Valid Sadaqah Jariyah

The Risks of Using Only the Personal Wishes Section

A common error when preparing an Islamic Will in NSW is to place instructions for Sadaqah Jariyah (ongoing charity) in the “Personal Wishes” section. However, this section is intended only as guidance for your family and Executor.

Placing your charitable intentions here creates a significant risk that your wishes may not be fulfilled, as it leads to the following issues:

• Non-binding instructions: Your charitable intentions will not be legally enforceable.
• Reliance on heirs: The fulfilment of your wishes would depend entirely on your family voluntarily contributing from their own shares of the estate.

Making Your Charitable Intentions Legally Binding

To ensure your directions for Sadaqah Jariyah are legally enforceable in your Australian estate plan, they must be included in the “Wasiyyah” section of your Islamic Will. Under both Islamic principles and Australian law, this makes the instruction a formal and binding discretionary bequest.

When included in the Wasiyyah, your charitable gift becomes a legal obligation for your Executor to carry out. This allocation is made from the one-third portion of your estate that can be distributed at your discretion, before the remaining two-thirds are divided among heirs according to Fara’id (fixed shares).

Providing Clear Instructions for Executors & Trustees

Specifying your Sadaqah Jariyah in the Wasiyyah provides your Executor with clear and unambiguous directions. This formal instruction clarifies several important details, including:

• The specific gift: Exactly what you want to allocate for charity;
• The chosen beneficiary: Which organisation or individual should receive the funds; and
• The intended purpose: How the charity should be used.

This level of detail guarantees that your intentions are followed precisely as you planned. Furthermore, it removes any uncertainty for your Executor and ensures your legacy of ongoing charity is secured as a legally sound component of your Islamic estate plan.

How to Draft Your Islamic Estate Plan for Ongoing Charity

Implementing a Dual Approach for Maximum Clarity

To ensure your charitable intentions are both legally enforceable and spiritually aligned in your Islamic estate plan, a dual approach is recommended. This method involves using both the Wasiyyah and the “Personal Wishes” sections of your Islamic Will. Ultimately, this combination guarantees that your directions for ongoing charity are legally binding while also providing your Executor with guidance on the specific causes you wish to support.

Structuring the Wasiyyah Section Effectively

For your Sadaqah Jariyah to be a legally sound instruction, it must be drafted correctly within the Wasiyyah section of your Will. This makes it a formal discretionary bequest that your Executor is obligated to carry out.

When drafting this section for your Islamic Will in NSW, you should include the following:

• Specify the allocation: Clearly state the exact amount or percentage of your estate that is to be used for the charitable gift.
• Name the responsible party: Identify the Executor or the specific organisation that you entrust with implementing your charitable wishes.
• State the purpose: Explicitly mention that the allocation is for the purpose of Sadaqah Jariyah.

Utilising the Personal Wishes Section for Supplementary Guidance

The “Personal Wishes” section of your Will serves a different but complementary purpose. While not legally binding, it is the ideal place to provide your Executor with supplementary guidance on how you would like your Sadaqah Jariyah to be used.

Furthermore, you can use this section to inspire your Executor by suggesting specific projects or structures that are meaningful to you. For example, you might express a preference for:

• Establishing a waqf (an endowment fund).
• Planting trees that will provide ongoing benefits.
• Funding a community education initiative.

Case Study on Charitable Trusts & Cy-pres Modification for Appointed Trustees

The Martin Sharp Trust Case in the NSW Supreme Court

The NSW Supreme Court case of Street of Dreams Martin Sharp Ltd v Attorney-General for NSW [2025] NSWSC 546 provides a useful illustration of the legal complexities involved in how charitable trusts operate. The case involved a philanthropic trust established under the Will of the late artist Martin Sharp, who passed away in 2013. Ultimately, the trust’s purpose was to preserve his home and artistic legacy as a space for collaborative work.

The validity of this charitable trust was previously confirmed in Sharp v Attorney General of NSW [2015] NSWSC 1580. This earlier decision established several important foundations, as follows:

• it affirmed the appointment of a corporate trustee under Section 6 of the Trustee Act 1925 (NSW) (‘Trustee Act’) to administer the trust;
• it demonstrated how a legally valid trust can be created through a Will in NSW; and
• it highlighted the ability to fulfil a specific charitable intention.

Furthermore, these principles are highly relevant to establishing long-term Sadaqah Jariyah projects in an Islamic estate plan.

Modifying Impracticable Charitable Purposes

The Martin Sharp case also shows how the law addresses situations where a trust’s original purpose becomes difficult to fulfil over time. Specifically, the trustee company applied to the court for a cy-pres order to change the terms of the trust. They argued that carrying out the original charitable purposes had become impracticable or seriously inconvenient.

A cy-pres order allows a court to modify a trust’s terms so that the property can be applied to a purpose that is as near as possible to the original intention. This legal mechanism is important for long-term charitable gifts, including Sadaqah Jariyah projects established in an Islamic will.

If circumstances change and make the original project unworkable, the appointed trustee can seek court approval to adapt the purpose. Ultimately, this ensures the charitable legacy continues.

Conclusion

For Australian Muslims, creating a legally sound Islamic Will in NSW requires placing instructions for ongoing charity, or Sadaqah Jariyah, into the correct section to ensure they are fulfilled. By including these charitable intentions as a formal bequest in the Wasiyyah, your gift becomes a legally binding obligation rather than a simple personal wish that may be overlooked.

To ensure your Islamic estate plan is correctly drafted to align with both your faith and Australian law, it is important to seek professional guidance. Contact LawBridge’s experienced Islamic wills and estate lawyers for tailored advice on structuring your Islamic Will in NSW to secure your charitable legacy and provide for your family with confidence.

Frequently Asked Questions