Q: When writing a Will, does the appointed guardian of my children have to be Muslim? I am a revert with no biological Muslim family in the UK. If my husband and myself died, would it be fine to appoint my non-muslim family as guardians? Can I appoint Muslim family of my husband abroad as the guardian, will the UK recognise this as legitimate?
الجواب حامدا ومصليا ومنه الصدق والصواب
A: There are two possible roles in Islamic jurisprudence that the English word ‘guardian’ may refer to in your question. The first is that of a walī (guardian proper) and the second is that of a waṣī (executor).
The guardianship of a walī is defined as the legal right due to which a person’s authority over another person is enforced without the latter’s consent. This type of guardianship arises from either agnatic and uterine relationship or the authority of the Muslim ruler or his deputy. The conditions of being a guardian are that one must me Muslim, adult and of sound mind – whether male or female. A non-Muslim, a minor or one who lacks mental capacity cannot be a walī.
A waṣī (executor) is a person nominated by the legator for taking care of his minor or insane children, distribution of the estate, execution of bequests and protection of assets, after the death of the legator. As such a waṣī is appointed as opposed to being founded on relationship or authority of the ruler. A valid nomination does not require that the executor be a Muslim according to the preponderance of jurists. Although if a non-Muslim is appointed a Muslim judge must replace him/her with a Muslim so that the interests of the beneficiaries can be properly served.
In your particular case, if you are truly unable to identify a suitable Muslim executor and you appoint one or more of your non-Muslim relatives as executors in your will the appointment will be valid. However, you should also stipulate that the executors are bound by Shariah law as interpreted by a competent Shariah authority identified by you.
For advice on whether English law will give legitimacy to the appointment of a Muslim member of your husband’s family who is abroad please refer to a competent practitioner of law.