The Fatwa Committee discussed the question received from the Disability Unit, Ministry of Social and Family Development at the 12th fatwa meeting on 23rd June 2015.
بسم الله الرحمن الرحيم
الحمد لله رب العالمين ، والصلاة والسلام على سيد المرسلين وإمام المتقين نبينا محمد وعلى آله وأصحابه أجمعين. اللهم أرنا الحق حقا وارزقنا اتباعه، وأرنا الباطل باطلا وارزقنا اجتنابه . وبعد ،
1. The Muis Fatwa Committee received a question from the Disability Office, Ministry of Social and Family Development (MSF) regarding the trust managed by SNTC. The question asked was: What is the status of this endowment fund from the Syariah perspective?
2. The Ministry of Social and Family Development (MSF) and the National Council of Social Service (NCSS) formed Special Needs Trust Company (SNTC) in 2008/2009. It is registered as a non-profit private company. SNTC manages the endowment fund set up by parents or caregivers of Persons with Disabilities (PwD). This endowment fund includes a care plan as well as a savings component, and is only exercised when both the parents or caregivers pass away, or are of unsound mental capacity. When this happens, SNTC plays the role of managing the care of the special needs child and administers his/her expenses based on the plan drawn up in the trust deed.
3. SNTC Trust was established to fulfil the needs of Singaporeans with special needs. According to an official estimate in 2010, there were 97,200 persons with special needs in Singapore, or about 3% of the entire population in Singapore.
4. Persons with special needs require specific support. Statistics have shown that 63% of them do not have the ability to work outside of the special centres that are set up to employ persons with disabilities, and hence are not capable of being financially-independent. Findings have also show that the life expectancy for people with disabilities is generally similar to other people, and hence they would incur higher expenses to cater to their intensive caregiving and financial needs. The government has provided various assistance schemes for those with disabilities. However, many parents wish to further ensure that their children will continue to be cared for and would have sufficient savings, even after their passing.
5. As the SNTC endowment fund only comes into effect when both parents pass on, this has led to questions as to whether the fund is part of the estate of the parents, and whether there are financial instruments similar to the fund in traditional fiqh. Hence, there is a need to study and compare the contract of the SNTC endowment fund and other instruments of wealth transfer in Islamic law.
6. The conclusions of the comparison are as follow:
The SNTC Trust does not fulfil the conditions of will because the transfer of wealth through SNTC is not limited to 1/3 of the entire estate, and the beneficiary can be an inheritor of the estate. This is different from the rules of leaving a will in Islam, whereby the beneficiary cannot be among those who will inherit the estate.
The SNTC Trust is not the same as a special wakaf as it is not perpetual.
The SNTC Trust is also different from that of a nuzriah as a nuzriah is an instrument which requires sighah or special pronouncement, which is not found in the SNTC trust.
While there are elements of hibah which can be found in the trust, the trust is not the same as hibah as it does not fulfil the conditions of hibah. This is because the transfer of property ownership does not happen completely during the lifetime of the giver. The trust also has elements of hibah ruqba because the giver has the option to take back the property in the event that the beneficiary predeceases the giver. However, the trust is not the same as hibah ruqba because there is an existence of a third party that functions as a trustee – the SNTC – before the qabadh takes place fully. It is on these grounds, that the Fatwa Committee considers it as a Specific Hibah Trust, and it is a new instrument of gifting.
7. Based on the above considerations, the Fatwa Committee has decided that the pledging the wealth to the SNTC Trust by the parents or caregivers of a person with disability is permissible. This trust is an instrument of wealth transfer that is different from the instruments contained in the classical fiqh, but is in line with the objectives of shariah (maqasid shariah). It is hence a special trust hibah (Hibah Amanah Khas) and does not have to comply with the rules of faraidh.
8. As stated in the fatwa ruling on the issue of CPF nomination and insurance nomination, the approach to create a new contract (akad) can be taken as long as it fulfils two main conditions:
I. It does not contravene any clear Islamic rulings. This is based on a method raised by Ibn Qayyim al-Jauziyyah with regard to making ijtihad in matters regarding muʿamalah (transactions). He wrote:
الأَصْلَ فِي الْعُقُودِ وَالشُّرُوطِ الصِّحَّةُ إلا مَا أَبْطَلَهُ الشَّارِعُ أَوْ نَهَى عَنْهُ
Which means: The original hukum (ruling) for a contract is valid, except what is voided or prohibited by Shariah.
II. It is in line with the goals of Islamic law and fulfils the maqasid. In this case, it fulfils the needs of the disabled and ensures that the person’s welfare is taken care of. It meets the maqasid of preservation of religion because it ensures that the person with disability, which includes his religious needs, will be well taken care of by a trusted party. It also ensures the preservation of life because his daily needs including his physical development and specialised training, are being met. For those who are unable to live independently, they can get long term care from institutions that care for persons with disabilities. Furthermore, the preservation of intellect is met through special education classes for those with such needs. This is often done through educational programmes that begin at a young age, special schools and additional support at mainstream schools. With the endowment fund, the wealth needed for the person with disability will be protected and it will be managed in a way to ensure that their needs are fulfilled. Prophet Muhammad s.a.w. emphasised the importance of caring and protecting the weak in the society, in a hadith reported by Imam an-Nasai:
“إنما نصر الله هذه الأمة بضعفتهم بدعواتهم وصلا تهم وإخلاصهم”
Which means: Verily Allah’s benevolence to this ummah is through the weak among them; through their supplications and prayers and their sincerity.
9. In accordance with the principle of hibah qabla al-qabdh, if the beneficiary passes away before the giver (mother, father or caregiver), then the wealth can be returned to the giver. If the beneficiary of the trust passes away before the fund is exhausted, then the remaining amount is to be included as part of his estate, and must be disbursed according to appropriate Islamic guidelines upon his death.
10. The Fatwa Committee would like to state firmly that the transfer of wealth in the form of an SNTC trust or endowment fund is only to ensure that the maslahah (interest) and the needs of the person with disability are safeguarded.
DR MOHAMED FATRIS BIN BAKARAM
CHAIRMAN, FATWA (LEGAL) COMMITTEE
MUFTI OF THE REPUBLIC OF SINGAPORE
ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE