At a time when society is so multiculturally diverse with a variety of consumer choices and opinions; it is important to understand that a practitioner may be approached by a client who wishes to tailor his or her will to reflect his or her beliefs and ensure it conforms with, for example, Shariah Law. Provided the will is signed in accordance with the Wills Act, there is nothing in English Law to stop the individual from disposing his or her assets, on death, in accordance with Shariah Law.
For practitioners tasked with drafting a will compliant with Shariah Law, three keys steps need to be identified, which are different from the usual probate practice. Firstly, the cost of the burial and any debts must be paid. Secondly, up to a third of the estate (optional) may be bequeathed to a charity or an individual who otherwise in step three would not be entitled to inherit – for example, a friend or ex-wife. Lastly, the remainder is bequeathed to heirs who survive the deceased. Some of these heirs receive a fixed share and the residuary beneficiaries receive the balance (see case study below).
The practitioner also needs to appreciate that there are differing schools of thought on Shariah Law , between different country origins and denomination. The client may provide specifics accordingly.
Case Study
Abdullah passes away leaving a mother, a wife and a son. The wife would receive one eighth share (fixed), the mother one sixth share (fixed) and the residual amount would pass to the son. In this worked example, the lowest common denominator is twenty fourths and so the son would receive seventeen twenty fourths; the mother would receive four twenty fourths; and the wife three twenty fourths.
Controversially, the Law Society published guidance in the spring of 2014, which was later withdrawn due to the high level of complaints about Shariah Law compliant wills being discriminatory. For example, the deceased’s son would receive twice that of the deceased’s daughter share. This was perceived as being sexist and encouraging inequality. As with everything in Shariah Law, there is a reason for such, so-called discrimination. Shariah Law and Islam in general provides guidance to all aspects of life. One may not appreciate that in the example above, the daughter will be catered for, at the time of her marriage. Therefore, it would be unfair for her to be catered for twice; in the will and at the time of her marriage. Further, controversially perhaps, it is perceived that the daughter’s husband will look after her financially and so she doesn’t need to be catered for by her parents also.
Broadening the discussion, Shariah Law is increasingly being utilised in other disciplines of law, such as divorce and ancillary relief. Mediation takes place in the mosque or any other impartial venue where matters are settled by religious counsel. Parties’ official representatives (the practitioners) are then approached to reinforce the decision made ‘out of the office’ and eventually enforced in the English Law courts, through proper procedure.
Back to the topic at hand, under Shariah Law, the will, will make the same provisions as an English Law will; appoint executors, appoint guardians, make provisions for minors, decide who the charitable bequests are for, specify funeral and burial wishes, and make tax saving provisions.
Please note that bespoke tax planning advice may need to be provided and there are ways to achieve an Islamic will with either tax saving provisions within the will or advice given to make changes to finances and property during the lifetime of the will maker – suitable for clients who are of a high net worth.
On the face of it, Islamic wills appear to be a somewhat complex issue and one may question the validity of such wills and what place they have in English Law. However, we must face the fact that more than 2 million Muslims in the UK and are increasingly becoming tuned in to the fact that they have a choice in having an Islamic will drawn up which conforms with English Law.
