Society defends sharia wills practice note

Topics: Law Society activity,Wills & Probate

  • Print
  • Share
  • Comments (21)
  • Save

Related images

  • Chancery Lane road sign

Law Society president Nicholas Fluck has attacked as ‘inaccurate and ill-informed’ press reports that the Society is promoting sharia law.

He was speaking after campaigners for secularism called for the withdrawal of a practice note advising solicitors to draw up wills in compliance with Islamic law.

Advertisement

Fluck said: ‘We live in a diverse multi-faith, multi-cultural society. The Law Society responded to requests from its members for guidance on how to help clients asking for wills that distribute their assets in accordance with sharia practice.

‘Our practice note focuses on how to do that, where it is allowed under English law.’

He said that the Law of England and Wales will give effect to wishes clearly expressed in a valid will in so far as those wishes are compliant with the law of England. ‘The issue is no more complicated than that.’

Charlie Klendjian, secretary of the Lawyers’ Secular Society, called for the note to be withdrawn.

‘By issuing this practice note the Law Society is legitimising and normalising – or at the very least being seen to legitimise and normalise – the distribution of assets in accordance with the discriminatory provisions of sharia law. This is a worrying precedent to set.’

However John Bunker, head of private client knowledge management at commercial and private client firm Thomas Eggar, said: 'As I see it, the Law Society is not advocating sharia law, or encouraging solicitors to act in a discriminatory way, but helping the profession understand how they can make wills that comply with this alternative religious law, if asked by a client to do so. It’s dangerous territory, especially with the different forms of sharia law, but the Law Society is trying to help make sense of the provisions.'

He said that under the principle of testamentary freedom if clients want to leave their estate in accordance with sharia they are free to do so, subject to the potential for any beneficiary to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. 

Labour MP Barry Sheerman called for a joint investigation by the Commons Justice and Home Affairs Committees into how widespread the use of sharia law is in Britain.

Readers' comments (21)

  • I think this is a very dangerous area. Most solicitors qualified in England (me included) would have little (if any) understanding Sharia Law. Personally, even with the benefit of the Law Society's note, I would decline instructions on the basis of lack of competence.

    Unsuitable or offensive? Report this comment

  • Why is the Law Society giving out what amounts to religious advice?

    Practice advice should be for issues of law, not religion.

    The Law Society should be also be campaigning AGAINST policies that seek to discriminate against women, as Sharia Law relating to succession clearly does, rather than offering indirect endorsement to it...!

    Unsuitable or offensive? Report this comment

  • The papers did indeed grossly misrepresent the situation on the weekend, but the Law Society is in danger of getting a bit ultra vires here.

    When making a Will in England & Wales a solicitor needs to be concerned with nothing more than the formalities of English & Welsh Law to ensure the Will is both valid and will be admitted to probate when the testator/testatrix dies.

    Is the Will Sharia compliant? That's not for me to say or contemplate, that's for the client to consult with the person giving them religious guidance.

    Clients who want Sharia compliant distribution of their estate should first consult with the person giving them religious guidance and then instruct accordingly. The last thing any solicitor should be doing is giving their client advice as to whether the will they've drafted is compatible with their religious laws, and that's a dangerous road to go down.

    Unsuitable or offensive? Report this comment

  • Anonymous of 04:18 is spot on as regards the ill-judged hysteria in the press and elsewhere over this matter at the weekend and today (including the comments of Mr Klendjian quoted above), and the dangers of the Law Society giving advice on matters not within its expertise or remit. The Law Society is not in any way legitimising and normalising any Sharia practice. Also, it should not be campaigning for or against policies that seek to discriminate against women (or anyone else) except where they concern the profession or the administration of justice. It is a matter for each solicitor to decide whether or not to take instructions from a client who wishes to dispose of his or her assets in a manner which seems unreasonable on whatever grounds.

    Unsuitable or offensive? Report this comment

  • If it does nothing else, the Practice Note provides a helpful reminder that the testamentary freedom of some foreign clients may be limited by the laws of their home countries in ways that English law regards as binding; and for the sake of our indemnity premiums we should not ignore this when drafting their wills.

    I wonder, too, if the sharia principles of succession are really so outrageous that we should reject our clients' instructions to give effect to them by their wills simply because they are based in religion. Much of English law can be traced to principles of Christian morality, and is none the worse for that.

    Unsuitable or offensive? Report this comment

  • Surely a lawyer's first duty is to uphold the law rather than pander to the religious belief held by the person making a will. The legal validity of the testamentary requirements is all that matters. The Society's note could herald the start of the slippery slope - what next, notes to assist in managing polygamous marriages?

    Unsuitable or offensive? Report this comment

  • Until 1925 the English law of inheritance of land discriminated against daughters and younger sons; until 1970, well within the memory of some now in practice, it discriminated against children born out of wedlock.

    And a if a testator, Muslim or not, wishes to make a will which prefers sons to daughters, or vice versa, or children born in wedlock to those born outside, or vice versa; or to exclude anyone in civil partnership or same-sex marriage; or to prefer one child over another for any reason whatever, that is that testator's right and it is the function of the solicitor whom he approaches to make sure his will gives effect to those wishes as far as possible and to give warning where it may not, because of the Family Provision Act. It's not the solicitor's duty to consider whether the testator should or should not act in that way.

    So you see, Ashley Balls, the solicitor who draws up the will is upholding the law: the law of testamentary freedom. The comparison with polygamy - which is unlawful - is preposterous.


    I have drawn up wills giving ridiculous amounts to animal charities, by a couple whose only relations were a nephew and a niece whom the Act would not help. I thought my clients were two sentimental fools but I drew up the wills and kept my opinions to myself.

    So you see, Ashley Balls, the solicitor who draws up a will leaving which accords with sharia is upholding the law: the law of testamentary freedom. The comparison with polygamy is preposterous.

    Unsuitable or offensive? Report this comment

  • This is an issue being blown out of proportion, in my opinion.

    Unsuitable or offensive? Report this comment

  • If a client comes to you and says "I want an English will which is compliant with Scots/Portuguese/Icelandic law", you presumably say "I can draft you an English will, but I'm not qualified or competent to advise you on whether it complies with Scots/Portuguese/Icelandic law: you need to check that angle with a Scottish/Portuguese/Icelandic lawyer".

    Why is the answer not the same if a client wants an English will which complies with Sharia succession laws? Am I missing something? Does reading the Practice Note make all English solicitors competent to advise Sharia succession laws?

    Unsuitable or offensive? Report this comment

  • Bias in media coverage usually illustrates an underlying agenda ~ Muslims and Islam are regularly regarded as fair game and can all be tarred with the same brush, however inaccurately and vindictively, with impunity ~ which means that even reasonable accommodation of minority faiths is likely to be attacked, almost as a matter of principle.

    What surprised me was that whoever drafted the Practice Note at times made it unnecessarily complicated and did not appear to have consulted with the leading English practitioners in this field, including, for example, I Will Solicitors Ltd., which as well as catering for simple Islamic wills has also developed tax efficient Islamic will precedents for high net worth individuals.

    For example §3.6 states, "The main difficulty with preparing a Sharia compliant will is the inability to state in advance who the Sharia heirs will be." In fact this is not a difficulty, since there is no permutation of eligible heirs alive at the time of a testator's death whose shares cannot be calculated precisely ~ which means that a properly drafted Islamic will cannot fail for uncertainty.

    I find that the online IRTH software ~ tried and tested for many years, but to which the Practice Note does not refer ~ is very helpful when ascertaining a client's wishes, since it is possible to ascertain in about 5 minutes who would inherit what if the testator were to die "today" ~ and accordingly to ascertain which more distant relatives (for example nephews, nieces and grandchildren) would in all probability not be entitled to receive a fixed share as prescribed in the Qur'an (because the closer relatives would take precedence) ~ and who therefore should receive specific bequests out of the third of the estate which can be left to anyone or any charity or any organisation not entitled to a fixed share as of right.

    For the record, although it is correct that non-Musilim relatives are not entitled to Qur'anic fixed shares, specific bequests can be made in an Islamic will to non-Muslims ~ just as gifts can be made to non-Muslims during a testator's lifetime.

    I was also surprised that as regards Shi'a Muslim testators, no reference was made to His Honour Judge Abbas Mithani QC's helpful book, "Islamic Wills" which caters for the Shia community and which contains helpful precedents ~ nor was any reference made to "The Islamic Will" authored by Hajj Abdalhaqq & Aisha Bewley and Ahmad Thomson, which caters for the Sunni community and which provides a simple precedent where Inheritance Tax considerations are unnecessary.

    It would have been helpful to point out, so as not to create a biased impression, that although the male beneficiary is entitled to twice the share of a female beneficiary, male beneficiaries are responsible for the maintenance and wellbeing of the female relatives in the family ~ whereas the female beneficiaries can do whatever they want with their inheritance. In other words, a greater moral responsibility accompanies the greater share.

    The same principle applies in Jewish law where (please correct me if I am wrong) the oldest son inherits everything if there is more than one son and where a daughter inherits nothing from her father if she has a brother. However, whoever does inherit is responsible for the maintenance and wellbeing of those relatives in the family who did not inherit. Again, a greater moral responsibility accompanies the greater share.

    Since members of the Jewish community have been making Jewish wills in the UK for about the last nine centuries, their probate lawyers are unlikely to be in need of a Practice Note from the Law Society, but the precedent which has been set clearly confirms that members of minority faith communities, including Jews, Christians and Muslims, should be permitted in law to make provision for those who will inherit from them as they wish, provided that, as the Practice Note points out, "the will is signed in accordance with the requirements set out in the Wills Act 1837."

    After all, the intestacy rules are in part derived from the Jewish, Christian and Muslim models ~ the only major differences being that eligibility and shares are calculated differently.

    In my experience, practising Muslims are unlikely to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in respect of a Sharia compliant will, since it will be in harmony with the guidance in which they believe and follow.

    As in the case of most laws, it is only when people don't follow them that problems arise.

    In conclusion, although there is room for improvement, in my humble opinion the Practice Note is a healthy inclusive sign of the times and I am sure that it will assist competent lawyers (especially those who may not be entirely familiar with the requirements of the Sharia) to honour the wishes of those clients who wish to have a Sharia based division of their estate after they have left this fleeting world.

    Unsuitable or offensive? Report this comment

View results 10per page20per page50per page

Have your say

You must sign in to make a comment

  • Print
  • Share
  • Comments (21)
  • Save

Advertisement

Sign up for email news alerts

Daily Update. Keep abreast of the latest developments that affect the profession

PRACTICES FOR SALE, MERGERS, ACQUISITION & ASSOCIATION

LAW MERGERS BUSINESS FACILITATORS TO THE LEGAL PROFESSION Services Include: Mergers, Sales, Valuations, Practice Development, Feasibility Studies, Consultancy. CONTACT IN CONFIDENCE: Neville or Mack Dinshaw LAW MERGERS & ACQUISITIONS DX 42809 Kingsbury Tel: 020 8204 3600 Fax: 020 8204 4654 Email: neville@lawmergers.co.uk Web: www.lawmergers.co.uk WORLDWIDE CLIENT BASE QUALITY MANAGEMENT ISO9001 Registered Firm

SELLING? MERGING? VALUING? Acquiring? Free information from 01494 483728. raymondafox@aim.com www.BottomLineConsultancy.com or www.SolicitorSupermarket.biz

DUE TO THE retirement of one of two Partners in a Bolton based firm we are now seeking interested parties to join / merge. T/O in excess of £300k. Email rachel@boltonsolicitors.com

SMALL EAST MIDLANDS Practice seeks sale or merger. Good mix of Property, Private Client work with some litigation. Leased premises till beginning of November 2016, minimal dilapidations and willing to move. Turnover £440,000.00 per annum. Contact 07825 632078.

Browse the magazine

Current Issue

The Gazette offers you up-to-the-minute national and international news, opinion, features, in-depth articles plus a jobs and appointments section.

Please click the link below for a digital edition