Law Society of England and Wales Accepts Sharia-Compliant Wills
The Law Society of England and Wales recently published a practice direction with respect to the drafting of Sharia-compliant wills. There are 2.7 million Muslims living in the United Kingdom, many who wish to obtain a Sharia-compliant will for religious purposes.
If an individual living in England chooses to distribute his or her assets according to Sharia succession rules, there is nothing, according to the practice direction, that precludes the ability to execute a will that is compliant with Sharia law, yet also valid pursuant to British law. However, this is subject to any claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, under which an application for dependant support may be commenced.
The practice direction identifies the Sharia rules that must be followed when a solicitor assists clients with Sharia-compliant wills. Only one third of an estate is freely-disposable and distributable to whomever the testator chooses to benefit, with the exception of beneficiaries who will already be provided for by the other two thirds of the estate. Sharia succession rules restrict testamentary freedom to the extent that a testator is not free to favour one child over another, which is a common cause of estate litigation. The balance of an estate is paid out to the Sharia heirs, which includes most blood relatives. Adopted children, those born outside of a marriage, and non-Muslims are denied status as beneficiaries pursuant to Sharia succession rules. The sons and brothers of the testator, however, receive preferential treatment, with rights to residuary shares. The shares of the estate to which each beneficiary is entitled cannot be determined until the testator’s death, giving rise to significant uncertainty.
Certain individuals, including potential dependants of the testator, are disinherited altogether. While these wills, which prejudice women and non-biological family members, may now be recognized in the United Kingdom, it is unclear whether Sharia-compliant will provisions would be valid in Canada. In Canada, will provisions that are uncertain or contrary to public policy can be deemed void. At the very least, wills drafted in accordance with Sharia succession rules would be open to challenge and subject to dependant support applications.
The practice note recognizes that the Law Society’s recommendations are not law. Further, the validity of Sharia-compliant wills in the United Kingdom is largely untested.
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