Exclusion zones

Many non-Muslims living in England and Wales will be aware of Sharia law but their understanding is often limited. Non-Muslim lawyers are no exception, which could explain why the Law Society recently published a practice note for solicitors dealing with clients where Sharia succession rules may apply.

The guidance has raised some questions – Is the practice note really needed and is it desirable? – not to mention a media backlash. It has provoked a response from those who see it as an unwelcome sign that Sharia law is creeping into the English legal system, with one commentator even referring to the Law Society’s actions as “shocking”.

In fact, the practice note was published in response to an increased number of requests from the private client solicitors whom the society represents.

Muslim clients want to ensure their wills are Sharia-compliant and can withstand challenges in the courts post-death, but many solicitors are unsure how to assist. The guidance is, therefore, a responsible act by a professional body seeking to educate its members and give them the knowledge and confidence they need to do a good job.

It states that as long as the will is signed in accordance with the requirements set out in the Wills Act 1837, clients may put in place a will that is also Sharia-compliant.

This is a logical and unsurprising conclusion as, unlike countries with forced heirship rules, English law states that English-domiciled persons have testamentary freedom to dispose of their estates how they wish, provided that the necessary formalities have been complied with.

The new guidance does not change the law. It simply confirms the principle of testamentary freedom. Most of us would agree that the state should not intrude in the private sphere of our lives.

So, what are the rules of Sharia succession? There are differences between Sunni (which the practice note covers) and Shi’a rules.

First, the cost of the burial and any debts are paid; second, one-third of the estate, known as the freely disposable third, may be given to charities or individuals who are not obligatory heirs; and finally, the remainder is given to a set of ‘primary’ and then ‘residual’ heirs.

Each heir receives a predetermined proportion of the entitlement depending on the number and nature of the surviving heirs. Unlike the usual succession rules in England, Sharia law does not allow inheritance via a deceased relative. Illegitimate and adopted children are also excluded.

Standard precedents

The main difficulty with preparing a Sharia-compliant will is the inability to state in advance who the heirs will be, as this can only be determined at date of death. The practice note gives drafting guidance and explains which ‘standard precedents’ should be amended to comply with Sharia requirements.

The controversy has arisen over
the fact that, as explained in the guidance, “the male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all and only Muslim marriages are recognised.”

This is different to the current, widely accepted view in England and Wales that male and female heirs are treated equally.

Some commentators have suggested that the guidance is promoting a gender discriminatory policy. But surely complete testamentary freedom comes at a price: that people may choose to leave their estates in a way which others may disagree with.

Treating female heirs differently from male heirs is not unique to Islam (see box). Discrimination plays a part in many clients’ succession decisions when making a will. Perhaps those who are up in arms about the Law Society practice note would be similarly disparaging about the choices of such non-Muslim clients.

If we cherish the ability to leave our assets to whom we wish, we surely must accept that some will choose to exercise this right in a way we personally do not agree with.

Unusual but not unique “When I was in practice, I had a number of Asian, non-Muslim clients who explained that in their culture it was not usual to include daughters in their will as it was expected that the daughters would be provided for by their husband’s families. This was often something that the daughters were fully aware of and did not expect to inherit. “Likewise, I had a non-Asian, male client, with his own business, who wanted to pass this on to his son. Through our discussions, he explained that he had always encouraged his son to participate in the business and given him the opportunity to do so. He believed that his daughters would marry and have children and that this would be their priority rather than the business. “His daughters were aware and their expectation of inheriting was limited accordingly. It was not an unusual scenario and, among a certain generation and particularly in the farming community, it was common to hear that the business would pass to the first-born son. “I also took instructions from a man who had not spoken to his son for many years. They had no meaningful relationship because the father did not agree with his son’s homosexuality. Consequently, there was no provision for his son in the will.”

Modern Britain

British society is changing. Looking specifically at the religious make-up of the UK, 2011 census figures show that the proportion of Muslims living in the UK rose substantially between 2001 and 2011, an increase from 2 per cent of
the population to 4.8 per cent. That equates to 2.7 million Muslims
and this number is rising.

The law is not something that remains static. It adapts and alters as society’s needs and expectations change. While Muslims are a minority community, they are a sizeable one. Is it realistic to ignore the specific needs of this community in matters such as succession?

There is already evidence that the family courts are willing to endorse marital financial agreements made under Sharia law and that unofficial Sharia courts and Islamic councils are enforcing Sharia law within Muslim communities in the UK.

The demand for Sharia-compliant wills is clearly there. The Law Society has simply listened to its members and given them the information they need. Private client lawyers would do well to take heed.

Jo Dutton is a former associate at Higgs & Sons and now private client programme development consultant for CLT 

Training tip: Wills and Probate for the Asian Client is a course covering Sharia law and important related issues, presented by Ian Bond, partner at Higgs & Sons. For details, go to www.clt.co.uk