Sharia wills furore missed the point

Nothing in the Law Society’s recently published practice note on Sharia inheritance changes what is needed for a will to be valid, despite the media furore.

It must be executed under the Wills Act, the testator must have mental capacity, they must approve the contents and the will must not have been procured by undue influence.

Testators can be unpredictable. However, the more capricious their actions, the more doubt can be cast on mental capacity or whether they were influenced.

The law does, however, recognise people who can expect appropriate provision from a deceased’s estate, in the form of the Inheritance (Provision for Family and Dependants) Act 1975. Various people are entitled to claim if a will doesn’t make provision, under this act, notably spouses, civil partners and dependants. Such applicants are entitled, in principle, to reasonable provision for their maintenance (with a more generous basis of awards for spouses). So, while the court will not rewrite a will to be “fair” or “moral”, it will give appropriate provision to those who the law deems are entitled.

Following the practice note, claimants have exactly the same rights as they do now under the Act. The fact that a testator wished that their female relatives should not be given more provision will, quite rightly, not be a relevant factor when the court assesses a claim. The English courts will not rule on theological matters but on the laws of our society. Wills, whether Sharia-compliant or not, cannot oust their jurisdiction.

Given the criticisms, the Law Society may now wish it had not published this limited guidance in an area of religious as opposed to secular law. Indeed, lawyers may be well advised to decline instructions to prepare a ‘Sharia-compliant will’ as they could face negligence claims from beneficiaries who don’t receive their expected entitlement as
a result of misconstruing
Sharia rules.

It would be far better to tell such testators that they will follow their wishes and ensure the will complies with English law, but that it is for the testator (with whatever external guidance they require) to say what the split should be. Also, lawyers need to advise that the division of estates according to Sharia principles may in some circumstances give rise to Inheritance Act claims.

Of more concern than the mainstream media reaction is the possibility that some women from Islamic communities may be dissuaded from making claims under the Inheritance Act. That would be very unfortunate.

Raising awareness of people’s rights in this area would be a better focus than creating uproar about a non-issue. The law has not changed. 

Simon Pedley is partner in the contentious trusts and probate team of Mills & Reeve