Posted: Friday, 4 January 2019 @ 13:43
So, the Law Society was accused of
giving its stamp of approval to discriminatory practices after it published
advice on writing sharia-compliant" wills which deny women an equal share and exclude “illegitimate” children or unbelievers.
The Society has denied promoting Sharia law and insisted that it was simply responding to demand.
The Law Society, which represents us solicitors in England and Wales, has written a guide on Sharia succession rules that will be used in British courts. It will mean that children born outside of marriage and adopted children could also be denied their fair share.
The guide states: 'No distinction is made between children of different marriages, but illegitimate and adopted children are not Sharia heirs.
'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.
Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death."
Before you go completely mad thinking it is the end of civilisation, it is worth reflecting that under English law, anybody can leave whatever property they like to whomever they like.
As someone(correctly) observed on the comments section of the Mail.
"You can be as arbitrary and capricious as you like. If you want to leave women out of your Will, you can. If you want to leave out gay people, fine. If you want to leave your estate to a charity for the promotion of cat welfare, sure. These guidelines don't change what exists already, which is TOTAL FREEDOM TO TESTATE."
And Nicholas Fluck president of the Law Society is correct when he says it was “inaccurate and ill informed” to see it as "promoting" Sharia law by publishing guidance on drafting Sharia wills.
I agree. If I am asked to draft a Sharia-compliant will, I would like to get it right rather than be exposed to a potential negligence claim. Thanks for the help, Law Society.
P.S There has been some discussion on the law forums on this. One interesting story which I obtained permission to use is this which shows that perhaps the Law Society guidance needs to be improved and that a lawyer ought to think carefully before advising someone on Sharia law.
"I find this fascinating . I was asked to prepare a will on the basis of Sharia law by a husband and wife. Actually the husband because wife wasn’t allowed to attend the interview. I pointed out to the potential client that in fact if I was advising his wife of some 25-30 years (the mother of his six children) I would advise her that he was making inadequate provision in his will and she should challenge it! He was not impressed.
This left me in a conflict situation with the couple. She would telephone me and give me instructions and he would come into the office. It was an impossible position to be in. luckily they withdrew their instructions – she wasn’t too happy either as he had recently taken a second wife without telling her. Apparently a husband is supposed to consult his first wife, he didn’t she found out when it was revealed to her the Home Office wouldn’t let second wife enter the country. What a mess!
I am a great believer in free will and the right to choose, however, the powers that be need to look again at the mess that is being created. I believe if anyone drafts a will on the basis of Sharia Law then they ought to make sure they make huge attendance notes see clients separate etc.
This is an area where the contentious lawyers could have a field day, laying to waste all non contentious lawyers – potentially.
If I am ever instructed to do a will on this basis, if I believe all parties are in agreement then I would bring it to the attention of the ‘Risk Management Partner.’ "