The opening paragraphs of the Telegraph’s report on this issue could be seen as slightly misleading:
Islamic law is to be effectively enshrined in the British legal system for the first time under guidelines for solicitors on drawing up “Sharia compliant” wills.
Under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills that deny women an equal share of inheritances and exclude unbelievers altogether.
The documents, which would be recognised by Britain’s courts, will also prevent children born out of wedlock – and even those who have been adopted – from being counted as legitimate heirs.
Anyone married in a church, or in a civil ceremony, could be excluded from succession under Sharia principles, which recognise only Muslim weddings for inheritance purposes.
The writer seems to imply that people could not, up till now, draft a legal will which was compliant with Sharia principles. This is not the case – in fact it seems one can be pretty much as capricious and bigoted as one likes when it comes to inheritance. Such a will would be valid – although one might legally be able to contest it in certain circumstances.
However this does not mean that there are not real grounds for concern here. Sadikur Rahman offers a more precise critique:
Now, of course a person has always been able to distribute their assets in any way they wish and a Muslim may completely legally have distributed their assets according to sharia principles, without letting the lawyer know the basis of the instructions. The difference now is that a solicitor could offer this service to a Muslim client and the Muslim client can say they want to distribute their assets in a certain way because of their religious requirement.
This guidance essentially provides legitimacy to use a system of law that is discriminatory towards women, particularly in the area of inheritance provisions. There seems no recognition of the fact that solicitors are being asked to use and accommodate instructions which in any other circumstances would be socially unacceptable or at which a solicitor may balk. Suppose a client instructed that their assets should not go to a relative because they happened to be of a different colour?
This raises serious questions about professional ethics and the role of the Law Society. The guidance seems not to recognise that there is a serious potential conflict between the Code of Conduct for solicitors and the guidance.
Rahman goes on to warn of the dangers of a kind of Sharia creep. One possible example of this is identified in the Law Society’s guidance notes.
Sharia heirs cannot be deprived of their entitlement to inherit. Any attempt to pass assets that are ‘due’ to a Sharia heir to someone else is invalid under Sharia rules. An heir who is deprived of their full entitlement has a claim against the estate or the person who has the assets. Lifetime gifts (other than on death bed or during a terminal illness) are an exception to this rule (see paragraph 5).
Under Sharia rules, there is no statute of limitations for this claim: it continues in perpetuity and can even be inherited. If a claim is still outstanding at the time the deprived heir dies, his or her own heirs can then make the claim. To date the enforceability of such a claim has not been tested by the English courts.
Is it being suggested that a ‘Sharia heir’ might be able to appeal a non-compliant will, in a way not open to any other person who felt aggrieved at being disinherited? It is noted that this process has never been tested, implying that one day it might be, and that it might possibly be upheld, creating a kind of parallel legal system.
Another possible question raised by the guidance relates to a 1975 Act which allows those who have been entirely excluded from a will to make a claim for ‘reasonable provision’. Presumably those able to lodge such a claim might include non-Muslim children. Is it appropriate for a lawyer to facilitate the exclusion of such children from a will when the law would seem to have decided that some provision should be made for them, as a matter of course?
Update: Apologies for linking to guidelines for contesting a will from a US site – there seems to be more room for Sharia-compliant wills to be challenged in the UK.
Further update: Do sign this petition