In the last round-up we made a very brief mention of the Law Society’s new practice note for solicitors on the sharia succession rules and how charitable gifts within sharia wills should be managed.

The guidance

Under the terms of s 1 the Inheritance (Provision for Family and Dependants) Act 1975, as amended, there are various people who may apply to the court for an order on the ground that the disposition of the deceased’s estate effected by his or her will or the law relating to intestacy does not make reasonable financial provision for the applicant: principally the spouse or civil partner of the deceased; a former spouse or civil partner who has not remarried or formed a new civil partnership; a child of the deceased; and any other person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased. Subject to the possibility of such a challenge, a testator may make whatever testamentary disposition he or she wishes. (We should mention in passing that the Scots law of succession is rather different and that in Scotland you cannot disinherit your spouse in the first place even if you want to: for a helpful series of FAQs see Austin Lafferty’s How to write a will.)

With that in mind, possibly the key paragraph of the practice note is the following:

“2.5 Religious choice

Some clients are domiciled for succession purposes in England and Wales, but still wish to pass their assets in accordance with sharia rules for religious reasons. Such clients may prefer a sharia compliant will, notwithstanding the freedom of disposition provided by English law.

Provided the will is signed in accordance with the requirements set out in the Wills Act 1837, there is nothing to prevent an English domiciled person choosing to dispose of their assets in accordance with sharia succession rules (subject to any potential claim under the Inheritance (Provision for Family and Dependants) Act 1975, which only applies where the deceased died domiciled in England and Wales). You will have to obtain probate on the sharia-compliant will, in the normal way”.

On the assumption that the average English or Welsh solicitor knows as little about sharia as we do and may well be faced with a client wishing to write a sharia-compliant will, the note overall appeared to us to be a sensible, helpful and thoughtful piece of advice. But not everyone shares that view.

Some reactions – and the Law Society’s response

The Telegraph carried a long piece headed “Islamic law is adopted by British legal chiefs” which claimed that “Islamic law is to be effectively enshrined in the British legal system for the first time” and that “under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills”. Continuing in a similar vein that “some lawyers” (unnamed) “described the guidance as ‘astonishing’“, it reported Baroness Cox as saying that it was a “deeply disturbing” development which “This violates everything that we stand for … It would make the Suffragettes turn in their graves”. Keith Porteous Wood, of the National Secular Society, was quoted to the effect that the guidance marked “… a further stage in the British legal establishment’s undermining of democratically determined human rights-compliant law in favour of religious law from another era and another culture”. A further Telegraph report said that there had been calls for a “Parliamentary inquiry into scale of sharia law in the UK”, with disapproving quotes from Peter Tatchell and from Labour MPs Barry Sheerman and Jeremy Corbyn.

The reaction of the Lawyers’ Secular Society was that by issuing the note

“… the Law Society is legitimising and normalising – or at the very least being seen to legitimise and normalise – the distribution of assets in accordance with the discriminatory provisions of sharia law. The Law Society is therefore being seen to legitimise and normalise sharia law more generally”.

The Telegraph quoted the response of Nicholas Fluck, President of the Law Society, to the effect that it was “inaccurate and ill-informed” to see the purpose of the guidance as promoting sharia:

“We live in a diverse multi-faith, multicultural society. The Law Society responded to requests from its members for guidance on how to help clients asking for wills that distribute their assets in accordance with sharia practice. Our practice note focuses on how to do that, where it is allowed under English law. The law of England and Wales will give effect to wishes clearly expressed in a valid will in so far as those wishes are compliant with the law of England. The issue is no more complicated than that” [our emphasis].

The Telegraph also quoted a spokesman for the Ministry of Justice to the effect that  “sharia ‘law’ has no jurisdiction in England and Wales and the Government has no intention to change this position” – a position which the MoJ has held consistently: see Sharia and the English legal system: the Government’s view.

Comment

It appears settled law that the courts of England and Wales will normally uphold the intentions of someone who has died as to who gets what, always provided that those intentions are not for an illegal purpose and not wholly unreasonable (eg not making any testamentary provision whatsoever for one’s widow(er) and small children). In Kohn v Wagschal & Ors [2007] EWCA Civ 1022, for example, the Court of Appeal upheld an arbitration by the London Beth Din relating to the destination of shares from an intestate estate. Said Waller LJ:

“… what the Beth Din have decided is that as a matter of Jewish law there was no evidence of a gift [of shares] to the [appellants]. In the result their award takes the shares back into the estate of the deceased. It seems to me that there is no public policy which requires this court not to enforce that award” [para 18].

There are obviously much broader questions here:

• First (C of E consistory courts excepted), to what extent, if at all, should the secular courts of England and Wales recognise or enforce the judgments or arbitrations of any religious tribunal?

• Secondly, as a matter of wider social policy should the law in England and Wales be more prescriptive (as in Scotland) about what is and is not acceptable by way of testamentary disposition?

On those matters we emphatically take no view: but to make the changes would certainly require fundamental amendments to the current  law (not least to the Arbitration Act 1996) which go far beyond the issue of “High Street solicitors” drafting sharia-compliant wills.

Surely the purpose of the practice note is this. Given the present law, “High Street solicitors” are already able to draw up a sharia-compliant will if that is what the client wants; but unless they are conversant with the sharia rules around succession (which, presumably, very few of them are) they will very likely make a mess of it.