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Sharia Law And Succession In Australia

Australian succession law recognises any valid will, whether it is based on secular values or religious principles. This includes wills that are written according to Muslim Sharia law. Eligible parties can dispute a Sharia will, but only if it is legally invalid or legally unfair. This article explains Sharia-compliant wills in an Australian legal framework.

Testamentary Freedom

In Australia, every capable adult has testamentary freedom to dispose of their possessions as they wish. Testators usually distribute their wealth according to familial bonds, caring responsibilities, charitable feelings, and religious faith. There is no prohibition against adhering to religious beliefs within legal requirements. A Muslim is entitled to have their deceased estate dealt with according to Sharia law.

Sharia Compliant Wills

According to the Qur’an, every Muslim with something to bequeath has a duty to make a will. Many Muslims include instructions in their will for the proper treatment of their body after death. For instance, they might direct the executor to make preparations for washing and shrouding the body according to Islamic practice. The will can also specify the testator’s wishes for an Islamic funeral procession, funeral prayers, and burial. The testator can state that (in accordance with the teachings of the Quran) there should be no autopsy unless legally required.

Often a will is not read for several days after death, so the testator should also outline their wishes to their executor in person. It must be stressed that any burial or funeral arrangement instructions in a will are not legally binding. The executor is the ultimate decision-maker on these matters.

The Mawarith schedule of the Qur’an specifies how a Muslim should distribute their deceased estate. Under Islamic law, the deceased estate is distributed according to the following process:

  1. All funeral expenses are paid, then the deceased’s debts. This includes outstanding charitable obligations. Muslims perform a form of worship known as Zakat, where they donate a proportion of their wealth each year to charitable causes. A testator should stipulate how these debts should be paid in their will, including which assets should be sold to meet the obligations.
  2. The testator can distribute one-third of the remaining net estate to anyone they choose, provided they are not already heirs of the estate. The testator has absolute freedom to select these beneficiaries from anyone they wish, including non-Muslims.
  3. The remaining two-thirds of the net estate is distributed according to Islamic law. Beneficiaries of this portion of the estate must be Muslim and related to the deceased through biology or a lawful Islamic marriage. For instance, an adopted child cannot inherit from this portion of the estate.

According to Islamic law, the primary beneficiaries of an estate are the testator’s spouse, parents, and children. Each surviving parent receives one-sixth of the net estate. Where the deceased has children, the surviving husband receives one-quarter, or the surviving wife receives one-eighth of the estate. If the deceased had no children, the husband receives one half of the estate, or a wife receives one-quarter of the estate.

Sharia law commands a Muslim to bequeath twice as much property in their will to their male children as to their female children. If a deceased had no daughters, the male child inherits the remainder of the estate. If the deceased has only one female child, they receive half of the net estate. If the deceased had more than one female child and no male heirs, they share two-thirds of the net estate.

In the late 6th or early 7th century, when the Qur’an was written, the instruction to leave an inheritance to women was progressive. Under Sharia law, male heirs receive twice as much because they are financially responsible for their female dependents.

Sharia law and succession: Intestacy

It is always best for someone to prepare a will so that they do not die intestate. This is particularly important for Australian Muslims as if they die intestate, their property will be distributed according to Australian law rather than Sharia law.

Sharia law and succession: Disputing A Will

An eligible person can dispute a Sharia-compliant will. The rules that apply to disputing a will differ according to the specific jurisdiction. Essentially, a person challenges a will if it is fraudulent, if the deceased lacked testamentary capacity when they executed the will, or if the testator was unduly influenced to make certain bequests. An eligible person contests a valid will on the basis that they were entitled to greater provision than they received from the deceased estate.

The Supreme Court of the Australian Capital Territory examined the validity of a Sharia will in Omari and Omari v Omari [2012]. Ms Omari left a Sharia-compliant will that bequeathed her daughter half as much as her sons. The testator’s daughter challenged the will on the basis that her brothers pressured her mother to sign a Sharia-compliant will.

The court overturned Ms Omari’s will because she had advanced dementia when she executed the document and therefore lacked testamentary capacity to make a will. Crucially, the court made no judgment on the inequity of a will drafted according to Islamic principles. However, as the court declared that the deceased died intestate, her estate was distributed according to ACT intestate law in equal measures to each child.

Armstrong Legal can help if you need help to make your Sharia-law will compliant with Australian succession law. Alternatively, if you feel that you received an unfair provision under a Sharia will, our solicitors can help you obtain your legal entitlement. Please contact our specialist contested wills team on 1300 038 223 for legal advice.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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