Sharia-compliant wills—English bar association withdraws advice on how to draft them

|The Volokh Conspiracy |

The withdrawn practice advice is here; it was faulted in large part because of the statement that,

Certain principles of Sharia are different to English succession laws. For example, it is not possible to inherit under Sharia rules via a deceased relative. 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.

This means you should amend or delete some standard will clauses. For example, you should consider excluding the provisions of s33 of the Wills Act 1837 because these operate to pass a gift to the children of a deceased 'descendent'. Under Sharia rules, the children of a deceased heir have no entitlement, although they can benefit from the freely disposable third.

Similarly, you should amend clauses which define the term 'children' or 'issue' to exclude those who are illegitimate or adopted. The burial clause should also specify whether the deceased wishes to be buried in accordance with Sharia rules.

To be sure, testators are generally free to discriminate based on sex and religion in deciding how to leave their property, and lawyers should indeed seek to implement their clients' desires. Still, I take it that much of the question was whether the bar association, as an organization, should counsel their members as to how to implement such discriminatory preferences.

In any event, on Monday, the bar association (called the Law Society of England and Wales, which governs the solicitors' profession but doesn't generally cover barristers) officially withdrew its advice:

The Law Society has withdrawn its practice note on Sharia succession principles following feedback, including from some members.

Law Society president Andrew Caplen said:

'Our practice note was intended to support members to better serve their clients as far as is allowed by the law of England and Wales.

'We reviewed the note in the light of criticism. We have withdrawn the note and we are sorry.'

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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