March 23, 2014
The Law Society is to issue a practice note to solicitors who may be interested in drafting “Sharia-compliant” wills for their Muslim clients. Some have argued that by issuing the note the law society has opened the doors on the technical issues surrounding gender discrimination inherent in Sharia not only regarding the inheritance provisions, but more importantly endorsing a different set of laws for different groups of people. The idea of equality before the law is being threatened.
In Britain, unless you draw up a will, your estate on death will be distributed according to the rules of intestacy. However, although people can do whatever they want with their assets and a lawyer must follow the client’s instructions; it has been argued that this guidance legitimises discrimination towards women, “illegitimate” and adopted children, and non-Muslim partners or offspring who may be the result of inter-marriage.
The key paragraph states: “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.”
It adds: “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 ‘descendant’. Under Sharia rules, the children of a deceased heir have no entitlement, although they can benefit from the freely disposable third [the third of an estate that can be given to non-heirs or charities].
“Similarly, you should amend clauses which define the term ‘children’ or ‘issue’ to exclude those who are illegitimate or adopted.” It has been argued that the ruling advises solicitors on how to discriminate and avoid equality legislation. But a person has always been able to distribute their assets in any way they choose, and a Muslim may legally have done so according to Sharia principles without letting the lawyer know the basis of the instructions. But the question now is that a solicitor could offer this service and develop a product specifically designed for a Muslim client who wants to distribute their assets according to their religious requirement, which could be considered socially unacceptable. Suppose a client instructed that their assets should not go to a relative because they happened to be of a different race or religion. Would that be acceptable? If one were to accept that people have the right to act in a discriminatory fashion with their assets if they choose to, this guidance encourages solicitors to adopt a separate approach to clients who are deemed “different” – in this case, clients who are Muslim. The guidance also states that “there are specific differences between Sunni and Shia rules on succession.”
The code of conduct for solicitors which all solicitors must abide by says: “As a matter of general law, you must comply with requirements set out in legislation – including the Equality Act 2010 – as well as the conduct duties contained in this chapter.”