Much has been printed and commented on over the weekend about the recent guidance issued by the Law Society on drawing up Shariah compliant wills.
There seems to be a perception that UK law is being somehow bent to the needs of Islamic Shariah law, whereas it is much more about making Shariah inheritance law work for Muslims within the confines of UK law – England and Wales to be more precise.
Inheritance law differs considerably under both codes. When taking a look at Islamic inheritance jurisprudence you can see where conflicts with English inheritance law could occur.
Under an English will the beneficiaries are usually named either individually or as a class, under Shariah law some of the beneficiaries are a set of defined 'primary' and 'residual' heirs.
As the Law Society of England and Wales points out there are a number of primary heirs .
• grandfather (father's father and mother's father)
• uterine brother (half brother on mother's side), and
• full sister
• consanguine sister (half sister on father's side)
• uterine sister (half sister on mother's side)
• mother, and
• grandmother (father's mother and mother's mother).
Sharia rules define exactly how much of the remaining estate each primary heir receives, depending primarily on the total number of heirs. They will not, however, receive the entire estate between them, as a portion will be reserved to the residuary beneficiaries.
It is worth noting that, although in general under Shariah law male heirs receive twice the amount that female heirs receive, there are twice as many primary female heirs.
Furthermore, there are Shariah requirements concerning the priority of where the inheritance goes, which the Law Society lists:
• First, the cost of the burial and any debts are paid.
• Secondly, a third of the estate may be given to charities or individuals who are not obligatory heirs.
• Finally, the remainder is given to a defined set of 'primary' and then 'residual' heirs.
Therefore, for a will to be valid and comply with both English law AND Shariah law, it has to have the correct structure and this is what the Law Society guidance is helping to achieve. Also bear in mind that the will would still be "….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".
Instead of being viewed as some sort of contentious issue it should be held up as an example of how English law maintains primacy while other needs are met. Remember that under English law you can leave your assets to whom you choose – so this guidance facilitates that concept within England and Wales for Muslims.