With the increasing number of British-born Muslims, Tom Glasspool foresees a rise in claims against religiously mandated wills.
The 2011 census put the number of Muslims in England and Wales at 2,706,066, or 4.8 per cent of the population, meaning the Muslim population is larger than all other non-Christian faith groups put together. The inter-play between the Sharia (the Islamic legal system) and domestic law is increasingly becoming a source of tension.
The Sharia is all-encompassing and deals with topics ranging from marriage contracts and economics, to diet and prayer - although the details differ between the various sects of Islam. One thing which the Sharia dictates is Islamic inheritance rules.
The details of Sharia inheritance rules, with numerous permutations of shares depending upon who survive the deceased, are complex but perhaps the most important element to understand is that the Sharia dictates fixed shares to heirs depending on their relationship to the deceased, with women taking less than men, and non-Muslims and adopted children excluded from inheriting altogether.
By way of simple example, under the Sharia, if a Sunni man dies survived only by his son and wife, his wife would inherit just 1/8 of this estate and his son 7/8. If a Sunni man dies survived only by his wife and a paternal brother, his wife would inherit just 1/4 of his estate, and his brother 3/4.
With the increasing number of British-born Muslims, it is only a matter of time before we start seeing an increase in cases where surviving relatives - particularly women - find themselves in situations where they have been left insufficient financial provision in a Sharia-compliant will and look to the English courts for redress.
In England we have testamentary freedom, and provided that a person's will is signed in accordance with the requirements set out in the Wills Act 1837 (it is in writing, intended to be the testator's will and is signed in the presence of two witnesses who also sign), he can leave his estate to whomsoever he wishes. There is nothing to prevent someone choosing to dispose of his or her assets in accordance with Sharia inheritance rules.
Having said that, testamentary freedom is limited by the Inheritance (Provision for Family and Dependants) Act 1975, which allows disappointed relatives and cohabitants to bring a claim. Provided the deceased was domiciled in England and Wales, certaincategories of people, amongst them wives and children, can make applications to the court to have the deceased's will varied to provide them with adequate provision if they feel that the deceased has not made 'reasonable financial provision' for them.
One such Inheritance Act claim made it into the national press last year. Mrs Ilott, an estranged daughter who had been excluded from her mother's will, successfully brought a claim against those who did benefit under her mother's will.
In 2014 there was much furore when the Law Society published guidance for solicitors in England and Wales on Sharia inheritance rules when drafting wills. It was railed against by many in the press as an encroachment of Sharia law into the British legal system, and accusations of advocating sexual discrimination were levelled. Bowing to public pressure, and the Lawyers Secular Society, the Law Society eventually withdrew the advice.
However, there is nothing inherently unlawful about a Sharia will in England. Its dispositions are simply open to challenge under the Inheritance Act like any other.
For example, the wife or daughter of a British Muslim may well feel that she should be entitled to receive more than she was left under a Sharia-compliant will, and she may be able to bring a claim under the Inheritance Act. For many there will be an undeniable tension between choosing a civil remedy over a religiously mandated system, but it is not difficult to imagine that as more people become aware of the option, some will make that choice.
With cases like Mrs Ilott's getting national attention, it is reasonable to assume that more people, regardless of faith, will become aware that they are able to bring a claim, and will do so.
Tom Glasspool is an associate solicitor in Withers' Contentious Trusts and Succession Group.