Wills, religion and the state

By Legal Eagle

A paramount tension in cases involving disputes over wills is between testamentary freedom (the idea that people are entitled to stipulate how they want their property distributed once they are dead) and, on the other hand, a desire to prevent unfairness. What happens if a parent leaves property to two of his four children? What happens if a parent leaves nothing at all to her children and gives all her substantial fortune to the Lost Cats’ Home? An aggrieved family member can make an application to have proper provision made for them in a will. There is always a slight uneasiness about this, however, because the court is effectively overruling the intentions and wishes of the deceased.

One area where it gets particularly difficult is in the area of discriminatory wills. There are a bunch of wills where the parent has said that his or her child will not get a bequest under the will unless the child marries someone (or does not marry someone) of a particular religion.

  • Clayton v Ramsden [1943] AC 320: bequest to daughter forfeited if she did not marry someone “of Jewish parentage and of the Jewish faith” – held to be void for uncertainty;
  • Re Harris [1950] VLR 192: trust for certain persons of the Jewish faith who had Jewish spouses – held to be valid;
  • Re Allen [1953] 1 Ch 810: disposition to person who must be a member of the Church of England to be effective – held to be valid; 
  • Re Hurshman (1956) 6 DLR (2d) 615: bequest to daughter forfeited if she married a Jewish man – held to be void; 
  • Re Kearney [1957] VLR 56: trust for grandchildren who were Roman Catholics and not married to Protestants – valid; 
  • Church Property Trustees Diocese of Newcastle v Ebbeck (1960) 104 CLR 394: bequest to sons only given on the condition that their wives converted to Protestantism – void as against public policy;
  • Re Tuck’s Settlement Trusts, Public Trustee v Tuck [1976] 1 All ER 545: bequest to son and grandsons predicated upon marrying a Jewish wife – held to be valid because criteria were certain.

As you can see from the cases above, the attitude of the court (a) varies from case to case and (b) often focuses on whether the criteria for the bequest is certain rather than the broader issue of whether discriminatory contract is allowable. Courts simply do not like ‘making a call’ about questions of religion or the like – their power is firmly grounded in the temporal, not the spiritual. This reflects the rise in secularism charted in Russell Blackford’s recent book (which I have reviewed here). The state must remain neutral with regard to religion. A prominent exception is Ebbeck’s case, where the Australian High Court said that such a bequest was against public policy.

Of course, often people die without making a will (which is known as being intestate). There are specific provisions as to how assets are to be distributed in the absence of a valid will: usually one-third to spouses, then parents, then the remainder is distributed equally between any children, and then to any next of kin (see eg, s 52, Administration and Probate Act 1958 (Vic)). In addition, if a deceased does not provide for someone under their will when that person was a person for whom the deceased had responsibility, the person may apply for what is called a maintenance order (see eg, s 91, Administration and Probate Act 1958 (Vic)). My examples of the families above where one or more children were not provided for are cases where the child might want to consider applying for such an order.

A recent case in the ACT, Omari v Omari [2012] ACTSC 33 raises questions of the intersection between personal testamentary choice, religion and the role of the state. The case involves a will executed by Mariem Omari on 13 January 2002. Mrs Omari was born in Turkey. Her main language was Kurdish, although she understood some Arabic and French as she had lived in Lebanon since she was young. (For reasons which will become apparent, the precise amount of Arabic understood by Mrs Omari was disputed by the parties). She spoke very little English, although she had lived in Australia since 1978. She was illiterate, and executed the will by making a thumbprint on each page. The executors of the will were two of her sons, Mohamed Omari and Mustapha Omari. Mrs Omari died on 7 September 2009, aged eighty-one. She was survived by three sons and five daughters. One of the daughters lodged a caveat against any grant of probate to the executors, on the ground that when Mrs Omari executed the will, she lacked testamentary capacity. It seemed that Mrs Omari had been suffering from dementia from about 1998, and by the time a geriatric physician saw her in February 2002, her condition had deteriorated. Apparently she was constantly trying to “go home”, but she did not know where home was any more (how horribly tragic!). A guardianship order was obtained in 2002 in favour of the executor sons.

Importantly, there were disputes among the family in relation to the management of the investment unit. A third son, Youssef, had a power of attorney executed in his favour in 1995 for the purpose of buying the investment unit. The executor sons, Mohamed and Mustapha, came to believe that Youssef had not been paying the income from the flat into their mother’s account, and had instead used it to pay off gambling debts. A daughter, Sabah, had a power of attorney drawn up in her favour in 2000, and organised for the transfer of the mother’s investment unit to another sister, Mona. The executor sons, Mohamed and Mustapha, made an application to the Guardianship tribunal to get the powers of attorney and the transfer to Mona set aside. Importantly, in those proceedings, Mohamed deposed that by January 2000, when Mrs Omari executed the power of attorney in favour of Sabah by thumbprint, she was already exhibiting signs of dementia, and that he did not believe that his mother had placed her thumbprint on the power of attorney voluntarily or knowingly, or appreciating what she was doing.

The executor sons gave evidence that their mother was a devout practicing Muslim, and that she was obliged to make a will according to Muslim guidelines. The will executed on 13 January 2002 was derived from a precedent drafted by a former Imam for practicing Muslims. The will had been signed at a restaurant owned by a Mr Mohamed Haydar, and Mr Haydar was a witness to the will. The second witness to the will was Mr Said Bouzid, who was employed by Mr Haydar as a chef at the restaurant. Mr KK Haque, a justice of the peace, was also present. The will provided for the estate to be divided into 11 portions. Each son got two elevenths, each daughter got one eleventh (in other words, the sons got twice of what the daughters did). The Imam of the Canberra Islamic Centre gave evidence that the standard practice in Muslim wills is that the testator or testatrix will leave full shares to sons and half shares to daughters, and that one boy is equal to two girls.

Mohamed said that Mr Haydar asked his mother whether she knew what she was there for and that she replied “Yes, I’m coming here for my will. But please, sons, make sure that applied in accordance, I fear God, I am a Muslim woman, make sure you apply to do the right thing here”. Mr Haydar then asked her whether she understood it was an Islamic will prepared in accordance with the Islamic faith. Mrs Omari replied “I understand but I don’t read or write”. The conversation took place in Arabic. The daughter who sought to set aside the will, Fatama Omari, alleged that her mother’s understanding of Arabic was not strong, and that different Arabic dialects could be very difficult to understand even for native Arabic speakers.

Six weeks after Mrs Omari signed the will she moved to a residential aged care facility, and she resided there until her death in 2009.

Ultimately, Master Harper decided that Mrs Omari did not have capacity when she executed her will in February 2002. It was important to his reasons, I think, that Mohamed Omari had given evidence in the Guardianship Tribunal proceedings that his mother did not have capacity when she executed a power of attorney in favour of Mona Omari in January 2000. If she did not have capacity to execute a power of attorney at that time, then she did not have capacity to execute a will some two years later. Master Harper said at [63] – [64]:

I have come to the view that they arranged for their mother to execute the will which she executed, either well knowing that she did not understand what she was doing or what the effect of her execution of the will would be, or alternatively with indifference to whether or not she understood those matters. I accept that both of the plaintiffs generally believed that it was their mother’s duty under Islam to make a will generally leaving full shares to her sons and half shares to her daughters. I accept that they generally believed that if their mother had been asked to make a will at an earlier time in her life, when she knew and understood what she was doing, that she would have made a will generally consistent with those Muslim expectations. I think that the plaintiffs in having the will prepared and arranging for their mother to execute it thought that they were doing the right thing. I do not think that either of them acted out of greed or any intention to obtain a personal benefit at the expense of anyone else.

However, I am satisfied that by January 2002 the plaintiff was suffering from advanced dementia causing severe cognitive impairment. I am satisfied that her dementia had been present for a number of years and had been progressing. I accept the opinion of Dr Rea that by January 2002 the dementia was well-established and the plaintiff would not have had any understanding of any document she might have been asked to have sign by that time.

Consequently, the will was invalid, and Mrs Omari’s estate was to be distributed according to the intestacy rules (in other words, equal shares to each child).

Following the decision there was criticism from Australian Muslim leaders who felt that the importance of sharia law had not been respected in the court’s decision. Mr Ikebal Adam Patel, the president of the Australian Federation of Islamic Councils, said the court’s decision could have serious ramifications in the Australian Islamic community, particularly in caring for the elderly because under sharia law, men received more than women because they were the carers of the family, including elderly and disabled relatives, and therefore should receive a greater division of assets. Meanwhile, Nicola Roxon, the Attorney General, said that there was no place for sharia law in Australian society and the government strongly rejected any proposal for its introduction, including in relation to wills and succession. She stressed that the government was committed to protecting the right of all people to practise their religion without intimidation or harassment, but within the framework of Australian law.

There are a few points to be made here. First, if Mrs Omari did not have capacity to make a valid will under Australian law, then that’s the end of the story. It cannot be enforced in Australia. This is regardless of whether the will was drawn up according to Muslim, Jewish, Hindu or Kalathumpian precepts. And if the will is invalid, then the intestacy provisions kick in. Intestacy provisons are default provisions, and they do not follow Muslim tradition but resemble Roman law rules. That is, spouses and parents take one third, children take next, and next of kin take after that. Further, the concern of our law is to create equality of dispositions to children rather than to enforce some kind of differential rule based on gender. In other words, the testator family maintenance provisions kick in if someone feels that they have been unfairly left out in such a way as to make the distributions unfair or unequal. The person may apply to the court to get some kind of benefit under the will.

Now, if Mrs Omari had been compos mentis at the time when she made her will, I suggest that there would be no problems with it, and that it would be able to be enforced, notwithstanding the fact that the provisions for sons and daughters are unequal. Evidence could have been given that she was of sound mind and that she intended this given the requirements of sharia law. If devout Muslims want to make their will according to sharia law then I suggest they are still entitled to do so. (As a liberal, secular feminist, I recoil slightly at the words “one boy is equal to two girls”, but that’s beside the point – it was Mrs Omari’s money to do with as she chose, presuming that she had the capacity to choose, and within reason, it is not for me to tell her how to distribute her property).

However, Muslims in Australia also have to follow our laws with regard to capacity to execute a will. The problem here was not that the will was discriminatory towards Mrs Omari’s female children or that it applied sharia principles; the problem was that Mrs Omari did not have the capacity to understand what she was doing when she did it. Given that she did not have capacity, the will was invalid, and given that it was invalid, our default legislative provisions apply. There’s no room for inventing some kind of default sharia provisions to apply in the event of the intestacy of a Muslim person. Nor does the Federal Government seem at all keen to legislate. And, I suggest, this is the way it should stay.

27 Comments

  1. Posted March 18, 2012 at 4:15 pm | Permalink

    Ah, one of the advantages of becoming a “nobody”. Nothing left to fight about … heh.

  2. Posted March 18, 2012 at 6:04 pm | Permalink

    There’s no room for inventing some kind of default sharia provisions to apply in the event of the intestacy of a Muslim person.

    The presumption that either
    (1) A given Muslim person wants Sharia to apply; or
    (2) Being Muslim means Sharia should apply
    is not one that we should countenance.

  3. Posted March 18, 2012 at 6:19 pm | Permalink

    Wills can fall over for the same reasons that contracts can fall over — duress (vis ac metus), fraud, facility and circumvention, undue influence etc. A huge problem for Sharia is that it is so anti-woman that any court called upon to rule on a Sharia-based contract or will involving a woman (especially an illiterate woman) is likely to find one of the vitiating factors. The Jews had to give up their (considerably milder) anti-woman traditions to have religiously-based arbitrations supervised by the Beth Din (rabbinical courts) accepted. The Muslims are just going to have to do the same.

    That apart, Muslims should be thankful they don’t live in Roman law jurisdictions where even in a testate estate, the spouse and children get automatic cuts (the ius relicti/ae and legitim) and in equal shares.

  4. Posted March 18, 2012 at 8:46 pm | Permalink

    SL @ 3:

    You will find that wills do not fall over for the same reasons as contracts if you try to set aside a testamentary gift on the grounds it was obtained by undue influence.

  5. Posted March 18, 2012 at 8:58 pm | Permalink

    Really? It will over here! (Not a common law jurisdiction, tho). I literally had to solve a model problem based on undue influence and gifts on Friday for my conversion course.

    Mind you I haven’t looked at common law succession since 2006, so it’s highly likely that things have changed since I did or are completely different and I’ve forgotten 🙂

    Now I’m curious: what are the rules over there?

  6. Patrick
    Posted March 19, 2012 at 4:48 am | Permalink

    I’m with Lorenzo here.

    Following the decision there was criticism from Australian Muslim leaders who felt that the importance of sharia law had not been respected in the court’s decision.

    Add to which my criticism of Australian muslim leaders for being misogynistic chauvinist [REDACTED BY LE].

  7. prialprang
    Posted March 19, 2012 at 5:47 am | Permalink

    Experience shows that becoming ‘Australian’ is a long, hard process for immigrants, particularly those with a strong cultural/religious heritage. I would say about four generations before most of the ‘un-Australian’ habits and behaviour patterns are winnowed out. So, plenty of work still for our Legal Eagle, nein?

  8. Posted March 19, 2012 at 6:24 am | Permalink

    SL:

    “Undue influence” in testamentary cases is more akin to duress than equitable undue influence. It is necessary to prove the deceased’s will was overborne. The presumptive relationships from equity do not apply.

    Here is a recent summary from Brereton J (a man who from his youth had judgments in his knapsack) in Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 :

    Undue influence

    40The doctrine of undue influence operates quite differently in the context of wills from its operation in the field of inter vivos transactions. In the law of wills, undue influence is equivalent to coercion, by actual force or threats – but not by appeals to sentiments of affection, gratitude, pity or ties of kindred, which may legitimately be pressed on a testator. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating in probate unless it produces a will contrary to the will of the testator [ Ridge v Rowden , 46]. There must be an overpowering of the testator’s volition [ Hall v Hall (1868) LR 1 P&D 481, 481-2]. As Sir John Nicholl said in Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577 (at 581):

    The influence to vitiate an act must amount to force and coercion destroying free agency – it must not be the influence of affection and attachment – it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion – by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.

    41The burden of proving undue influence is borne by those impugning the will [ Boyse v Rossborough (1857) 6 HLC 1, 51]. What must be proved is actual coercion of the mind as to produce an act contrary to the will of the testator [ Boyse v Rossborough ]. It is insufficient to show power or opportunity to overbear the testator’s will; it must be shown that that power was exercised , and that it was by means of its exercise that the will was produced [ Hall v Hall; Wingrove v Wingrove (1885) LR 11 PD 81, 83; Buckley v Maddocks (1891) 12 LR(NSW)(Eq) 277; Winter v Crichton (1991) 23 NSWLR 116, 121; Woodley-Page v Simmons (1987) 217 ALR 25].

    42The party alleging undue influence must prove the claim on the balance of probabilities. However, an allegation of undue influence is a serious one, and the Briginshaw test applies, as Vickery J explained in Nicholson v Knaggs [2009] VSC 64 [at 130]:

    An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd .

    43That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1 NSWLR 351 – a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357):

    As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.

  9. prialprang
    Posted March 19, 2012 at 8:34 am | Permalink

    Legal Eagle,

    You’re right, of course but a tiny question mark (not recognised in Oz law) might have been that the old Muslim lady, senile, illiterate but firmly of the faith, would almost certainly have willed, if she had been able, in the way the plaintiffs(?) framed the document.

    But as I say, inability to comprehend what’s going on means local law defaults in, if you know what I mean!

  10. prialprang
    Posted March 19, 2012 at 9:01 am | Permalink

    Legal Eagle. Agree. And for what it’s worth we went off to a solicitor fairly early and fixed our wills and executors. We’re in the process of encouraging our offspring to do the same. It doesn’t cost much and may save oceans of tears! Wills can always be altered and they are not, repeat not, tempting fate – a superstition held by many in our so-called ‘advanced’ Western society.

  11. Patrick
    Posted March 19, 2012 at 12:14 pm | Permalink

    Sorry LE! I just feel obliged to gratutiously insult muslim leaders, I appreciate that it’s a pretty childish and inane reaction on my part 🙁

    I guess I feel that they are complicit in ‘soft’ suppression of free speech, along with their fellow travellers in the latte-brained left.

    But yea, I should perhaps grow up.

  12. kvd
    Posted March 19, 2012 at 4:17 pm | Permalink

    LE, since this is on the subject of wills, I’m wondering if you’d comment on the following? A month or so ago I was reading an English novel, one important element of which was the lodgement of a will with the “Central Registry”. It was said that this ensured the validity of that will against any further wills which “might turn up, unless that will was lodged in place of the earlier will”. Or words to that effect.

    So, two queries:
    – was that a valid statement of the then UK position (would’ve been 1950’s-60’s);
    – if so, does such a situation, or facility, exist in Australia?

    I’d always thought a validly executed will, properly drawn, witnessed etc., automatically supplanted any earlier version, whoever was holding it? Not vital, but just wondering…

  13. kvd
    Posted March 19, 2012 at 7:27 pm | Permalink

    Thanks LE. I will dig out the book tomorrow and maybe follow up with you if my recollection of the story is correct. I understand about the granting of probate; but this plot point had a different flavor. Or maybe just my faulty memory at work again.

  14. Posted March 19, 2012 at 8:40 pm | Permalink

    Big thanks to Marcellous; have shown your comment to some friends over here just for comparative law purposes 🙂

  15. Adrien
    Posted March 19, 2012 at 10:36 pm | Permalink

    As someone who has received an inheritance I can say only three things: no-one has a right to dictate how one’s descendant’s live their lives; nor can said descendants expect their forebears’ treasure, and- there is a downside.

  16. Patrick
    Posted March 20, 2012 at 3:43 am | Permalink

    Yes thanks Marcellous, that was very interesting.

    The Judge takes a very sheltered view imho of expectant beneficiaries though!

    And I do love the irony in refuting an allegation of sterility in NSW jurisprudence with reference to a case decided 131 years ago 🙂 As you say, he could write ’em.

  17. kvd
    Posted March 20, 2012 at 5:34 am | Permalink

    LE only to prove my memory was not so dim herewith the text in that novel – relevant bit is bolded:

    “Send it to the probate office at Somerset House. They register your will. When anyone dies and any solicitor anywhere applies for probate, the central probate office checks its files. If it has ever registered a will for that person that’s the will that will be proved.

    You mean if I registered a will then changed my mind and wrote a new one, it wouldn’t be any good?

    Unless you retrieved the old one and re-registered the new one, the old will would be the one adhered to.”

    Anyways, this lead me to a most interesting web search (unsuccessful thus far on the particular point) including a reproduction of ‘The Fifty Earliest English Will in the Court of Probate , London’ which can be found here if anyone is interested. It is a sub-set of a website which looks most interesting for other reasons as well.

    But my query remains: is this just a plot device?

  18. Posted March 20, 2012 at 12:00 pm | Permalink

    Patrick:

    The observation of Brereton J at [43] (though there is something wrong with that citation) is in answer to observations such as that by Windeyer J in Revie v Druitt [2005] NSWSC 902 at [54] that:

    It is generally recognized that it is extremely difficult to prove undue influence. The person who could give the best evidence is dead. That does not mean that it is impossible to establish undue influence, although I know of no case in New South Wales where the issue has been successfully raised.”

    It is Vickery J rather than Brereton who is responsible for the view which you describe as “sheltered.”

    It is a difficult issue because of what has been described as “the social acceptability of lobbying testators for bounty.” What influence is undue? What is the difference between changing a person’s mind and changing a person’s mind against their will?

    The actual contest once the testator/trix is dead is between people who are all volunteers apart from their moral claims on the deceased’s bounty. Family provision legislation provides a safety net.

  19. Ripples
    Posted March 21, 2012 at 7:28 am | Permalink

    I am always a bit peeved that there is an accusation that we are not “respecting sharia law” in direct response to said law trying to obtain preference over the law of the land. To me it is another case of religion seeking to hold preference of the secular because they have religion which is a bit of a bee in my bonnet.

    Regardless of what the poor lady may have wished the law is clear and alas intestate is the consequence of not making your wishes clear prior to a loss of capacity.

    It is also a big step to suggest that because someone subscribes to a faith they will automatically conform to all the requirements and tenants of said faith. I think the faith leaders are taking a big liberty on that score.

  20. homo economicus
    Posted June 25, 2014 at 7:51 pm | Permalink

    Religion is no justification for sexist discrimination. Happily, the The Rule of Law bulldozer disposes of religiously based legal quackery.

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