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  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  VLR 192: trust for certain persons of the Jewish faith who had Jewish spouses – held to be valid;
- Re Allen  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  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  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  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  – :
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.