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.
26 Comments
Ah, one of the advantages of becoming a “nobody”. Nothing left to fight about … heh.
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.
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.
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.
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?
I’m with Lorenzo here.
Add to which my criticism of Australian muslim leaders for being misogynistic chauvinist [REDACTED BY LE].
Patrick, I’m quite happy with you criticising Muslim leaders for being misogynistic chauvinists on the facts provided in this case. The third insult was beyond the pale, I think. “Misogynistic chauvinist pigs” would have done (notwithstanding Islam’s aversion to pigs – or perhaps because of…).
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?
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 :
Prialprang, oh, there will always be work in wills! Only two things in this life are certain: death and taxes – but I think we can also safely say that disputes over the distribution of property involved with those two things are pretty much a given.
If Muslim people want to draft their wills such that daughters get half of what sons get, I think that’s up to them, even if the practice goes on for generations. It may be a rule that I personally find problematic, and which I’d never apply to my own children, but one of the concommitants of owning property is that a person should have a choice as to what they do with it (even after they are dead). It’s not my property so I should butt out. Note that my answer may be somewhat different if the mother in this case had left nothing to her daughters and everything to her sons: that might be a case for testator family maintenance provisions – but even then – we have to be very careful about how we intervene to disturb someone’s choice.
There are plenty of examples of unusual wills drawn up by people of all faiths and backgrounds. Sometimes people draw up wills which say, “The residue of my property to anyone except my ex-wife” – the validity of a provision such as that varies from State to State, but in my home state of Victoria, it will be valid (see s 48, Wills Act cf Horan v James). Note that where such provisions are invalid, the problem is not that the will is discriminatory or nasty; the probelm is that there has been a delegation of testamentary authority by the deceased (putting too much choice on the part of the executor). Or the testamentary trust in Re Gulbenkian for the benefit of anyone who had employed or resided with the son of the deceased (it was also valid). And then there’s the set of will trusts for the maintenance of horses, dogs or tombstones! Many of these have been valid too. Basically courts don’t like interfering with people’s last wishes, and they don’t like commenting on someone’s religious choices either. But they will come down pretty hard if they think a person didn’t know what they were doing when they entered into a will, as this case shows. It has to be a genuine choice.
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!
Prialprang, yes, sadly, I think that the lady in this case would have wanted her will to be as it was executed had she had capacity. I also think that this is precisely the reason why the sons/plaintiffs did what they did – they were trying to make sure what they thought would be her wishes were met, and ensure that she did the proper Islamic thing. It’s actually a reminder to write a will while you can rather than leaving it too late.
I would really hate to have one of those cognitive disorders like dementia. I was at the hairdressers the other day, and this poor lady with Alzheimers was waiting for her husband to pick her up. The husband said he’d be there in half and hour. She kept nipping out of the salon when people’s backs were turned, then forgetting where she was and what she was doing, whenupon salon staff would rescue her about 10 metres down the street, and bring her back to the salon, and she’d be all huffy and a bit offended each time: “I know what I’m doing!” Apparently there had been an incident a few months ago when she’d insisted on taking a taxi home from the salon, and then about 5 minutes into the drive, she forgot where she was, panicked, forgot what her address was, and the taxi had to return her to the salon, which was why staff were watching her like a hawk. Poor woman.
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.
We went and did our wills as soon as we had our first child. Not that we had much to distribute at that point in our lives (and – alas – not much more now) but it’s still important to prepare for these things. It’s weird, isn’t it, how people get worried about preparing for what might happen upon one’s death?
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.
That’s all right, Patrick. My immediate gut response to anyone of any religion or culture who says that boys are worth twice what girls are worth is unprintable…!
Incidentally, while my husband and I were talking about this, our daughter piped in with “Who says boys are worth twice as much as girls?” My husband joked with her and said, “No, girls are worth twice as much as boys.” My daughter frowned at him and said, “No, boys and girls are both equally important, Daddy, that’s what I think.” Hah! We must be doing something right.
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…
KVD, my understanding is that all wills have to go through a process where probate is granted by the court (in other words, the will has to be proved to be valid). It is only then that the executor can get the power to distribute the property under the will. The executor has to lodge a copy of the will with the Probate Registry who then verify it as true and correct and issues a grant of probate. I wonder if that is what they meant by “Central Registry”?
The will which goes through Probate must be the last will made by the deceased. You can’t trump a will by lodging an earlier one if there is a later valid one, and if you did so, you would surely risk being sued for maladministration of the estate (I’m imagining all kinds of interesting remedies for breach of fiduciary duty, personal actions pursuant to Re Diplock, equitable tracing of maladministered property into the hands of recipients etc). So – dunno what that book was on about, but I wouldn’t recommend it!?!
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.
Big thanks to Marcellous; have shown your comment to some friends over here just for comparative law purposes
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.
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.
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?
Hmmm, KVD, I’m really not sure that book is right. Somerset House is just a register, but I’m sure that it doesn’t do anything than just provide a convenient repository. Prudent to register one’s will – but not necessary to its validity. Methinks it’s a plot device.
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 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.
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.