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Islamic inheritance in Australia and family provision law: are Sharia wills valid?

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Abstract

This article explains the context of Islamic inheritance and the distinctive nature of what is called in a preliminary sense as ‘Muslim intergenerational property’. The article suggests that a wider view of inheritance should be taken on the basis that inheritance is an intergenerational process that, in the case of Muslims, incorporates religious notions. Secondly, the article describes family provision law and the particular nature of the English transplant of inheritance law into Australia. Thirdly, the article describes the nature of legal services provided to Islamic families and the drafting of Sharia wills. Fourthly, in the light of the law under the State and Federal family provision legislation, the article considers the validity of Islamic wills.

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Notes

  1. This article draws on research interviews were conducted as part of an Australian Research Grant with Adam Possamai, Joshua Roose, Stela Dagistanli and Bryan Turner. See Voyce et al. (2016). This article draws on this material and Voyce et al. (2013).

  2. This pattern is, to some extent, reflected in the intestacy schedules laid out in the succession legislation in the various States. See Tilse et al. (2015).

  3. Ibid.

  4. For a convenient collection see Welchman (2004).

  5. Unger (2006). I am grateful to the authors here in Wilson (2016).

  6. This fieldwork was conducted in the Western Suburbs of Sydney in 2012–2015. The fieldwork was based on a snowballing sample method and consisted of 57 respondents. For further details, see Voyce, above n 1.

  7. Alma’amun (2010). The term ‘mal’ may be translated as wealth or as anything that has economic utility: See Turner (2006). Islam makes it clear that each man has the individual capacity to accumulate wealth, as long as such accumulation is in harmony with man and society. A man’s financial duties include paying taxes, giving dowries, protecting orphans, making a will and testament and abiding by matters as to inheritance (Qur’an 4/7, 4/10–12, 4/176).

  8. Alma’amun, Islamic Estate Planning, above n 14, 85.

  9. These findings also mirrored the comment by Black et al. (2013).

  10. By the ‘liberal view of property’, I mean the legal rights that are attached to property, such as the rights of exclusion, possession and dispossession. The right of dispossession includes the right of alienation and the right of testamentary disposition. The idea of testamentary freedom is seen as the essential element in property: See Radin (1993).

  11. See Quran 17/23, Abu Hurairah (Companion of Prophet) stated: ‘a person is indeed disgraced, who does not earn paradise by caring for his parents during the life time and old age’.

  12. Kreiczer-Levy, above n 19, 151.

  13. Pradhan (1990). For instances of these types of arrangements in Finland, see Abrahams (1991). As regards the general and the intergenerational contract in Europe see Albertini and Kohli (2013). It may be noted that Australian farmers do not negotiate definitive contracts concerning the handing over of the family farm. However, because these arrangements are often made in the form of informal testamentary promises, they are not usually held to be valid. The significance of this is that the law as an authoritative discourse excludes some forms of customary arrangements. See, for instance, Vigolo v Bostin (2005) 221 CLR 191, as discussed by Malcolm Voyce, ‘Vigolo v Bostin (2005) Family Provision and Farming Sons’ (2005) Retirement and Estate Planning Bulletin, 249. There are a variety of reasons why such promises are not upheld — one being that they are not in the appropriate legal form, another being that they are overridden by the need to support other persons as specified in family provision legislation.

  14. See Voyce, above n 1.

  15. Interviews with various law firms by Malcolm Voyce and Joshua Roose in September 2012. These interviews were conducted as part of the Australian Research Grant referred to at Voyce, above n 1.

  16. The role of lawyers in supporting middle class ideologies and inventing new categories of trusts and forms of conveyancing (for example the strict settlement) in response to specific socio-economic situations has been well noted by researches. See Cain (1979); Harrington (1994); Sugerman (1983).

  17. A full discussion of the complex area of Islamic succession law is beyond the scope of this article, see Arshad (2010); Hussain (2011); Pearl and Menski (1998); Coulson (1971).

  18. Foucault noted how in Middle Ages the confinement of the poor, the insane and vagabonds created new social formations. With the rise of modern psychiatry, he also noted the medicalization, stigmatization, normalization of sexual deviance in modern Europe. The effect of such discursive power is that certain divisions or ‘dividing practices’ were made where certain signifiers were in a commanding position and certain forms of signification were silently excluded. See Foucault (1982).

  19. In the nineteenth century, English legislation was concerned with the smooth transition of property to lineal descendants and swith irregular sexual activity, which was seen as a threat to orderly transmission of property, see Harrison and Mort (1981). As regards Muslim society, see Idriss and Abbas (2011). Foucault’s insight is instructive. He argued, through his concept called the ‘deployment of alliance’, how sexuality was tied to the significance of blood, rather than the constitution of identity. In this situation, the permanence of marriage and the patrimony under the system of primogeniture would be threatened should the bloodline be diluted. See Foucault (1978). For another approach see the work of Carole Pateman who argues that ‘the social contract presupposed the sexual contract, and that civil freedom presupposed a patriarchal right’: see Pateman (1988). As regards Australia, see Voyce (2009).

  20. Prior to 2004, Croucher was known as Atherton.

  21. At the turn of the nineteenth century, following growing agitation for change in the position of women and a shift from the strictness of laissez faire and with the growth of the belief that the state should enter the private realm to protect weaker members. Bellamy (1990).

  22. In the Australian Parliamentary debates and in the reports of Magistrates Courts it was commonly claimed that ‘there was a solemn obligation resting upon a parent to provide for children, and for the children to relieve the necessity of the parent’. It was argued by one speaker that to interfere with that obligation was ‘to seriously undermine the moral fibre of the community’. Twomey (2002). On how marriage was seen as an ‘economic partnership’, see New South Wales Parliamentary Debates 1905: 2887, 2889.

  23. Cover (1983). Cover argues that ‘we inhabit a ‘nomos’ or a normative universe, which we create and maintain a world of right and wrong’. This normative universe is held together by the force of interpretive commitments of officials and of others’ law is a small part of this universe and for every constitution there is an epic, for each Decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live’.

  24. The notion of the settler state was the period of history when Australia was said to ‘ride on the sheep’s back’ and that pastoral industry carried the economy of the country. During this period, a particular family ideology prevailed which was seen as descriptive of family life rural life. See McMichael (1984).

  25. It is acknowledged that recent cases give a fairer share to daughter and widows and that farming sons’ to not have a right to the family farm based on the idea that the farm must be kept in the family. See Voyce (1994, 2014).

  26. Some scholars have argued that the right to inherit property assists in maintaining personal identity and helps cement social bonds. See Kreiczer-Levy (2011, 2012a, b, 2013); Kreiczer–Levy, above n 19, 131. This argument has found expression in the idea of group rights and the view that different cultural groups ought to have their group rights recognised as a form of customary law. This argument has been developed by Kymlicka and others, see Peter Jones, ‘Group Rights’, Stanford Encyclopaedia of Philosophy. See eg, Doppelt (2001–2002).

  27. See a classic collection in Goody (1976). Different issues have emerged in rural inheritance studies, such as the impact of partible and impartible inheritances on social and economy life, social stratification, inheritance inequality and the exclusion of women from receiving property.

  28. The other jurisdictions that have these laws are New Zealand, Canada (except Quebec) and England (including England and Northern Ireland).

  29. The various acts and ordinances are: Family Provision Act 1969 (ACT); Succession Act 2006 (NSW); Family Provision Act 1970 (NT); Succession Act 1981 (Qld); Inheritance (Family Provision) Act 1972 (SA); Testator’s Family Maintenance Act 1912 (Tas.); Administration and Probate Act 1958 (Vic); Inheritance (Family) and Dependents Provision Act 1972 (WA). Dower was abolished in Australia: See Dower Act 1836: 7 WM IV No 8; see in NSW the Real Estate of Intestates Distribution Act 1862 (NSW).

  30. Standard works include Englefield (2011); De Groot and Nickel (2012); Atherton and Vines (2013); Dal Pont and Mackie (2012).

  31. Eligible dependants are defined by the respective state and territory laws and ordinances. As regards NSW, see s 57 of the Succession Act 2006 (NSW). Note in NSW the list of eligible claimants has been expanded.

  32. Allardice; Allardice v Allardice (1910) 29 NZLR 959, 969 (Stout CJ). Although the range of applicants has been enlarged since Stout made this comment, the thrust of the comment is still true as to the overall limit of the discretion.

  33. Bryant v Bryant [1986] NSWSC 1481 8 (Needham J); Worthington v Dickson [1984] WASC 1928.

  34. This is seen in the rural context where farmers get some special concessions as regards stamp duty and tax in general as well as the benefits of ‘rural restructuring’ in the form of special grants and tax concessions. These benefits are not taken into account in many cases.

  35. Barns v Barns (2003) 214 CLR 169, 173 (Gleeson J).

  36. This is the wording of the New South Wales Act s 59 (2). For comparisons in wording of the various Acts see De Groot and Nickel, above n 44, 8.

  37. As regards NSW, see s 57 of the Succession Act 2006 (NSW). Note in NSW the list of eligible claimants has been expanded.

  38. On the question of community standards see Atherton (1999).

  39. See Succession Act 2006 (NSW) s 60(2).

  40. Pontifical Society for the Propagation of the Faith v Scales (1961–2) 107 CLR 1, 19 (Dixon J).

  41. Permanent Trustee Co Ltd v Frazer (1956) 36 NZLR 24.

  42. [1910] 29 NZLR 959, 972–3 (Edwards J).

  43. Re F J McNamara (1938) 55 WN (NSW) 180, 181; See similar comments in Murphy (1979). More recently, the High Court described the moral duty approach as a gloss which they considered lacked ‘any useful assistance’. See Mason and McHugh (1994).

  44. Vigolo v Bostin (2005) CLR 191, 204 (Gleeson J), 230 (Callinan and Heydon JJ).

  45. In New Zealand, the legislation is called The Family Provision Act 1955.

  46. See Succession Act 2006 (NSW) s 98.

  47. [2000] NSWSC 126.

  48. [1999] NSWSC 1216.

  49. See Ridge (2005). Such a group would be outside a list of eligible claimants see Succession Act 2006 (NSW) Section 57.

  50. [1967] VR 91.

  51. [1967] VR 91, 94 (McInerney J).

  52. Succession Act 2006 (NSW) s 60(2).

  53. Coulson, above n 26, 228.

  54. De Groot and Bruce W Nickel, above n 44, 51–64.

  55. Ibid, 51–63.

  56. [2005] HCA 11.

  57. Voyce, above n 22.

  58. Dal Pont, above n 44, 234.

  59. See similar conclusions in Wilson, above n 11, 25.

  60. Informant from ARC study referred to at Voyce, above n, 1.

  61. This is seen in farm cases as for instance as in Lee Steere v Lee Steere [1985] 10 FLR 431, the Full Court indicated here that there is no ‘farming case’ exception of the ordinary principles applicable under s 79 of the Act. Their Honours said ‘We must therefore reiterate that in relation to farming properties, as in relation to all other assets be they business assets or suburban land, the ordinary principles of s 79 of the Act apply’: 80,076–80.

  62. See Croucher and Vines (2013); Young (1992).

  63. See Voyce, ‘Family Provision, the Family Farm and Rural Patriarchy’, above n 37, 1–53; Voyce, ‘The Impact of Testators’, above n 37, 191–224.

  64. However, the Family Law Act (Cth) s 60CC recognises the importance of children keeping a connection with their Indigenous culture after family breakdown and separation. The Succession Act 2006 (NSW) s 60(2)(o) also details that, amongst other considerations it may take into account, the court may take into consideration any relevant Aboriginal or Torres Strait Islander customary law.

  65. See Ahmed (2016).

  66. The court will not override a will on the basis that it prefers one side of the family against another side Blathwayt v Crawley [1975] AC 397. Hoover should a will act to break up a family on the grounds of public policy a court will render the will void see The Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960)104 CLR 394.

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    Malcolm Voyce

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Voyce, M. Islamic inheritance in Australia and family provision law: are Sharia wills valid?. Cont Islam 12, 251–266 (2018). https://doi.org/10.1007/s11562-018-0417-y

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