Your will be done

Thursday 27 March 2014

The Law Society has issued formal guidance on making a “Sharia compliant” Will. This initiative by the Law Society has come under attack by campaigners for secularism, who accuse the Law Society of assisting discriminatory practices which deny women an equal share and excludes “illegitimate” children or unbelievers.

The guidance was published earlier this month and was distributed to lawyers in England and Wales to “assist solicitors who have been instructed to prepare a valid Will, which follows Sharia succession rules”, and would remain valid under the law of England and Wales.

The Law Society regularly issues guidance about different aspects of the law for the use and benefit of its members. Lawyers are not compelled to follow such guidance published by the Law Society, however they are used as examples of best practice policies.

The guidance contains statements such as: “The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised. Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of the death”.

Charlie Klendjian, secretary of The Lawyers’ Secular Society, has called for the withdrawal of the practice note advising solicitors to draw up Wills in compliance with Sharia law. Klendjian has raised the prospect of a public law challenge of the Law Society’s powers in distributing the guidance. Klendjian comments: “by issuing this practice note the Law Society is legitimising and normalising – or at the very least being seen to legitimise and normalise – the distribution of assets in accordance with the discriminatory provisions of Sharia law. This is a worrying precedent to set.”

An online petition has been launched by The Lawyers’ Secular Society campaigning for the Law Society to withdraw the guidance.

Labour MP for Huddersfield, Barry Sheerman warned against “laws” on this issue, instead he called for a joint investigation by the Commons Justice and Home Affairs Committees into the use of Sharia law in England and Wales. The guidance has been branded as “utterly unacceptable” by former Tory MP, Louise Mensch.

President of the Law Society, Nicholas Fluck has responded to the attacks, describing them as “inaccurate and ill-informed”. “We live in a diverse multi-faith, multi-cultural society. The Law Society responded to requests from its members for guidance on how to help clients asking for wills that distribute their assets in accordance with Sharia practice”…“our practice note focuses on how to do that, where it is allowed under English law.”

In defence to the accusations, Fluck added that the law of England and Wales will give effect to wishes clearly expressed in a valid Will in so far as those wishes are compliant with the laws of England. ‘The issue is no more complicated than that.”

Sharia rules are not currently formally recognised or included in the laws of England and Wales. However there are reports highlighting an increase in the use of Sharia laws, with an estimated 85 Sharia councils operating in England and Wales.

The laws of England and Wales allow a person the freedom to distribute their assets in any way they choose. In issuing its guidance, the Law Society is not advocating Sharia law, it is providing useful information to practitioners who may have limited knowledge of the Sharia rules of succession. The guidance issued by the Law Society is helpful in assisting with the drafting of a Will where a client has decided to choose to leave their assets in accordance with Sharia rules.