Insights from Recent Australian Cases: Wills for devout Muslims

Within a span of four months, two Australian superior courts addressed the interpretation of wills valid under Australian law but influenced by Shari’a principles or Islamic expressions. These groundbreaking decisions, Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253 and Re Haliem [2024] VSC 400, mark the first time Australian courts have dealt with such issues.

This blog looks at how these cases highlight the connection between wills and Islamic traditions, offering helpful advice for creating wills that follow both legal rules and religious values.

Zakat, a key pillar of Islam, involves charitable giving to eight eligible groups: the poor, the needy, those in debt, those promoting Islam, those serving God's cause, travelers in need, individuals in bondage, and those administering Zakat.

Case 1: The Will of Ahmed Abou-Khalid

Key Features of the Will

Ahmed Abou-Khalid’s will directed his executor to:

• Convert his estate to money;

• Pay debts, funeral expenses, and estate duties; and

• Make “Zakat payments” (which are, as detailed above, a form of Islamic charitable donation).

It also stipulated an Islamic funeral and burial and distributed the estate to his children, allocating shares where sons received twice the portion of daughters, in line with Shari’a traditions.

Judicial Advice on Zakat

The Supreme Court of New South Wales (Lindsay J) was tasked with determining whether the administrator was obligated to distribute part of the estate as Zakat. The Court concluded that:

• Zakat, within Australia, is voluntary, unregulated, and not legally enforceable.

• The will’s reference to Zakat payments lacked clarity, rendering the clause void for uncertainty.

The Court emphasised that unless a clear legal or religious obligation to pay Zakat existed before death, the administrator could distribute the estate without allocating funds for Zakat.

Key Insights on Zakat in Australian Wills

1. Voluntary Nature of Zakat in Australia: The Court affirmed that Zakat is a personal, voluntary act of conscience, not mandated by Australian institutions.

2. Clarity in Drafting: To avoid uncertainty, willmakers should ensure that any reference to religious obligations in their wills is clear, specific, and enforceable.

3. Role of Beneficiaries: With beneficiary consent, estate property could be used for Zakat, but the legal foundation lies in the agreement, not the will itself.

Case 2: The Will of Amal Haliem

Islamic Law of Distribution

Amal Haliem’s will directed her trustees to distribute her estate "strictly in accordance with the Islamic Law of distribution as outlined in the Quran in compliance with Sunni tradition." Amal had not remarried. She had five children - three daughters and two sons - and her parents were still alive at the time.

An issue arose as to whether the administrator had an obligation to pay Zakat. The Court held that Amal’s will did not authorise a Zakat payment as that construction would make the clause void for uncertainty. The Court held that if the administrator had not been informed of any claim for Zakat based on events before Amal’s death, and before distributing the estate, they could distribute the estate without setting aside any amount for Zakat or similar payments.

The Supreme Court of Victoria (Moore J) received expert evidence on Islamic succession law which was as follows:

• If the deceased was survived by a husband, a half share of the inheritance would go to the husband if there were no children or a one-quarter share if there were children.

• As to the deceased's children, if male, they would receive a portion equal to that of two females, and if only daughters, two or more, they would receive a two-thirds share.

• If the deceased was survived by parents, a one-sixth share of the inheritance would go to each if the deceased left children.

• If there were no children and the parents were the only heirs, the mother would receive a one-third share.

The Supreme Court of Victoria decided that, in accordance with the Islamic law of distribution as outlined in the Quran in compliance with Sunni tradition, the beneficiaries of Amal's estate and their entitlement on distribution were 12/126 for each of the Amal's three daughters; 24/126 for each of her two sons; and 21/126 for each of her parents.

This decision illustrates the importance of engaging experts to interpret and apply Islamic inheritance laws within the framework of Australian and New Zealand succession law.

Observations for Willmakers

Both cases highlight key considerations for those incorporating Shari’a influences into their wills:

1. Formal Compliance with the law

The courts stressed the importance of meeting legal requirements to ensure wills are valid and enforceable.

2. Avoiding Uncertainty

Ambiguities in religious or cultural references can render provisions void. Willmakers should provide detailed instructions and supporting evidence of their intent.

3. Balancing Religious Intent and Legal Risk

Unequal distributions (e.g., favouring sons over daughters) may expose estates to challenges under family provision laws. Will makers must consider providing adequately for all eligible beneficiaries to minimise disputes.

Judicial Advice

Executors and administrators can seek judicial advice to protect themselves from liability. However, such advice does not bind beneficiaries, leaving room for further challenges.

Practical Guidance

For observant Muslims, combining Shari’a principles with New Zealand succession laws requires meticulous planning. Here are some steps to consider:

• Consult Legal and Religious Experts: Collaborate with lawyers and Islamic scholars to ensure alignment between faith-based intentions and legal enforceability.

• Draft Clear and Specific Clauses: Avoid vague references to religious practices. For instance, specify amounts or conditions for Zakat payments or inheritance distributions.

• Engage Beneficiaries: Early discussions with beneficiaries can help align expectations and reduce the likelihood of disputes.

Conclusions

The cases of Ahmed Abou-Khalid and Amal Haliem reflect the challenges and opportunities of drafting wills that respect both Islamic and New Zealand legal traditions. By understanding the principles highlighted in these judgments, willmakers can better protect their wishes and avoid potential conflicts.

For personalised advice on creating a will that aligns with your values and legal obligations, contact Ross Holmes Virtual Lawyers Limited. We specialize in navigating complex legal and cultural intersections, ensuring your legacy is preserved.