Shari’a succession laws (Part 1 of 3)
The English practitioner needs to determine the law of the client’s domicile for succession purposes. An English Will may not be valid, to the extent it conflicts with the laws of the testator’s domicile. English succession laws may only apply in relation to English ‘real’ estate (immoveable property). For all other assets, including English situated ‘moveables’ (bank accounts, shares, the house contents), the laws of domicile may govern the succession.
More and more families in the UK have some connection to Shari’a law. For the practitioner, the impact of Shari’a law raises certain challenges. This series of articles looks at the Shari’a succession laws and how they can have an impact on English Will drafting and estate planning.
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Certificate of Succession
The first many practitioners may be aware of a Shari’a law issue is if the heirs obtain a certificate of succession. Particularly where the English Will conflicts with Shari’a law, the heirs will wish to confirm the disposition of the estate under the applicable foreign law.
Usually this is achieved by applying to the Shari’a court for a succession order or a certificate of succession, confirming:
- that the deceased was still domiciled in that country, not in England, at the date of his death;
- that Shari’a law applies whenever the law of domicile is relevant; and
- the correct Shari’a heirs and their respective entitlements.
It is worth adding that Shari’a law is not identical in every Muslim country. There are differences between Sunni and Shia laws, as well as different Sunni ‘schools’ of interpretation. The certificate of succession will clarify exactly which rules apply to the deceased’s estate.
Clearly the English practitioner will need a translation of any foreign certificate of succession, usually certified by a notary or lawyer, to understand the applicable Shari’a succession laws.
Take the following example:
A Kuwaiti domiciled man had been living in England for 30 years. He asked local solicitors to prepare a new Will for him. They drafted their standard English-law worldwide Will, giving everything to his wife if she survived him. They advised him this was the most tax efficient due to the inheritance tax spouse exemption and the transferability of the nil rate band.
The solicitors were unaware that Shari’a law applied, due to the client’s domicile. Equally they did not know that Shari’a law prevents a man giving everything to his wife if he also has children.
The English Will was invalid in respect of all the client’s moveable assets. Further examination of his estate showed that the only English real estate he owned (the family home) was held via an offshore company. This structure had been put in place for tax reasons. The result, however, was that the client owned moveable assets (the shares in the offshore company) and did not own any English immoveable assets. Shari’a law therefore applied to his whole estate and the conflicting English Will was invalid.
What are the Shari’a succession laws?
The Shari’a laws of succession, also known as mawarith, merit a book on their own (and the author has just co-written such a book!). As mentioned above, there are differences between the Sunni and Shia succession laws. Since around 90% of the world’s Muslims are Sunni, it is more likely UK practitioners will need to understand the Sunni succession laws.
The estate is applied in the following order:
- First the estate pays the expenses of enshrouding and burial of the deceased;
- Second, the estate must fulfil any monetary or religious debts the deceased may have had:
- From the remaining wealth, one third will be allocated on fulfilling the legacies of the deceased;
- The remaining 2/3rds will be distributed amongst the heirs as ascribed by the Shari’a.
The next article will look at the ‘freely disposable third’ in more detail.
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