The Omari v Omari case has put the spotlight on Islamic Wills and estate disputes in Australia, writes Adelaide Muslim lawyer Belal Moraby.

In recent weeks controversy has been looming over the relevance of Islamic Wills in Australia, particularly following the recent case of Omari v Omari.

Under Australian law testators have the discretion to choose who receives their assets.  It is not uncommon to see a testator leave the majority of their estate to a particular son or daughter at the exclusion of another.  In rural areas, farms are often left to the eldest son while daughters may inherit a small sum of money or items of jewelry.  Section 6 of The Inheritance (Family Provision) Act 1972 gives standing to various people, including spouse and children of the deceased, to claim against the estate if the claimant has been left without adequate provision.  However, more often than not family members and beneficiaries will just respect the intentions of the deceased.

The variety of Wills that people leave behind is a reflection on the true flexibility of our laws regarding inheritance.  In general terms, Courts should not interfere with testamentary dispositions unless the power to do so is accorded by Parliament.

Muslim Australians too wish to choose who receives their assets. The only difference is that practising Muslims adhere to the Quran, which contains rules about who inherits from an estate. The rules provide that there can be no exclusion of immediate family members.  Everyone receives a share, including spouse, parents, sons and daughters. The rationale behind this is to protect and upkeep a strong family unit.

So how does it work?  A mother and father will receive one sixth of the estate. A wife will receive an eighth share if there are children or a quarter if there are none.  A husband will receive a quarter share if there are children or a half share if there are no children. Sons and daughters receive equal shares in their class, but a daughter receives a half-share of a son.

So why does the wife receive less than the husband and daughters receive half-shares of sons?  It hardly sounds fair does it? Let’s suppose a friend of yours asks you to choose between two offers. Firstly, he offers to give you $50 on condition that you help him as well as his friends whenever they need money, upon request.  In the alternative, he offers to give you $25 with no strings attached.  Which would you choose?

In Islam, fathers, husbands, and brothers are responsible for their mothers, wives, sisters and daughters. If a particular mother, wife, sister or daughter needs assistance, whether financial or otherwise, the male family member is obligated to assist. No questions asked.  This is what bonds Muslim families together and creates a loving and strong family unit.

Getting back to the law, all family members receive a significant share of the estate. No one is excluded. The shares might not be equal, but are typically significant and adequate to provide for their wellbeing. Therefore testamentary provisions made in accordance with such principles cannot be said to be inconsistent with Australian law.

In the articles recently published about the case of Omari v Omari, there is reference to the notion that “one boy is equal to two girls”. There is no such principle is Islam. Men and women are equal in the eyes of God. Not only are women equal but they are highly revered and loved in Islam. This is explicitly stated in the Quran and supported by Hadith (sayings of the Holy Prophet Muhammed).

A companion of the Prophet Muhammad came to the prophet and asked, “who amongst his near one has the greatest right over him?”  The Prophet answered, “your mother”. The man then asked, “who after that?” The Prophet responded, “your mother”.  The man asked a third time and the prophet replied again; “your mother”.  When the man again asked “Who after that?” the Prophet said “Your father”.

Unfortunately, in the hype and overtures concerning Omari v Omari, it appears that Islamic values have been distorted into downgrading the status of women and drawing close inspection of Islamic rules concerning inheritance.  When considering the actual decision of the Supreme Court of the ACT it is evident that the deceased suffered from well established dementia and therefore it was held that she lacked testamentary capacity.  Even though she may have wanted her estate to be administered in accordance with Islamic rules there was little choice for the Supreme Court but to make a declaration that she died intestate. Thus, there is no abrogation of the principles enshrined in our Citizenship pledge, nor is there any damage to our Australian values. The result is no more than an elderly lady with serious health concerns being put to rest, whilst her estate is to be administered by a person appointed by the Court.

Author: Belal Moraby

Belal is a South Australian Muslim lawyer qualified to take instructions for Islamic Wills and Estate Planning. For further information or assistance contact your nearest TGB office.

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