From the Lawyers’ Secular Society, a practice note issued by the Law Society.
This practice note provides guidance to lawyers specialising in areas such as wills, succession and inheritance, and in particular how to accommodate the wishes of clients who want to ensure their assets are distributed according to ‘sharia law principles’ on their death.
Uh oh.
But what this guidance does is legitimise discrimination towards women and “illegitimate children” – if that term still has any meaning in English law. In an astonishing few paragraphs the guidance states (at Section 3.6):
“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 death.
“This means you should amend or delete some standard will clauses. For example, you should consider excluding the provisions of s33 of the Wills Act 1837 because these operate to pass a gift to the children of a deceased ‘descendent’. Under Sharia rules, the children of a deceased heir have no entitlement, although they can benefit from the freely disposable third.
“Similarly, you should amend clauses which define the term ‘children’ or ‘issue’ to exclude those who are illegitimate or adopted.”
So the guidance by the Law Society instructs lawyers in how to draw up wills according to sharia, as if they were temporarily bound by sharia.
This raises serious questions about professional ethics and the role of the Law Society. The guidance seems not to recognise that there is a serious potential conflict between the Code of Conduct for solicitors and the guidance. Here is what the Code of Conduct – which all solicitors must abide by – says about equality and diversity (at Chapter 2):
“This chapter is about encouraging equality of opportunity and respect for diversity, and preventing unlawful discrimination, in your relationship with your clients and others. The requirements apply in relation to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
“Everyone needs to contribute to compliance with these requirements, for example by treating each other, and clients, fairly and with respect, by embedding such values in the workplace and by challenging inappropriate behaviour and processes. Your role in embedding these values will vary depending on your role.
“As a matter of general law you must comply with requirements set out in legislation – including the Equality Act 2010 – as well as the conduct duties contained in this chapter.”
The Code of Conduct makes it clear that solicitors cannot discriminate, yet this guidance is encouraging us to facilitate discrimination in advising Muslim clients on their wills.
That seems outrageous. It will be interesting to see if there is any pushback.
Before we freak out about “creeping Sharia” let’s ask this: does this code of conduct in practical terms change anything?
In the US you can’t have an enforceable contract, be it a will or anything else, that violates state and or federal law. It would at best be a losing battle in court; at worst it would be instantly voided (a contract for indentured servitude, or slavery, for instance).
Wills are a bit different. I can generally eave my money to whoever I want. I’m dead so if the heirs want to fight the will, they can do it and if the will has irregularities or they can demonstrate to a judge that it is unfair or violates some law, then the court has to come up with a plan or the parties have to settle but the upshot is that original will is just a piece of paper.
Asking a Muslim how they might want something divvied up according to Islamic law is fine; if that will violates ay national laws I would bet that the heirs that brought the suit would get what they wanted. (Or at least some settlement). In practical terms it wouldn’t mean anything if the heirs wanted to fight. Stuff like this doesn’t make civil law disappear.
Hasidic communities here I am sure have all kinds of rules of inheritance that are similar (in fact I know that Jewish law has all kinds of weird provisions) but as a practical matter it’s irrelevant. There has never been a case where if a Jewish law clearly violated a state law that the courts set aside state or federal law. (They might try workarounds, depending on the situation, but unlike the UK we have to make reasonable accommodations for religious faith, again depending on the situation you’re in).
Any UK lawyers out there? I don’t know how things work on your side of the pond in detail.
In the US, you can’t condition the use of property on race or religion in a will or trust, but I can’t think of a restriction on testamentary freedom that would prevent someone from disinheriting a child who had left the religion.
More broadly, lawyers have no ethical obligation to perform unethical tasks for clients and I hope most practitioners wouldn’t work for clients who asked them to engage in such discrimination.
A tangent here is the status of adopted children under Sharia, which, after poking around a little more, seems very problematic indeed.
It’s hard to imagine going to an adoption agency and saying, oh yes, I want to adopt, but I won’t let the child use my family name and he/she will be excluded from our will. How is this handled in Western countries?
@1
“In practical terms it wouldn’t mean anything if the heirs wanted to fight. Stuff like this doesn’t make civil law disappear.”
Well, perhaps it’s just some legal PR, ‘we tried, however….’ I hope so. What are the implications if ‘sharia wills’ become commonplace and the religious lobbyists start working on politicians?
I’m still worried about ‘creeping sharia’.
jesse, the problem is what federal or even state statutes bar sex discrimination in broad terms?
It is ironic, and perverse, that religion, a voluntary belief system gets voluminous protection, while the state of being born a woman affords a few crumbs like executive orders.
As for racism, most Western democracies are so frightened of its mere shadow they curtail free speech (thus betraying core principles of liberalism) just to put it on notice as the one prejudice to rule them all. Women, disabled people, and LGBT people suffer politically as a result.
“It’s hard to imagine going to an adoption agency and saying, oh yes, I want to adopt, but I won’t let the child use my family name and he/she will be excluded from our will. How is this handled in Western countries?”
Glad you asked. There was a recent case where the mentally disabled adopted Chinese daughter of a rich man who died was given away to another family by the rich man’s widow, who thus claimed that the daughter had no further claim on the rich man’s estate. However, he had specified in his will…here – read it for yourself:
A wealthy widow who adopted a Chinese girl and then decided to give her up for re-adoption ten years later has been ordered by a court to give her a portion of her $250million estate.
In 1996, John and Christine Svenningsen of Westchester, New York, adopted a baby girl, who they named Emily Fuqui Svenningsen, to add to their brood of four biological children.
Right before the adoption was finalized, they had another biological child and husband John was diagnosed with cancer.
According to court documents, on May 6, 1996, the Svenningsens signed an adoption agreement stating they would not abandon Emily or ‘transfer or have [her] re-adopted’, and that she would be deemed ‘a biological child’.
The agreement also stated that Emily had the right to inherit the estate of her adopted parents, who had established a pair of trusts for their children, as well as one meant solely for Emily, according to ABC.
In December 2004, seven years after her husband died from cancer, Mrs Svenningsen put Emily up for adoption and surrendered her to Spence-Chapin Services to Families and Children, an adoption agency in New York.
She said that Emily was a difficult child and was unable to bond with the family. But the adoptive family suggest that Christine may have wanted to terminate Emily’s interest in her husband’s estate.
…means “bitch”.
Westchester County Surrogate’s Court said that John Svenningsen meant to provide for all of his children, both biological and adopted.
Mrs Svenningsen and her five biological children appealed, but last week the court ruled in Emily’s favor.
‘It cannot be overly emphasized that Christine’s unilateral surrender of Emily for adoption more than eight years after the decedent and Christine adopted her was not foreseeable at the time the will, and the trust documents were drafted and executed by the decedent,’ Judge Leonard Austin wrote.
‘John Svenningsen expressed an intention to include his adopted child in the absence of any reason to believe that his status as the parent of Emily would be terminated by her subsequent adoption many years after his death.’ http://www.dailymail.co.uk/news/article-2279266/Multimillionaire-widow-ordered-portion-250m-estate-adopted-Chinese-daughter-gave-years.html
Now, granted, this is a case where the one adoptive parent died, leaving a will that specified what assets were to go to this specific child. The surviving adoptive parent tried to give the child away as one would a no-longer-wanted family pet, in order to keep the cash.
As far as the other details in your question, I have no idea 😀
I’m not. If anything the public debate over the issue will convince more muslims to question their faith. Humans have an inbuilt sense of fair play that sharia violates. Even where you can point to polls that show a majority of muslims want sharia I’d be willing to bet that most clicked ‘yes’ out of a sense of tribal identity and in fact have little or no idea what the provisions of that mediaeval script is.
“…the public debate over the issue will convince more muslims to question their faith”
Do mean in the liberal democratic West or in majority Muslim countries?
Even the so-called ‘moderate’ countries such as Indonesia and Turkey appear to be ‘islamising’, so, why do think Muslims in the West are likely to be more critical of their religion than their co-religionists in majority Muslim nations?
The most plausible explanation is that Muslims clicked “yes” because they actually agree, otherwise why would majority Muslim nations be such as they are, misogynistic, oppressive and often chaotic. The term ‘medieval’ is often incorrectly applied to modern Islamic culture, the late Middle Ages in Europe was a period of remarkable transformation and development culminating in the Renaissance.
The evidence contradicts your assertion.
My wife is a lawyer in the UK. She prepares wills all the time. Do you know what she wouldn’t do? She wouldn’t allow one partner to dictate the terms of a will against the interests of the other. If she felt that either partner’s views were not being taken into account, she’d point it out to both partners. She’d insist on seeing them both together (and separately if necessary) and make sure they both understood the legal implications of what was to be put in the will.
That’s her job. That’s her duty. That’s her responsibility. A responsibility she takes very seriously indeed.
The Law Society’s guidelines seem to be telling solicitors that they should ignore that responsibility when religion. If your client is Muslim – it seems to say – you should consider not doing the best you can to protect the interest of all parties. You should consider throwing the interests of women in relationships with Muslim men under the bus because, as I’ve already said, religion.
OK, so these are only guidelines. Do they make a practical difference? Regardless of what @jesse, #1 says, yeah, I think it does. If a solicitor were to ignore these guidelines and insist on protecting the rights of a woman despite her happening to be in a relationship with a Muslim man, that man could report the solicitor to the Law Society which could in principle remove their license to practice law.
Here’s what the Law Society should have put in their guidelines:
“Muslim clients might want to do X and here’s why. This means that you as a solicitor need to be extra vigilant and make sure that wives are properly protected. Here are some ways you can do that.”
If, all things considered, a solicitor’s clients want to do foolish things, the solicitor should make them happen. But the solicitor needs to make damn fucking sure that everyone’s interests are properly taken into account regardless of any other considerations.
Fun fact: I was once attacked by a lawyer at the Law Society Christmas dinner. My attacker later became a partner in my wife’s firm and was later sacked for various sexual and financial improprieties. This lawyering is a lot more exciting than it seems.
You know, this is really pissing me off, now. How many times do we have to roll our eyes at the ‘argument’ that “this is just how things are”?
The Law society could have done what it’s there to do: regulate the activities of lawyers so that people are properly protected. They decided instead to do the exact opposite. They decided to tell lawyers how to do their jobs wrong so that people who are already hurt get hurt more. We don’t have to stand for that.
Bad things happen. Should we shrug our shoulders and allow horrible things to keep happening generation after generation or should we try to make things better? Better immediately. Not in the abstract. In fact. We’ve seen the argument that because things are broken they for some reason can’t be fixed a lot, recently, haven’t we? Women have to dress and act in a certain way otherwise it’s their fault if they get raped. Women have to be bossy at work if they want to succeed, but if they do they’ll be called bitches. We don’t have to shrug at the status quo. We can change it. If we’re not trying to change it then what the fuck *are* we doing?
The idea that nothing has changed when a body that regulates – to some extent – the entire legal profession in an entire nation when they produce guidelines that endorse and potentially enforce bigotry is just plain blithering.
Let’s not be like that. When women say they found it hard to get into well-paid tech positions and then were marginalised, let’s not blandly explain that this is how the world works and they ought to have known that before spending all that time and money getting qualified. Let’s raise whatever ABSOLUTE FUCKING SHIT about it that we can. Fuck you, status quo, and fuck anyone who cites it as an excuse to allow people to be treated as less.
@latsot — That’s the thing, tho. If your wife has a set of ethical obligations that bind (legally) everyone in her profession then it seems to me the same issue applies in the UK as in the US — you can’t write up a contract that violates the law, and while parents / husbands / wives can do all kinds of things with inheritance, the fact remains that if I were the son or daughter of a Muslim, or the wife, and that person tried to disinherit me, well, I could fight that and probably end up winning.
Again I ask: would these guidelines mean an actual disinheriting of some people that would not happen otherwise? Especially if the person who felt the will was unfair hired their own lawyer? What of Jewish communities in Britain? (I see no mention of them in these contexts, and I can tell you there are all sorts of terrible rules of inheritance there). As I understand it in the UK it was perfectly possible to disinherit women in any case, until recently.
Maybe it’s difference between the US and UK legal systems, too. In the US you get a lot of leeway in certain matters, but there’s a bit of a red line when it comes to state and federal law. I can leave all my money to the Catholic Church but I can’t say that only Catholics can inherit my money. Is it different in the UK?
Katharine Woo– There are very clear federal and state statutes barring discrimination in many walks of life, starting with the Civil Rights Act of 1964. And as to inheritance and the like the situation is simple: you can do pretty much whatever you want provided that it conforms with state and federal law.
A religion (like some peoples from New Guinea or the Yanomamo) that required that the family eat some of the remains of the recently deceased would have to jump through several hoops to make that happen — and even then since cannibalism of any sort runs into legal problems they can’t just do it and say they are religious and have to. FGM, another example — it is illegal in the US. No exceptions. (There’s actually some interesting history here about the practice in the secular West, for “non-religious” reasons, but that’s another discussion).
You’ve heard of (for example) Title IX? We think of it in terms of sports but it actually covers a lot more than that. In most jurisdictions in the US (the exact rules vary state to state) you can’t fire someone for being pregnant. There’s a whole history of airline flight attendants fighting for gender equity in their jobs which had really far reaching implications and effects — ever wonder why when you get a job at American Airlines they can’t mess with you the way Singapore Air or KAL does? (mandating weight for instance). It’s not just the “crumbs of executive orders.” There’s a patchwork of anti-discrimination laws out there that apply in many different situations. No, it isn’t as comprehensive as we would like, but there’s a lot of ground to fight on even so. That’s why sex-discrimination suits happen, and why people win them. (BofA/Merrill Lynch lost a huge one a while back, for example, some $39 million).
There has been a number of high-profile inheritance disputes here in NYC (mostly around the Astor family, yes, those Astors) and believe me, if you want to fight a will you can, and AFAIK there isn’t some magical religious exemption.
(The Doris Duke case is worth looking at here; the will said that anyone who challenged it would get nothing. Um, no, you can’t do that. The litigation went on for some time, and this wasn’t even a religious case).
You’re missing the point. The effective governing body for legal services in the UK has issued guidelines that might result in some horrible things. For example, it seems plausible that a man might complain to the law society that his wife was advised by a solicitor to not comply with a will, against the society’s own guidelines. The solicitor might have their license revoked because they failed to comply with the law society’s guidelines.
So what to do? Advise the woman on her rights under UK law or advise her under that law as the Law Society would have it? The Law Society doesn’t get to interpret the law, but it sets a standard that lawyers might have to live by. Sure, if it comes to the courts, we’d hope that common sense will prevail. But….
But… think, for a moment, about who you are asking to fight. Women who are already being told that they have few or no rights. Women who are already convinced that they have no legal recourse when bad things are done to them. Women who have been taught from birth that whatever men tell them to do is what they should do.
Can they legally fight decisions? Sure. Can they practically do it? Do you think so?
Somebody eventually will and hopefully she’ll win, but it’s a fuckload to ask, especially of people who don’t know what options are available to them.
So I still say that solicitors should tell all parties what options are available to them, regardless of religion or anything fucking else. I still say that solicitors should go out of their way to make the options absolutely certain if they suspect that one party hasn’t had their say. I still say that the job of the law society is to help lawyers understand how to protect the people that need protecting rather than tell them how to fuck certain people over because it happens to be legal and politically expedient to do so.
Law has to be at least partly about protecting people who can’t easily protect themselves. A theoretical notion that oppressed people can always get justice is beyond obtuse, it is wilfully ignorant. History tells us that oppressed people are oppressed. Hence the term. The same opportunities are not always open to all and Sharia thinking is a shining, bloated, pulsating example.
The law society should be telling its members to take special care of people who are at risk of being not represented. I can’t imagine why this could possibly be controversial.
@latsot– it sounds to me then what you are describing is a slightly different problem — that the Law Society is issuing guidelines that are somewhat self-contradictory.
No, I don’t believe that oppressed people always get justice. But if a contract under the law isn’t valid it isn’t valid. You could have an invalid will in the US and you know what happens if you try to get the money in it? Nothing. You get zero, usually, until the probate courts work their magic after however many months or even years.
So if you have a Muslim man who wants to put in his will horrible things, and they violate the law full stop, then is every one of the authorities involved in the process – -the banks, the local probate courts (I don’t know how it works in the UK, that’s why I ask) — all those people involved, they just blindly follow it? When you get a will in the UK, what are the obligations of the executor? I’m really asking here, and that’s why it seemed to me reading this that the real-world effects might be minimal.
And again I ask, what of other minority religious communities in the UK? I lived there for a while, I know you have Orthodox Jewish people there 🙂 . How does that get worked out? Why would it be any different for Muslim populations?
I mean, I went through this process recently. Getting a will disbursed takes a while, and you have to have half a dozen people sign off. Nine out of ten times it’s a formality, but then there’s the tenth…
The problems you describe with social pressure are very real and I understand that, but is this really going to make things any worse than they already are? A Muslim who wanted to put all sorts of horrible things in his will is going to do that anyway, right? The solicitor’s job at that point is to make sure the will doesn’t run afoul of the law, no? (Again tell me if I am wrong). You can’t just have X provision that violates a statute, right? The solicitor, it seems to me, has to say, “OK, Sharia law says X, and we can work a bit of it in if it makes you happy, but I can’t blatantly violate the law in writing your will, so tough luck on that.”
The will would be (in the US anyway) voided, or certainly some provisions would be. It varies a lot from state to state at that point.
I mean, horrible things can already happen, you know? And full civil law (as described in the Law Society missive) still applies. Am I missing something here about the way things work in the UK? I must be.
(There may also be a real failure on my part to understand terminology, I realize that a solicitor and lawyer do somewhat different things).
My English law is rusty but as far as I can recollect there is a statutory right of a spouse (whether divorced or not), a non-married partner, a child (whether or not “legitimate”) or a person to whom the deceased was in loco parentis, to apply for provision out of an estate on the grounds that “reasonable” provision should have been made for them. (Inheritance (Provision for Family and Dependants) Act 1975.) So you’d have to go to court, but the duty of an English-domiciled person to provide is at least recognised.
Interestingly, in Ireland, the Succession Act 1965 gives a surviving spouse a minimum share of one third of the estate (one half if there are no children), and first dibs on the family home in full or partial satisfaction of that. Children are entitled to have “just and proper provision” made them, though again, they’d have to go to court to enforce it.
As regards the ethics of the Law Soc’s practice note, my strongest reservation would be if it appeared to support a contravention of statutory rights, e.g. the dependant’s right under the 1975 Act to “reasonable” provision. In general the situation with a Muslim nutter for a client would be no different from acting for any awkward bastard who wants to cut out the black sheep of the family: you have to advise them what the law permits (which is only a right to apply to court, not a legal duty to make the provision, as in Ireland). Thereafter, you have to accept that they are the client and accommodate their [legal] wishes. Not to do that would be unethical.
I don’t agree with the argument that the practice note creates an unfair inequality between Muslim and non-Muslim dependants. It isn’t clear to me that the lawyer owes them an enforceable duty, and in any case (as I’ve said) the sum total of their rights in English law is to apply to court. You may wish that the law made stronger provision for them (and I’d support that – Irish law is much more progressive that way) but there is not difference in their status because of their religion.