Wills and sharia law

Trusts Discussion
1

Hi, my colleague is drafting a Will for an Islamic couple who are due to marry under Sharia law shortly. They have no intention to have a civil ceremony in this country at this present time.

We have a few questions arising from this.

Firstly, if they are only marrying under Sharia law, are they still considered as husband and wife for inheritance tax purposes under English law.

Secondly, will the Sharia marriage revoke any previous Will made. If so, preusmably, the Will be made in contemplation of the Sharia marriage?

Thirdly, would they refer to each other as ‘spouse’ in the Will or ‘partner’

Fourthly, should they be advised to have a civil ceremony too.

Thank you in advance for any input anyone can provide in relation to this.

2

  1. No

  2. No

3 Identifying an intended beneficiary in a Will is a matter of definition but it is courting trouble to describe someone using a generic term which has a strict meaning in the law applicable to the Will that the person in question is not. It would be dangerous to describe a cohabitant as spouse, husband or wife. Not fatal but not self-explanatory without evidence if challenged. Naming the individual cures all even if defined as “my spouse”.

4 A civil registration ceremony will confer the legal status on the parties (however the Will defines them!). Care is need concerning polygamous marriages. A marriage in English law is valid if only potentially polygamous but not if actually so; unless it is celebrated abroad by parties who are domiciled abroad and recognised as valid by local law so that English law will recognise its validity.See IHTM43003

Jack Harper

3

We prepare “Islamic Wills” regularly and occasionally come across this issue. My view is similar to @jack namely:

  1. No
  2. No
  3. Either name or define as “Partner”, definitely not as “Spouse” as that will just confuse everything.
  4. Can you advise anyone to have a civil ceremony or get married? Yes, but from what perspective… potential inheritance tax benefits v’s potential claims on a divorce. Why does a non-muslim couple choose not to marry, (or marry)? Various factors come into play, and similar considerations would apply to the Muslim couple… whether it relates to polygamy is a bit presumptuous.
4

And as with any other unfamiliar discipline you owe it to your client and yourself and your insurers to know where your professional expertise ends. I have read the Quran and many books on Islam but I never regarded myself as competent to advise on a Will for a Muslim client for whose faith was extremely important to them. Ideally one has a Muslim partner or professional contact like our very own Haroon.

Likewise no solicitor should advise exclusively on a Will for a non-domiciliary who has assets outside the jurisdiction unless they are competent in the relevant foreign legal systems.

Jack Harper

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