Fatma is a loving and devout daughter to her mum. However, under her brother’s interpretation of Muslim law, one man is worth two women. Fatma’s brothers constructed a Will for their mum to sign whereby they got twice as much as their sister.
The Supreme Court said that Mum was so unwell at the time of signing her Will that she could not write – she signed the Will using her thumbprint. Mum’s doctor said she had “severe cognitive impairment” and had “difficulty managing her affairs.”1 Mum had a history of Alzheimer’s disease and advanced dementia”.
Fatma’s mum dies
Recently in Omari v Omari  ACTCA 16, the Supreme Court handed down its decision. In the 2014 case,2 all parties had applied to have their costs covered by the mother’s estate; however, only Fatma’s costs were covered.
The 2014 decision was appealed in May 2016, in which the appellants fought to have their costs paid out of their mother’s estate. They appealed on the grounds that their mother understood the effects of her Will on the basis that she was
“a committed lifelong member of the Islamic faith [and] would have adhered to the faith in disposing of her estate…”.3
The Court noted that this was beside the point as it did not go to the mother’s testamentary capacity.4
The appellant also sought to rely on further evidence. The Court considered a number of cases with respect to the admission of evidence in the course of appeal.5 The conclusion was that “it would be contrary to the administration of justice for the appellants to be permitted to rely on further evidence about the honesty of their beliefs” given the circumstances.6
The appellants claimed that because Fatma participated in the Islamic burial rights undertaken for her mother, there was acceptance of the “whole Will in which those rights were provided for”. This was without merit for two reasons: firstly, Fatma having participated in the burial rite could not have rendered the Will valid as her mother did not have testamentary capacity. Secondly,
“there is no Australian law to the effect that a deceased’s body must be dealt with inconsistently with Islamic burial rites unless those rites are provided for by a valid Will”.7
Fatma’s mum was of unsound mind and couldn’t make a Will
However, the Court did not indicate that there was any problem with the Will’s adherence to the Muslim faith. Rather, the determination of the Court was whether the mother had the mental fortitude to sign the Will with the full understanding of its ramifications: “This is so notwithstanding that if it had not been for her dementia, she might well have decided to make a Will in the same or similar terms”.8
It may be the case that the Court had no issue with one man being worth two women “I accept that [Fatma’s brothers] generally believed it was their mother’s duty under Islam to make a Will generally leaving full shares to her sons and half shares to her daughter”9 …… “I accept the evidence of Imam Konda as to the expectations within the Muslim faith as to the disposition of an estate by Will where the testator has children”. Earlier, Imam told the Court
“one boy is equal to two girls”.10 Rather, the Court wanted to know whether mum had the mental fortitude to sign the Will, with full understanding: “if it had not been for her dementia, she might well have decided to make a Will in the same or similar terms”.11
You must be of sound mind to make a Will
While the Will passed to Fatma’s brothers twice the amount of money that was passed to Fatma (in accordance with Muslim faith), it was contested by Fatma that her mother was not of sound mind when signing the document. The Court said Fatma had the burden of proving that in accordance with the principles in Banks v Goodfellow (1870) 5 QB 549, the mother had the requisite capacity to sign the document. For years, the Goodfellow case has set the standard for testamentary capacity.
When signing the Will, expert evidence indicated that the mother “would not have had any understanding of the documents she was signing by that time”.12 In borrowing the words of Cockburn CJ in the Goodfellow case, the Court drew the conclusion that the mother lacked the requisite capacity to understand the effects of her signing the Will.
The Court declared the Will invalid.
I, personally, find it offensive that a woman is treated as half a man. I have spoken to my learned Muslim friends. They have told me that this is a misinterpretation of the Quran.
In fact, under Sharia law, a daughter may get more than a son
Inheritance is defined as the property of a dead person which is transferred to their heirs under the laws of inheritance: mirath. Or, or by bequest through a Will: wasiyyah.
Sharia law stipulates 3 main factors where a woman inherits more or less than a man. But this is based on the size of a person’s inheritance, not on gender:
1. Degree of closeness
The degree of closeness of kinship or relationship with the dead person. Sheikh Ali Gomaa, Responding from the Tradition: One Hundred Contemporary Fatwas by the Grand Mufti of Egypt, Fons Vitae, Louisville, KY, USA, 2011, p.46. For example, a daughter whose mother dies inherits more from the deceased than her father who is the husband of the deceased. This is because the daughter is a closer relative (blood relation) than the father (who has a marital relationship) with the deceased.
2. Degree of separation
The generation to which the heirs belong. For example, grandchildren (such as a granddaughter) usually receive more from their deceased parent than their grandparents (such as a grandfather) will. This is because the grandchildren are more likely to face a longer future of financial responsibilities, and are responsible for the elderly. Similarly, such a daughter inherits more from her deceased father than any inheriting uncle(s).
3. Financial obligation
The financial responsibility upon a particular beneficiary. When the beneficiaries are equal above, their shares of inheritance are affected by this third factor. The Qur’an (4:4, 4:34, etc.) makes men financially responsible for women. This third factor gives those men who are responsible for women more of the inheritance. This is to compensate for the extra financial burden of responsibility for safety, protection and sustenance placed upon them. In this instance, a brother may inherit twice as much as his sister. What if the male (e.g. a half-brother) is not financially responsible for his half-sister? This is from a different father but same mother as in Qur’an 4: 12? The two of them get equal shares of inheritance (either a sixth or a third each).
However, in Australia, a Will and the laws of intestacy override Sharia law. If parents want to leave everything to the local cat haven, then that is their right. Of course, it is then the right of a child to challenge the Will.
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Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
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1 Omari v Omari  ACTCA 16 . 2 Omari v Omari  ACTSC 202. 3 Omari v Omari  ACTCA 16 . 4 Omari v Omari  ACTCA 16 . 5 Moon v Whitehead (2015) 10 ACTLR 309 –; Hillier v R (2008) 1 ACTLR 235 –. 6 Omari v Omari  ACTCA 16 . 7 Omari v Omari  ACTCA 16 . 8 Omari v Omari  ACTSC 33 . 9 Omari v Omari  ACTSC 33 . 10 Omari v Omari  ACTSC 33 . 11 Omari v Omari  ACTSC 33 . 12 Omari v Omari  ACTSC 33 . This was written by Adjunct Professor, Dr Brett Davies and law intern Ms Somaya Sheikh B.Acc, Murdoch University