February 2023

What happens where a will conflicts with Shari’a law? Part 2/3

Jo Summers Partner - Private Wealth & Tax

Jo Summers, a published author and expert on the application of Sharia law to succession in the context of international wills and estate planning, explains..

The first point to note is that it may not be entirely clear which laws apply to the will.

In England, will-writers are quite familiar and comfortable with the concept of preparing an English law worldwide will.

However, it may be less common to find a governing law clause in the will itself. Where the deceased is English domiciled and all his assets are in England, this will not be a problem and it can be presumed that English law applies to the will.

Nevertheless, where the deceased was not English domiciled, or the will is to govern assets overseas, it may be vital to have a governing law clause.

If not, the first question for the court to address may be to determine which law is meant to apply, before deciding whether that choice of law is valid.

The costs of that initial determination could be payable by the will-writer, if the court decides that omitting the governing law clause was negligent.

When a will conflicts with Shari’a law

Where a will does conflict 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. This will confirm the following:

  1. That the deceased was still domiciled in that country, not in England, at the date of death;
  2. That Shari’a law applies whenever lex domicilii is relevant; and
  3. The correct Shari’a heirs and their respective entitlements.

This can often be a surprise to the executors who are acting on the (incorrect) belief that the will that appointed them, governs the entire succession.

Clearly, English practitioners 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.

Case study

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. Nor did they know that Shari’a law prevents a man giving everything to his wife.

As a result, the English will was invalid in respect of all the client’s ‘moveable’ assets.

Not only this, further examination of his estate showed that the only real estate he owned (the family home) was held via an offshore company.

This structure had been put in place for tax reasons. However, the result was that the client owned moveable assets (the shares in the offshore company).

This meant that he did not own any immoveable assets, so therefore, Shari’a law applied to his whole estate.  The English law will was only valid in appointing executors, but the legacies in the will were not valid as they conflicted with Shari’a succession laws.

The net result for the gentleman in question was that his assets were not left as he would have wished, owing to a lack of knowledge of Shari’a law by his solicitors, and how it applied to his will.

If practitioners are in any doubt around which conflicting law takes priority, they should seek specialist Shari’a law advice.

Photo by The Dancing Rain on Unsplash


Jo Summers is a published author and expert in Sharia'a succession laws and can be found regularly commenting on personal tax matters for the wealthy in The Times & The Financial Times.

Jo Summers Partner - Private Wealth & Tax +44 (0) 20 7846 2370 jo.summers@jurit.com
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Please note this paper is intended to provide general information and knowledge about legal developments and topics which may be of interest to readers. It is not a comprehensive analysis of law nor does it provide specific legal advice. Advice on the specific circumstances of a matter should be sought.