Re Estate of Ahmed Abou-Khalid

[2024] NSWSC 253

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253

Hearing dates:

5 February 2024 together with written submissions

Decision date:

18 March 2024

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

Subject to allowing the administrator an opportunity to consider these reasons for judgment and the possibility that further directions may be necessary or appropriate in administration of the deceased’s estate:

1. Upon an assumption that she has received at the time of distribution of estate assets no notice of a claim for Zakat based on a cause of action accrued at or before the death of the deceased, ORDER that the administrator would be justified in distributing the estate of the deceased on the basis that no allowance is to be made for a payment of, or in the nature of, Zakat.

2. ORDER that the administrator’s costs of and incidental to these proceedings be paid out of the estate of the deceased on the indemnity basis.

Catchwords:

SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 — Proper construction and management of an unarticulated testamentary direction to pay “Zakat”

SUCCESSION — Construction — Islamic Wills —Sharia law and its interaction with Australian Succession law

CHURCHES AND RELIGIOUS ASSOCIATIONS — Conceptualising Sharia law in the context of the general law governing a religious community as a voluntary association

Legislation Cited:

Australian Courts Act 1828 Imp

Church Act 1836 (7 Wm IV No 3)

New South Wales Act 1823 Imp

Probate Act 1890 NSW

Short Titles Act 1896 Eng

Statute of Charitable Uses 1601, 43 Eliz I. c. 4

Succession Act 2006 NSW

Third Charter of Justice under the authority of an Imperial Statute 4 Geo. IV c. 96

Tithe Act 1836 (6 & 7 Will 4. c. 71)

Trustee Act 1925 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

Andrew v Andrew (2012) 81 NSWLR 656

Attorney General Ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 98 ALR 327; 95 FLR 392

Banks v Goodfellow (1870) LR 5 QB 549

Bates v Messner (1967) 67 SR (NSW) 187

Bishop of Natal v Gladstone (1863) LR 3 Eq 1

Bosch v Perpetual Trustee Co Limited [1938] AC 463

Bryson v Bryant (1992) 29 NSWLR 188

Camenzuli v Morrison [2022] NSWCA 51

Cameron v Hogan (1934) 51 CLR 358

Commissioners for Special Purposes of Income Tax v Pensel [1891] AC 531

Dr Warren’s Case (1835) Grindrod’s Compendium, 8th ed 371

Estate Kouvakis [2014] NSWSC 786

Estate Polykarpou; Re a charity [2016] NSWSC 409

Estate Wight; Wight v Robinson [2013] NSWSC 1229

Ex parte King (1861) 2 Legge 1307

Forbes v Eden (1867) LR 1 Sc & Div 568

Goodman v Windeyer (1980) 144 CLR 490

Gregory v Hudson (1997 41 NSWLR 573, affirmed at (1998) 45 NSWLR 300

Hepworth v Hepworth (1963) 110 CLR 309

Hill v Van Erp (1997) 188 CLR 159

In the Goods of William Loveday [1900] P 154

Long v Bishop of Cape town (1863) 1 Moo NS 411; 15 ER 756

Macqueen v Frackelton (1909) 8 CLR 673

Nicol v Chant (1909) 7 CLR 569

Omari v Omari [2014] ACTSC 202; (and on appeal) [2016] ACTCA 16; 14 ASTLR 23

Osborne v Smith (1960) 105 CLR 153

Re Allen [1922] NZLR 218

Re Benjamin [1902] 1 Ch 723

Re Estate Wilson, deceased [2017] NSWSC 1; 93 NSWLR 119

Riccardi v Riccardi [2013] NSWSC 1655; (2013) 11 ASTLR 198

Scales Case (1962) 17 CLR 9

Scandrett v Dowling (1992) 27 NSWLR 483

Sgro v Thomson [2017] NSWCA 326

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253

Steinmetz v Shannon (2019) 99 NSWLR 687

Tatham v Huxtable (1950) 81 CLR 639

Towns v Wentworth (1858) 11 Moo PCC 526; 14 ER 794, 800

Vigolo v Bostin (2005) 221 CLR 191

Wylde v Attorney-General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224

Texts Cited:

ALRC, Matrimonial Property Report No 39 (1987)

An Introduction to Shi’i Islam (Yale University Press, 1987)

Asmi Wood, “Splitting Heirs - Succession between Two Worlds: Australian Law and the Sharia”, in Abdullah Saeed and Helen McCue (eds), Family Law and Australian Muslim Women (Melbourne University Press, 2013)

Australian Dictionary of Biography (ADB) Volume 1

Christopher M Blanchard, Islam: Sunnis and Shi’ites in CD Malbouisson (Ed), Focus on Islamic Issues (Nova Publishers, 2007)

AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson’s Legal Theory and Legal History: Essays on the Common Law (Hambleton Press, London, 1987)

Concise Australian Legal Dictionary (6th ed, 2021 LexisNexis, Australia)

Brooke Thompson, “Family Provision and Islamic Wills: Preserving the Testator’s Wishes Through Testamentary Arbitration?” (2023) 46 UNSW Law Journal 2005

Brooke Thompson, “Navigating Dual Legal Systems: Islamic Inheritance Law in Australia’s Secular Legal Framework” (2022) 41 University of Queensland Law Journal 89

Elizabeth Butler-Sloss and Mark Hill, “Family Law: Current Conflicts and Their Resolution”, published as Chapter 7 of RG Jones (ed) Islam and English Law: Rights, Responsibilities, and the Place of Shari’a (Cambridge University Press, 2013)

G E Dal Pont, Law of Succession (LexisNexis, Australia, 3rd edition, 2021

Ghena Kayem, Islamic Family Law in Australia: To Recognise or Not to Recognise (Melbourne University Press, 2014)

Halsbury’s The Laws of England (subtitled “A Complete Statement of the Whole of Law of England” containing in Volume 11 of the first edition, 1910)

Hamid Khan, The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries (Oxford University Press, 3rd edition, 2007

Jamila Hussain, Islam: Its Law and Society (Federation Press, Sydney, 3rd edition, 2011)

Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020)

JD Heydon and MJ Leeming (ed), Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, Australia, 8th ed, 2016)

John M. Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974)

Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Every Day Experiences in Mamluk Egypt (Oxford University Press 2011)

MB Voyce, in “The Impact of the Testator’s Family Maintenance Legislation as Law and Ideology on the Family Farm” (1993) 7 Australian Journal of Family Law 191

Malcolm Voyce, “Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?” (2018) 12 Contemporary Islam 251

Mona Atia, Building a House in Heaven: Pious Neoliberalism and Islamic Charity in Egypt (University of Minnesota Press, Minneapolis, 2013)

Moojan Momen, An Introduction to Shi’i Islam (Yale University Press, 1987)

Prue Vines, “Cultural Negotiation of Inheritance Law in Australia” in Kit Barker, Kate Faulkner and Andrew Fell FE.L (Eds), Life and Death in Private Law (Hart Publishing, Oxford, forthcoming, 2024)

Peter Young AO, Clyde Croft KC and Megan Smith, On Equity (Lawbook Co, Sydney, 2009)

Richard Burn, Ecclesiastical Law (H Woodfall and W Strahan, 1763)

Rosalind Atherton (Croucher) in D Kirkby (Ed), Sex, Power and Justice: Historical Perspective of Law in Australia (Oxford University Press, Melbourne, 1995)

Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (6th ed, 2024 LexisNexis, Australia)

Scott Edgar, “The Five Pillars of Islam in the Hadith” (2002) 2 Studia Antique 71, 73

Sir William Blackstone, Commentaries on the Laws of England (9th “received” edition, London, 1783)

The Ecclesiastical Law of the Church of England (Sweet and Maxwell, London)

The Intersection of the Australian Law and the Islamic Faith (Judicial Commission of New South Wales, 2015 and updated 2021, Governor of NSW, Her Excellency the Hon Margaret Beazley AC KC)

The Oxford Dictionary of the Christian Church (4th edition, Oxford University Press, 2022, edited by Andrew Louth)

Timur Kuran, Islam and Mammon: The Economic Predicaments of Islamism (Princeton University Press, 2010)

Toby Matthiesen, The Caliph and the Imam: The making of Sunnism and Shiism (Oxford University Press, 2023)

Wael B Hallaq, Shari’a: Theory, Practice, Transformations (Cambridge University Press, 2009)

Category:

Principal judgment

Parties:

Plaintiff: Tamara Jayne Goodwin in her capacity as administrator of the estate of the Late Ahmed Abou-Khalid

Representation:

Counsel:
Plaintiff: H Morrison and D Yazdani

Solicitors:
Plaintiff: Glass Goodwin

File Number(s):

2023/00348425

JUDGMENT

INTRODUCTION

1. This judgment calls for consideration of the proper construction, and operation, of a provision in a will, ostensibly prepared in accordance with “Sharia law” relating to “Zakat”, a distinctly Islamic form of charitable donation.

2. That, in turn, requires consideration of the nature of “Sharia law” and points of intersection between Sharia law and the general law of succession applicable to a man who died domiciled in New South Wales, leaving property in the State (and only in the State) under the administration of a legal personal representative (an independent solicitor, not related to the deceased) to whom letters of administration with the will annexed were granted by the Court upon an exercise of its probate jurisdiction when, for one reason or another, the executors named in the will (personal friends of the deceased) were unavailable to administer the estate.

3. The summons filed by the administrator relies upon the jurisdiction of the Court under rule 54.3 of the Uniform Civil Procedure Rules 2005 NSW to make orders for the partial administration of an estate and under section 63 of the Trustee Act 1925 NSW to provide judicial advice.

4. These two heads of jurisdiction are complimentary. Each provides a vehicle for a determination of the question ultimately stated for the Court’s attention in the Statement of Facts filed in support of the summons: Whether the administrator would be justified in distributing the whole of the estate of the deceased without applying any part of the estate towards payment of Zakat in accordance with a direction in the will of the deceased.

5. These reasons for judgment explain why, in the circumstances of this case, a management order should be made for the protection of the administrator and for the information of the deceased’s beneficiaries, at whose instigation the administrator has applied to the Court for guidance.

6. In an insightful paper entitled “The Intersection of the Australian Law and the Islamic Faith”, first published in 2015 and updated on the website of the Judicial Commission of New South Wales in 2021, the Governor of NSW, Her Excellency the Honourable Margaret Beazley AC KC, cautioned individuals who arrange their affairs in accordance with religious or cultural practices of a need to ensure that the formal requirements of Australian law are met in order to protect their interests.

7. Her Excellency examined a selection of cases that served as a foundation for the following observations:

“The separation of Church and State is as fundamental to the Australian legal system as is the rule of law itself. That said, religion often underlies the way in which various sections of our community function, both within that particular grouping and more broadly. While religion is undoubtedly intended to pave the way to Heaven for us mortal beings, it is often central to a person’s morals, behaviours and sense of identity on this earth. Importantly for the law, religion may order the ways in which a person organises his or her worldly affairs. …

[Individuals] who arrange their affairs in accordance with religious or cultural practices cannot afford to ignore Australian civil law in doing so. It is up to each individual or organisation to take responsibility for ensuring that the formal requirements of the law are met in order to protect their legitimate interests. …

Australia is a multicultural, multi-faith society and a significant proportion of the population organises their affairs in accordance with cultural practices or principles derived from their religion. When such principles assume relevance in matters that come before the courts, courts will only interfere where there is some inconsistency with Australian legal principle. To put it another way, legal documents are not held invalid because they are drafted in accordance with the tenets of a religion, but because of legal invalidity. …

[The courts are willing] to engage with cultural and religious practices where they assume importance as facts relevant to the determination of the particular case. … [Despite] a perception that Islam and the Australian law are incompatible, this is not borne out by the case law. Problems will arise where no attempt is made to ensure that there is compatibility. That is different from saying that the laws cannot operate harmoniously because the ‘rules’ differ. … [When] individuals choose to organise their affairs in accordance with religious principles, rather than ignoring the Australian law, they should ensure that their interests are also adequately protected in accordance with Australian law …”

THE NATURE OF THE PROCEEDINGS

8. By a Summons filed on 2 November 2023 the administrator of a deceased estate seeks in these proceedings (as the plaintiff on an ex parte application but on notice to the deceased’s beneficiaries) the guidance of the Court about the proper construction and management of an unarticulated testamentary direction to pay “Zakat payments”.

9. The Summons is supported by a formal Statement of Facts (required by rules of court); affidavit evidence; written submissions of counsel, incorporating a formal expression of their opinion on questions raised by the Summons; and research materials located by the administrator and her legal representatives. I acknowledge the assistance I have been given by each of the administrator, her solicitors and counsel.

10. My treatment of the subject matter of these proceedings is directed to a legal analysis, upon the particular facts of a particular case, and evidence presented in support of the summons. I have endeavoured to give effect to the general law governing the administration of a deceased estate in NSW, sitting in the “armchair” of the deceased (as may be required to see the world through his eyes), conscious of the testamentary freedom, limited by the Court’s family provision jurisdiction as it may be, recognised as enjoyed by an individual living, and dying, in community.

11. I am obliged to consider the nature of “Sharia law” and “Zakat” under Australian law because of the language of the deceased’s will; extrinsic evidence that confirms an intention on his part, implicit in the will, to give effect to his understanding of Sharia law; and a submission made on behalf of the administrator that the testamentary provision in the deceased’s will authorising and directing the administrator, as the deceased’s legal personal representative, “to pay … Zakat payments” is void for uncertainty.

12. Whether that provision of the deceased’s will is invalid for uncertainty depends on what the expression “Zakat payments” means on a proper construction of the will taking into account the meaning and operation of “Sharia law” in the deceased’s Islamic community.

13. Importance may attach to identification of a testator’s particular Islamic community because of the diversity of communities within the global or national community of persons who share an Islamic faith. Australian Muslims represent an exemplar of this because of a variety of cultural traditions they each enjoy from their family’s particular place of origin within a world-wide setting. Differences between Sunnism and Shi’ism are perhaps the most prominent example of differences within a common cause; but, in Australia, Islamic communities are free, within the general community of Australia, to gather together, to coalesce and to stand apart as they may be moved to do. The general law endeavours to respect the individual living, and dying, in his or her community.

14. If the deceased’s will means that the administrator is authorised and directed to make “Zakat payments” unconnected with a commitment made by the deceased during his lifetime and unenforceable against his estate at law or in equity, then a finding of uncertainty must be on the cards. That said, nothing explicit in the will supports a finding that the deceased intended to confer on his legal personal representative the function of making unconstrained discretionary “payments” of an unspecified character and value to unidentified parties for a particular purpose or purposes of an indefinite nature.

15. On the other hand, if the deceased’s will, upon its proper construction, intends that the “Zakat payments” payable by his legal personal representative are those enforceable against his estate at law or in equity, by reason of a commitment made by him during his lifetime, then the will is not in any sense void for uncertainty because an obligation to make “Zakat payments” of that nature is not different in kind from an obligation on the legal personal representative to pay “debts” as directed in the same provision of the will that requires the legal personal representative to consider making “Zakat payments”.

CONCEPTUAL ISSUES IN OVERVIEW

16. A Sharia law scholar might question whether a “Sharia will” is “valid” under Australian law (as suggested by the title of Malcolm Voyce’s paper, “Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?” (2018) 12 Contemporary Islam 251). On closer examination a more precise question is whether a will that is valid under Australian law can be made in terms that comply with Sharia law? Whatever their precise formulation, both questions invite inquiry about the meaning of “Sharia law” in its intersection with Australian law.

17. “Sharia” is the code of conduct or law of religion of Islam. It is perceived to be a metaphor for achieving salvation for God’s ordained total way of life.

18. The ultimate sources of Sharia law according to its Islamic proponents are two publications considered by Muslims to be sacred scripture. The first is the Qur’an, a holy book recording revelations received by the Prophet Mohammed from God. The second is the Sunna, a compiled record (including but not limited to entries of a legal nature) of words, deeds and actions of Mohammed, and his implicit approval or disapproval of others’ actions around him.

19. The territory occupied by the concept of “Sharia law” within an Islamic community is described in the following terms in Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020) (footnotes omitted):

“The contention of this book is that Islam in different parts of the world, including in Australia, is more than just a religion, a cultural system or a social structure: it is existentially a complex composite of diverse institutional processes and functions, social routines and norms, and sacred rituals and practices responsible for shaping the lives of Muslims. Furthermore, Muslims are more than a product of their religion. While there are some cultural norms common to most Muslim societies and periods that originate from religion and common historical locus, to assume that the ideas and practices embodied in these norms - such as the clergy class - are sociopolitically constant is far from correct. In fact, they are assigned diverse meanings and roles by sociopolitical contexts. The large variety of social and political forms to be found historically and in the present time cannot be explained as differences in a common model of an ideal Muslim society. They are explicable only in terms of the normal practice of social and political examination that considers change as a constant in all societies. [page 4].

Thus, Islam is not a unified or monolithic religion. This has been abundantly demonstrated in numerous sociological studies of Islam and Muslims. Discussing Islam particularly in the contemporary context, Gabriele Marranci states that ‘Hence, since interpretations are multiple, the personal embodiments of Islam are likewise multiple. It is not Islam that shapes Muslims, but rather Muslims who, through discourses, practices, beliefs and actions, shape Islam in different times and spaces. [page 4].

Language, culture, tradition, and the political and social contexts in different geographical locations certainly play an important role in making Islam eclectic. Also important are the numerous sectarian groups, theological clusters and legal schools and their interpretations, which add to Islam’s further eclecticism. Islam is a religion based on sharia (Islamic law) but variations in interpretation of the law abound, contributing to both local and regional differences in what constitutes ‘Islamic’ practices. [page 4] …

Islam is a complete way of life with its own sharia (legal system). [Page 5] …

As a legal system of Islam, sharia is a corpus of rules, considered to be of divine origin, implemented by practising Muslims to govern their ‘ibadat (private worship) and mu’amalat (social relations and human transactions). Abdul Ansari confirms this: ‘In its restrictive sense, the Sharia comprises rules governing relations between man and Allah …, commonly known as rules of ibadat, and rules governing human relations and human behaviours, commonly known as rules governing muamalat’. This set of rules specifies the directions and regulations that govern the lives of faithful believers, and also encompasses moral and spiritual values. Sharia does not separate matters relating to this world from those relating to the hereafter, and the sacred and the profane constitute one whole universal complex. [Pages 95-96] …

One very key problem in [a discussion about the role of Sharia in Australian law] is what Muslim leaders and activists and Muslims in general from different ethnic, parochial, sectarian and ideological backgrounds mean by sharia. [page 96].

For some, it is ‘God’s law’ or ‘revealed law’ and by nature essentially a non-negotiable text-based law originating from the sacred sources - the Qur’an and Sunna (words, deeds and actions of the Prophet Mohammed, and his implicit approval or disapproval of others’ actions around him) - and whose authority lies outside human purview and certainly outside the authority of a modern nation-state. Those with this view, then, present sharia as a set of immutable rules designed by God that cannot be compatible with democracy and modernity, which operate under human-made legal systems: ‘The shari’a, according to this line of thought, is the revealed law of God and is, therefore, the perfect set of rules for human conduct, which needs no supplementation by man-made laws.’ [Page 96] …

… [There are] several understandings of the nature of sharia. Some Western scholars take the view that after sharia’s formative and classical periods of development, it ceased to evolve. Some say, for instance, that in the late Mamluk and Ottoman periods and through much of Islamic history, it was not the specific solutions or legal rulings that were considered critical but how solutions were developed and decisions were taken within the generally accepted framework of thought, utilising commonly accepted intellectual know-how and methods. [Page 97]

Discussion of sharia is now much more complex and contested, not only at intellectual, legal and theological levels, but also it social, cultural and political levels. Muslims who are seeking to keep the practice of sharia alive today fall into two categories. The first is conservative traditionalists: Muslim ideologists, sometimes referred to as Muslim puritans, who seek to keep sharia ‘fixed’. The second is secular modernists, or Muslim moderates, who want to see sharia undergo reform. The latter are divided into two groups. One is often described as modern secularists: they substantially advance more inclusive, pluralistic and vibrant civil societies with an understanding of sharia as a flexible and time/space-friendly legal system. The other is portrayed as critical-progressive Muslims with a broad-based outlook on contemporaries Islam: they focus on reinterpreting normative Qur’anic teachings in light of a global viewpoint and in a way that promotes the wellbeing of people in accordance with their specific context. [page 97] …

20. Perhaps the nearest equivalent in a Christian setting to “sharia law” as thus explained is the concept of “canon law”, described in The Oxford Dictionary of the Christian Church (4th edition, Oxford University Press, 2022, edited by Andrew Louth) in the following terms, informed by a scriptural canon of the Old and New Testaments of the Bible and writers of early “fathers” of the Christian Church:

“Canon law. The body of ecclesiastical rules or laws imposed by authority in matters of faith, morals and discipline.

This corpus of law grew up very gradually. Its beginnings are to be traced to the practice of convening Councils to settle matters of uncertainty or dispute and their issue of a considerable number of ad hoc pronouncements on matters of doctrine and discipline. Such pronouncements had varying degrees of authority, [according] to the importance of the Council and the area of the Church which it represented …

Together with laws accepted as universally binding, there have always been others of only local authority …”

21. There is a vast pool of literature on the meaning, terms and operation of “Sharia law” throughout the world, including scholarly works about the intersection between Sharia law and various national, secular legal systems viewed, particularly, from an Islamic perspective. There is, however, a dearth of Australian case law dealing with the meaning of “Sharia law”, a “Sharia will”, a “Sharia-compliant will” or (inter vivos or testamentary) zakat.

22. In her paper entitled “Family Provision and Islamic Wills: Preserving the Testator’s Wishes through Testamentary Arbitration?” (2023) 46 UNSW Law Journal 205 at 216, Brooke Thompson maintains that “[the] only Australian case to consider an Islamic will” is Omariv Omari [2014] ACTSC 202; (and on appeal) [2016] ACTCA 16; 14 ASTLR 23. That appears to be the common view of other commentators on Islamic law and nothing to the contrary has emerged during these proceedings. Although the case demonstrates the dynamics of an Islamic family with different perspectives of enforcement of a contested “Islamic will”, in default of which a testatrix would die intestate, the legal issue upon which the case turned was whether or not the testatrix had testamentary capacity, which the Court found she did not.

23. In preparing this judgment my attention has been drawn to several books and articles relating to the nature and content of “Sharia law” and its intersection with Australian law. These are the principal ones, listed by author in alphabetical order: Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020); Wael B Hallaq, Shari’a: Theory, Practice, Transformations (Cambridge University Press, 2009); Jamila Hussain, Islam: Its Law and Society (Federation Press, Sydney, 3rd edition, 2011); Hamid Khan, The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries (Oxford University Press, 3rd edition, 2007); Ghena Kayem, Islamic Family Law in Australia: To Recognise or Not to Recognise (Melbourne University Press, 2014); Moojan Momen, An Introduction to Shi’i Islam (Yale University Press, 1987); Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Every Day Experiences in Mamluk Egypt (Oxford University Press, 2011); Brooke Thompson, “Navigating Dual Legal Systems: Islamic Inheritance Law in Australia’s Secular Legal Framework” (2022) 41 University of Queensland Law Journal 89; Brooke Thompson, “Family Provision and Islamic Wills: Preserving the Testator’s Wishes Through Testamentary Arbitration?” (2023) 46 UNSW Law Journal 2005; Prue Vines, “Cultural Negotiation of Inheritance Law in Australia” in Kit Barker, Kate Faulkner and Andrew Fell (eds), Life and Death in Private Law (Hart Publishing, Oxford, forthcoming, 2024); Malcolm Voyce, “Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?” (2018) 12 Contemporary Islam 251; and Asmi Wood, “Splitting Heirs - Succession between Two Worlds: Australian Law and the Sharia”, in Abdullah Saeed and Helen McCue (eds), Family Law and Australian Muslim Women (Melbourne University Press, 2013).

24. From reading this material I have become aware that a number of solicitors are said to have developed a practice of promoting their professional services by claiming expertise in the preparation of a “Sharia will”. I have not been provided with empirical evidence of this and, accordingly, I am not to be taken to have endorsed, or criticised, claims by particular solicitors of expertise in “Sharia law”. I do, however, counsel caution against dogmatic claims of expertise in an area of law at the intersection of “law” and “religion” which, because of diversity within Islamic communities, is inherently uncertain unless tied to a particular tradition in the particular community of the person who seeks to make a will.

25. If (as appears to be the case) a scheme for the distribution of estate assets traditionally favoured by some Islamic communities is at the core of what is meant by a “Sharia will”, and if the exercise of making a will is one that requires a testator to act in consultation with his or her family, a solicitor needs clear boundaries to be drawn in identifying his or her client, limiting the possibility that a disappointed beneficiary might look to the solicitor for compensation: cf, Hill v Van Erp (1997) 188 CLR 159. A solicitor needs to ensure that the testator is fully informed about the potential operation of the Court’s family provision jurisdiction, including its jurisdiction under Chapter 3 of the Succession Act 2006 NSW to make an order for the designation of property as notional estate. The complexity of what is said to be a traditional Islamic system of inheritance law invites caution in a simple representation of an ability to draft a “Sharia compliant will”.

26. There is, at least, doubt about whether there is a settled concept of a “Sharia compliant will”. To the question, “Is this a Sharia will?” the appropriate response might be: “Who wants to know and for what purpose?”

27. Questions like these may need to be addressed because the issues they raise, and any answers to them, may depend upon the estate planning arrangements of a prospective testator and the potentially different perspectives of his or her immediate family (spouse and children, including adopted or ex nuptial children who might be excluded from benefits under a “Sharia will”), members of his or her extended family (who might have expectations of benefit under a “Sharia will”) and dependents and charities who might have an expectation of, or a perceived need for, testamentary recognition.

28. If (but, perhaps, only if) a testator’s wealth justifies the expense and administrative inconvenience of legal structures like a “family trust” or a “family company”, and he or she is prepared to cede ownership or control of property in anticipation of death, he or she might, in life, distribute property in a way that represents a just and fair outcome for his or her family (however defined) not constrained by a forced succession style of will commonly associated with the concept of a “Sharia will”.

29. A lawyer advising an observant Muslim about the management of his or her property in anticipation of death needs, at that time, to be able to look at his or her client’s personal circumstances in terms of past experience, the present state of affairs and the likely future course of the inheritance process within the client’s family, however defined. Likewise, a lawyer acting for the legal personal representative of a deceased observant Muslim needs to be able to look at that process in retrospect in order to appreciate nuances that might be at the core of tensions between the general law of succession and the experiences, and expectations, of the deceased’s family, be they themselves observant Muslims or not.

30. There appear to be three points of intersection between “Sharia (Islamic) law” and the Australian law of succession, which may require careful management by those engaged with an observant Muslim who seeks to make a “Sharia will” to accommodate the religious views of his or her community or in administration of the estate of such a person. They are not unique to an Islamic community but might be encountered in connection with any community in which individuals who are part of the community live with an expectation (of themselves and others) that idiosyncratic inheritance rules govern the administration of a deceased estate.

31. The first point of intersection (perhaps the most difficult for a legal advisor) occurs during a phase of estate planning when it is necessary to identify a testator’s community, the inheritance rules customarily associated with that community, and interests that may be affected by the death of the testator (which may or may not involve consultations with others than the testator) so that he or she can make an informed decision about whether or not to make a will and the terms of any will that might be made, to die intestate, or to effect inter vivos transactions in order to manage or circumvent customary inheritance rules.

32. The second point of intersection occurs during the administration of an intestate estate should an individual (by choice or otherwise) be found to have died without a will. This may or may not involve management of a community’s expectations about who should administer the estate and whether beneficiaries under statutory rules for the distribution of an intestate estate should make concessions to others who may have a claim on the deceased’s bounty according to customs of the community. A person who chooses to die intestate should perhaps be cautioned against unwittingly leaving a written explanation of his or her decision to die without a will lest it be advanced by an interested person as an informal will.

33. The third point of intersection occurs when decisions must be made about whether an application for a family provision order should be made or opposed, whether any persons outside the class constituted by the immediate family of the deceased, his or her beneficiaries and persons eligible to make a family provision application should be consulted, and whether it is or is not forensically prudent to raise an issue about the operation of customary law which might involve expense and delay not cost effective or warranted in the due administration of a deceased estate.

34. Although it may be given short shrift in a secular court unless backed by a legal instrument that facilitates its implementation there is at least a school of thought in Islamic circles that the inheritance rights of members of an Islamic community arise on death automatically and without a will: eg, Ebrahim Iqbal Lambat, Australian and Islamic Laws of Inheritance: Parts I-IV (Lambat Trust, Brisbane). (A similar school of thought can be found in Jewish inheritance law.)

35. Under a heading “Gifts During Your Lifetime”, Lambert gives the following advice to an Islamic audience:

“Under Islamic law, as the owner, you have total discretion over your assets whilst you are alive. You can gift those assets to whoever you choose and the potential heirs have no say at all - they cannot restrict your freedom of disposition. Under Islamic law this freedom of disposition is only lost while you are dying or in the final stages of terminal illness to protect the rights of your heirs (death sickness).

However, you have a duty to be just to your children by treating them equally.

The Prophet (PBUH) gives a general order to all Muslims: ‘Fear Allah and treat your children fairly’. In other words, he makes fair treatment of children part of being conscious of one’s duty toward Allah and fearing him. In another hadith [a report of the sayings or traditions of the Prophet], it is related that the father of An-Nu’man ibn Bashir, a young Companion of the Prophet (PBUH) came to the Prophet (PBUH) and said: ‘I have given a slave as a gift to this son of mine and I would like you to bear witness to that.’ The Prophet (PBUH) asked: ‘Have you given all your children similar gifts?’ When the father answered in the negative, the Prophet (PBUH) said: ‘Seek some other witness for your deed, because I do not witness injustice.’

Based on this hadith, many scholars have ruled that it is forbidden for a father to give a gift to some of his children in a way that makes him prejudicial against others.” …

36. It may be unwise for solicitors and testators to label a will as a “Sharia (compliant) will” because to do so may invite disputes about the extent to which, if at all, contested views about the nature and content of “Sharia law” should be taken into account in the administration of a deceased estate.

37. Where competing claims to an estate are based purely on claims of “religious obligations” they might not be justiciable according to the general law of a secular court. However, if a claim is made in contract or in equity (eg by means of a claim in estoppel) evidence of religious beliefs may have a role to play in determining the nature, intent and expectations attaching to a promise or representation relating to the management or future disposition of property.

38. Despite an acknowledged diversity of views about the meaning and proper interpretation of Sharia law commentary is sometimes marked by an undercurrent of separatism which appears, in part, to be the product of religious enthusiasm in a world experiencing an evangelical revival of the Islamic faith. In dedication to religious tradition some commentators imagine difference instead of seeing similarities within the broader community in which Islamic communities live.

39. Engagement with the local community is also limited by the use by Islamic scholars, teachers and worshippers of a culturally conditioned language (including a wide variety of spelling of even basic words) in describing the Islamic faith (which suggests a need for special knowledge) rather than the vernacular of the particular local community within which an observant Islamic family lives. This is not unique to Islam. Over the centuries since the Vulgate Latin Bible ceased to speak to readers in their own language, many Christians (notably Roman Catholics) have clung to a supposedly “dead” language. Even closer to home, many Christians still cling to the Shakespearean language of the King James version of the Bible (1611) despite the proliferation of many “modern English” versions published since the closing decades of the 19th century.

40. The meaning of “Zakat” depends on context and the level of abstraction of any definition, as well as the administrative arrangements for its collection, administration and distribution in the particular community which embraces the concept.

41. The historical and functional importance of Zakat cannot be underestimated. Historically, it lies at the heart of the schism between Muslims represented by the Sunni and Shii sects as, for example, noted by Toby Matthiesen, The Caliph and the Imam: The Making of Sunnism and Shiism (Oxford University Press, 2023) at page 43:

“The Caliphs maintained that the alms tax, Zakat, should be paid to them and then centrally distributed to the poor. Given the Shii distrust towards the early Caliphs and Sunni’ dominated States, their clerics argued instead that Zakat should not be paid to the State but to the clerics as the representatives of the Imam. The result was a community-centred political economy of piety, in which a special religious tax, amounting to 1/5 of one’s annual surplus income, funded the religious and social welfare infrastructure of the clergy. This allowed Shiism, and its clergy, to survive periods of Sunni reassertion [footnotes omitted]”.

42. The meaning of Zakat cannot be determined without placing it within the broader concept of Sharia law, which views inheritance law as including arrangements for the management of property within a family antecedent to death and, upon death, succession to property within a family, imagining that although property may be held by an individual member of family he or she holds it (in a religious sense) on trust for the family.

42. The meaning and legitimate operation of Sharia law in an Australian context cannot be determined, at least in relation to inheritance law, unless it is placed (conceptualised) within the context of the general law governing a religious community operating as a voluntary association and recognised, in essence, as “the rules” of “a club” of like-minded people. Depending on context, and the form such “rules” take, they could equally be called “religious customary law”.

43. This is a point which may not have been fully appreciated in conversations about the place of “Sharia law” in the Australian legal system, despite the deployment of corporate structures within the Islamic community for local mosques and regional representative bodies.

44. Through the deployment of voluntary associations, local and regional communities can accommodate their particular and shared religious beliefs and practices, providing for continuity and change from which a broadly based consensus might emerge and differences might be managed.

45. In Attorney General Ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 98 ALR 327 at 348; 95 FLR 392 at 412-413 Young J (a leading Australian authority on law and religion) adopted as convenient for analysis of different models of church governance a scheme distinguishing between the “Hierarchical”, the “Presbyterian” and the “Congregational”.

46. The Hierarchical model is one which has a superior clergy and in which the government of the church is committed to those superior clergy. The “Presbyterian” model is where there are a succession of committees at national, regional and local level, so that a decision of the local congregation may, in appropriate cases, be overturned by that of a general assembly. With a “Congregational” model, the local congregation is the body which makes or unmakes the rules.

47. Accepting that Islam has no “clergy” or religious authority akin to those who serve a Christian church, that religious specialists in Islam do not practise sacramental or priestly functions, and that Muslim clerics do not serve as intermediaries between human beings and God but principally serve as teachers, guides, judges and community leaders (Jan A Ali, Islam and Muslims in Australia, page 116), the centrality of a local mosque to the lives and worship of observant Muslims suggests that a standard model for the governance of an Islamic community in Australia is “Congregational” in character as adherents gather together with like-minded believers within a broader, more diffuse Islamic community.

48. In court proceedings concerning members of a religious community the nature and effect of the obligations of a member of the community (a voluntary association) must generally be established by evidence or admissions: Scandrett v Dowling (1992) 27 NSWLR 483 at 491B-E. The law recognises in this way that in the determination of a particular controversy the facts of the case are of central importance.

49. In an Australian context, Sharia Law takes its colour from local communities, each member of which, by dint of his or her membership, may be required to submit to the religious practices of his or her particular community, may be excused from doing so or may cease his or her membership, moving on to another community. This, at least, reflects the essence of a voluntary association of co-religionists: Scandrett v Dowling (1992) 27 NSWLR 483 at 522F.

50. Core problems in working out the correct metes and bounds of Zakat and Sharia law as abstract legal concepts in a general law setting (as distinct from religious obligations) include the following:

1. there is an inherent uncertainty about whether any particular person (and, if so, who) has a definitive role in the collection, administration and distribution of Zakat within an Islamic community.

2. there is an inherent uncertainty as to whether Zakat is to be conceptualised as an allocation of resources to particular purposes or as an allocation of resources to particular classes of people.

3. there is an inherent uncertainty as to whether Zakat is limited to purposes that are benevolent or whether it can properly be applied to other purposes, such as those that are exclusively political (for example, at an extreme, in support of war).

4. in the context of the administration of a deceased estate (especially, but not only, in a case in which there is a testamentary direction to “pay Zakat”) it is necessary to consider the relationship between a commitment to the payment of Zakat (as a means of assisting those in need) and what is perceived by some commentators to be a Sharia law requirement to comply with a system of forced succession that, by fixing the proportions of a deceased estate distributed within a family, systematically (inter alia) favours sons over daughters regardless of need, based upon an assumption that males will look after females and females have no need to look after anybody but themselves.

5. the nature of Sharia law (and hence of Zakat as an integral part of Sharia law) needs to be tested against apprehension on the part of Islamic scholars that, in the context of administration of a deceased estate, there is a fundamental conflict between Sharia law and the family provision jurisdiction of the Court.

6. although the inheritance rules affecting the balance struck by Sharia law between immediate and other family members, and between sons and daughters, of a deceased person are sometimes said to be immutable (because prescribed by the Qur’an as divine law) that view does not sit comfortably with the fact that several jurisdictions in good standing within the worldwide Islamic community are said to have legislated changes to those inheritance rules, inviting the question why should a secular court be constrained in pursuit of a just outcome reached after debates on the facts of a particular case?

52. The nature of Sharia law (and, incidentally, that of Zakat) is revealed in part by concerns expressed by some commentators on Sharia law about its intersection with the family provision jurisdiction of the Court.

53. Those concerns invite the following observations:

1. Concerns about the operation of the family provision jurisdiction in its displacement of a testator’s arrangements for his or her family are not unique to Islamic families, but are shared by sections of the general community, not excluding judges.

2. There appears to be resistance on the part of some commentators who favour Sharia law to observant Muslims having to submit to a decision being made about their family’s inheritance arrangements by a judge who is not, or may not be, an observant Muslim.

3. Criticism of family provision legislation is conceptualised in terms of standard glosses on the legislative text common among legal practitioners (“moral duty” and “need”) rather than focusing on the text itself, thereby setting up a false conflict between family provision principles and Sharia law. Cf, Vigolo v Bostin (2005) 221 CLR 191 at 204, 230.

4. Criticism of the family provision legislation appears to assume that the primary object of the legislation was to impose a general community based “moral” obligation on testators whereas, in historical fact, a major public policy objective of the legislation has long been to protect public resources from the social security ramifications of a testator not providing adequate provision for persons dependent upon him or her. The family provision jurisdiction is viewed by its critics as focused exclusively on a moral dimension of family relationships (which justifies resistance to an application of “community standards” not exclusively those of a particular family) without regard to a major public policy reason for the jurisdiction; namely, to protect the state from having to fund those in need whose families have resources available to address need.

5. A testamentary direction to pay Zakat might have work to do upon an exercise of family provision jurisdiction in its explicit recognition that, whatever Islamic inheritance rules might say about fixed proportions for the distribution of a deceased estate, a member of the family of the deceased who is in need (and perhaps, therefore, within the class of persons who, but for fixed proportion constraints, might have a right to expect Zakat-type assistance) might reasonably be considered worthy of an award of family provision in a case not inconsistent with an imperative for justice within a family prioritised by the Qur’an as an expression of God’s law.

THE LEGAL CHARACTER OF “SHARIA LAW”

54. The character of an obligation to pay Zakat under “Sharia law” (understood in Australia to be a religious obligation of individual conscience) invites consideration of the legal character of “Sharia law” under Australian law and its intersection with the general law.

55. This line of inquiry takes one, at a high level of abstraction, to questions about the enforceability of the “rules” of a religious community, based upon an adherent’s conscience, unattended by a dispute about property of the community or legislative backing. Generally, there is no “established church” under Australian law and religious communities generally coalesce under a “consensual compact” falling short of a contract.

56. In the eyes of the law they are a “club” of like-minded “members” governed by the law relating to voluntary associations, whether incorporated (under legislation) or unincorporated. “Membership” of such a “club” might be formal, but often it is informal in the sense that its rules of practice may be largely unwritten and it includes a fluctuating group (an association) of people who adhere to, or hold, core common beliefs. The meaning of the word “membership” and its variants depends on context.

57. Under the general law a religious body is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or “consensual compact” to which they are parties: Macqueen v Frackelton (1909) 8 CLR 673 at 679; Wylde v Attorney-General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224 at 257, 275, 286, 298.

58. The terms of a “consensual compact” may not be enforceable in a secular court absent a need for the court to determine a civil or proprietary right in a dispute between contesting parties.

59. In some discussions of “Sharia law” it is presented, expressly or by implication, as an idea that it can, or should, only be administered by a separate body of people (a “court”, “tribunal”, “council”, “board”, “committee” or a religious officer such as an Imam) with whom Muslim believers identify. That idea may have currency in the context of conventions, and dispute resolution procedures, within the membership of a voluntary association of like-minded members. It has no currency in the community at large.

60. The genius of the common law tradition to which Australia adheres is that religious, social and political groupings of like-minded people can be accommodated within the general law by legal principles governing voluntary associations; the law of trusts (where ownership of property is involved); a public policy (subject to regulatory intervention) that leans against interference by the courts in the domestic affairs of a voluntary association unless necessary to determine a dispute about a civil or proprietary right; and, within a responsible system for the administration of justice, freedom of association, freedom of contract and testamentary freedom. These understated freedoms (underpinned by ordinary common law rules and principles of general application) provide a rock upon which human rights lawyers have built a more visible narrative in support of “freedom of religion”.

61. In an essay entitled “Family Law: Current Conflicts and Their Resolution”, published as Chapter 7 of RG Jones (ed) Islam and English Law: Rights, Responsibilities and the Place of Shari’a” (Cambridge University Press, 2013), a product of a public discussion sponsored by the then Anglican Archbishop of Canterbury Rowan Williams, Baroness Butler-Sloss (a former President of the Family Division of the English High Court of Justice) and Mark Hill QC made the following observations (at page 109), which could equally be made about the Australian legal system:

“English law … applies to all cases where the parties come to the English Court for adjudication upon divorce, domestic violence, financial disputes, determination of matters of residence and contact and the family, and other ‘specific issues’. The religious and cultural tradition of the parties in an English Court may, and often will, be relevant to their approach to the issues between them; but English law, and only English law, applies.

Now if the members of a family choose in a dispute to involve the help of their own religious tribunals, there is no reason why those tribunals should not assist the family. The two major religious communities with their own separate legal tribunals are the Muslims with shari’a councils and the Jews with the Beth Din. A divorcing couple - both parties being of sound mind and properly advised, neither being under any sort of compulsion – might choose to reach a provisional settlement on financial arrangements and on the children’s upbringing, a settlement that might well be facilitated by the mediation of the parties’ lawyers, the Beth Din or a shari’a council. The English court is likely to say, ‘Why interfere with the settlement?’ The Court may well endorse the settlement. So the intervention of the tribunals may be very influential. But for the settlement’s enforcement the terms of the settlement must pass under English law through the English courts; the decisions of religious tribunals on matters of family law are not recognised in the English courts, nor can they be enforced.”

62. In an Australian context, Sharia law may inform the operation of Australian law, as may the rules of practice of non-Islamic religious communities, but they cannot rise above, or operate outside of, the general law.

63. What is spoken of as “Sharia law” in an Australian context is perhaps best understood, in a legal context, as an understanding of the rules of practice indicative of religious obligations voluntarily assumed by a participant in an Islamic community as part of the consensual compact between members of the community, not (without entry into an obligation independently enforceable at law or in equity or as may be necessary to determine a “civil or propriety right” or a dispute about property) enforceable under the general law.

64. In Australia, in common with “the Law” of other religious communities, “Sharia Law” is (to adopt a description of “Islamic economics” in Mona Atia, Building a House in Heaven: Pious Neoliberalism and Islamic Charity in Egypt (University of Minnesota Press, Minneapolis, 2013) at page 5), a body of knowledge and a set of practices resulting from the application of an Islamic ethical framework to legal concerns. It might inform an application of the general law but it is not itself a law of general application.

LAW, LITERATURE AND SHARIA LAW

65. The nature of “law” is generally reflected in literature which expounds it.

66. By way of example, the conceptual framework of the “common law” of England inherited by former colonies such as Australia, New Zealand, Canada and the United States of America experienced a transformation in the 19th century as the nature of legal literature changed. In an action-based system of court administration legal literature was dominated by digests of decided cases in the several courts that then exercised their separate jurisdiction to grant different remedies. With procedural changes that enabled a single court to administer several different types of jurisdiction and to grant all available remedies, and with a shift towards the provision of legal education by universities rather than merely by practitioners, action-based literature was replaced by specialist treatises expounding particular topics by reference to “scientific” principles underlying the grant of a remedy: AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson’s Legal Theory and Legal History: Essays on the Common Law (Hambleton Press, London, 1987).

67. An illustration of this shift in focus in legal literature can be seen in a comparison between the form of Dr Richard Burn’s classic text The Ecclesiastical Law (in the 8th 1824 edition and the 9th 1842 edition, contemporaneous with New South Wales’s reception of English law in 1828) and its successor, Sir Robert Phillimore’s The Ecclesiastical Law of the Church of England, the 2nd (1895) edition of which was edited by Phillimore’s son, Sir Walter George Frank Phillimore.

68. Each volume contains similar content, but Burn’s text is presented in the form of an encyclopaedia of single topic “Titles”, one of which is “Tithes”. Phillimore deals with the same topic (with passages drawn directly from Burn) in structured “Parts”, divided into “Chapters”, divided into “Sections”. “Tithes” are dealt with in Chapter 3 (entitled “Tithes and Rent Charges”) of Part V, entitled “Property of the Church”. Continuity in the treatment of this topic was perhaps aided by the fact that Sir Robert Phillimore edited the last, 9th edition of Burn’s classic.

69. Traditionally, the conceptual framework of “the common law” differs from that of European and other civil law jurisdictions (based on a Roman Law tradition) which favour law in the form of written codes rather than the common law tradition of judge-made law.

70. Differences between the common law tradition and a civil law tradition may evolve differently than in the past because modern society demands engagement between different systems of law, across jurisdictional boundaries, in the conduct of both public and private business.

71. In the present context, dealing with inheritance law, the distinction between the common law tradition and a civil law tradition remains important because some expositions of Sharia law assume that it can readily be contrasted simply with law governing Western culture. In fact, in the realm of “inheritance law” Sharia law may have more in common with the civil law tradition than it has with the common law tradition to which the Australian legal system belongs.

72. One should also notice that some Islamic literature, mindful of the theological leanings of those who administer Sharia law, if not also an audience of Islamic believers, tends at times to express ideas in a dogmatic form which, to the world at large, may be read principally as rule-based reasoning applicable only to those who adhere to the Islamic faith and beyond rational debate. Different approaches to the interpretation of sacred texts may be taken depending on whether the perspective of the reader is that of dogmatic theology, comparative studies or historical inquiry.

“ECCLESIASTICAL LAW” AND “SHARIA LAW” IN COMPARISON

73. An analysis of the nature and scope of the concepts of “Zakat” and “Sharia Law” in the eyes of the general law of Australia might be assisted by an outline of a parallel experience of the Anglican Church: historically, an “established church” in England and, so, part of the State, but recognised in the 19th century as a voluntary association outside England. The parallel arises from the fact that in some jurisdictions outside Australia, Sharia Law is part of the governing law of the State, but not here.

74. In the leading judgment of the Court of Appeal in Scandrett v Dowling (1992) 27 NSWLR 483 at 554C-F, Priestley JA made the following observations (with editorial adaption):

“In places where adherents to the faith of the Church of England had to organise their spiritual and Church related temporal affairs without the benefit of their Church law being regarded, as it was and is in England, as part of State law, there was no way by which purely spiritual matters could be dealt with by State courts lacking ecclesiastical jurisdiction. The binding effect of [a] ‘voluntary consensual compact’ … must therefore necessarily have come from something other than the enforceability of such compact or contract in State courts. The bindingness must have come from the shared faith of the members of the Church …

222. Nevertheless, I lean against a finding that the deceased’s testamentary direction to “pay … zakat payments” must fail for a want of certainty or that it serves no purpose other than simply lending support to characterisation of his will as a “Sharia will”. In my opinion, the direction has work to do if construed as an implicit acknowledgement at the time of execution of the will that, at the time of death, the deceased may have bound himself and his estate, at law or in equity, to pay a debt (enforceable under the general law) in the nature of a Zakat payment.

223. In adopting this view, I proceed on the basis that Zakat, in the deceased’s community, was a voluntary payment made according to the conscience of the payer as a living person not, without more, enforceable at law or in equity. For an obligation in conscience to become legally binding upon the estate of a deceased person he or she must have bound himself or herself, in life, by means of an agreement, promise or other commitment enforceable under the general law.

224. A Zakat purpose of a type intended to be promoted by the deceased might be one that would satisfy the test of a charitable purpose under the general law but not necessarily (for example, for a want of public benefit) the legal requirements of a “charitable trust”. The concepts of a “Zakat purpose” and a “charitable purpose” may overlap, though they are not co-incident in all respects. A gift of property for a Zakat purpose may satisfy a donor’s religious obligations but not satisfy the requirements of the general law for recognition of a charitable trust. A testator who seeks to establish a testamentary trust for a Zakat purpose should consult the general law of charities to ensure that the trust is consistent with the law governing charitable trusts.

225. In the context of his will, what the deceased contemplated by a “Zakat purpose” may reasonably be taken to be a purpose implicit in one or more of the eight categories of eligible recipients of Zakat derived from readings of the Qur’an (verse 9:60).

226. Implicit in a construction of clause 4(b)(i) of the will that ties the meaning of the expression “Zakat payments” to a commitment entered into by the deceased during his lifetime and enforceable at law or in equity is a need to identify a person or persons entitled to enforce a Zakat commitment entered into by the deceased during his lifetime. The clause does not permit an administrator of the deceased’s estate (as a representative of the deceased) to incur a fresh obligation to pay Zakat as an incident of estate administration because an essential feature of Zakat under Australian law is that it is a personal commitment made by a living person, perhaps informed by principles taught by religious teachers within his or her community but entirely voluntary and the expression of a free and capable person.

227. With the consent of all affected beneficiaries, an administrator might apply estate property to the payment of an amount of money loosely characterised as Zakat, or in the nature of Zakat, but the legal foundation for such a payment is in the consent of the beneficiaries, not a testamentary direction such as clause 4(b)(i).

228. Although clause 4(b)(i) contemplates that any payment of Zakat is made before distribution of the deceased’s estate to beneficiaries it, of itself, imposes on them no obligation to pay Zakat by reason only of their receipt of a gift under the will and it neither empowers nor authorises the administrator to pay, or to require anybody else to pay, Zakat as a condition of acceptance of a testamentary gift.

229. Although a testamentary gift can be made subject to a condition the acceptance of which may bind the conscience of a donee, there is nothing in the will of the deceased that renders entitlements of the deceased’s children under the will conditional upon a payment of Zakat. Whether they pay Zakat from funds received in the administration of the estate of the deceased is a matter entirely for them according to conscience as it may be perceived by them individually.

CONCLUSION

235. Subject to allowing the administrator an opportunity to consider these reasons for judgment and the possibility that further directions may be necessary or appropriate in administration of the deceased’s estate, I propose to make orders to the following effect:

1. Upon an assumption that she has received at the time of distribution of estate assets no notice of a claim for Zakat based on a cause of action accrued at or before the death of the deceased, ORDER that the administrator would be justified in distributing the estate of the deceased on the basis that no allowance is to be made for a payment of, or in the nature of, Zakat.

2. ORDER that the administrator’s costs of and incidental to these proceedings be paid out of the estate of the deceased on the indemnity basis.

236. In the course of preparation of these reasons for judgment my attention has been drawn to a perceived necessity for legislative reform of “succession law” to accommodate what are perhaps best described as the idiosyncratic customs of communities that do not conform to the norms of mainstream Australia.

237. Under Australian law, a testator has freedom to order his or her affairs by means of a will, albeit qualified by the possibility of an application being made after his or her death for a family provision order. If a testator has conducted his or her affairs with due respect for the moral imperatives of his or her community’s customs (for example, by professing and acting upon a genuine love of God) he or she cannot readily be blamed for any odium that attaches to the making of a family provision order the responsibility for which must be borne by the Court.

238. Upon an assumption that a person does not die intestate by choice, the rules of intestacy (presently found in Chapter 4 of the Succession Act 2006 NSW) might be thought unnecessarily in conflict with the customs of some idiosyncratic communities: notably (as appears in the paper of Professor Vines noted in paragraph 23 of these reasons and her other writings), not only those of Muslims, Orthodox Jews and Indigenous Australians.

239. Indigenous Australians can call in aid Part 4.4 (sections 133-135) of the Succession Act 2006 NSW, the provisions of which I reviewed in Re Estate Wilson, Deceased [2017] NSWSC 1; 93 NSWLR 119. That legislation empowers the Court, in effect, to vary the strict statutory rules for the distribution of an intestate estate so as to accommodate “the laws, customs, traditions and practices” of an indigenous community or group to which an indigenous intestate belonged”.

240. In a postscript to my judgment in that case (93 NSWLR 153-154; paragraphs [188]-[192]) I invited consideration of a proposal that the basic provisions of Part 4.4 might be extended to the general population. I had in mind at that time a need to accommodate informal family arrangements typified by a next door neighbour who is as much a member of family as a blood relation but lacking that status and the status of a person eligible to make an application for a family provision order. If taken up, such a proposal could accommodate some of the concerns expressed in or about idiosyncratic religious communities.

241. Counterbalancing any proposal for legislative reform long these lines is a caveat that the grant of a fresh discretionary power to vary the standard statutory rules for distribution of an intestate estate may unnecessarily serve as an invitation to a family in conflict to rely upon the Court to resolve disputes within an idiosyncratic community when the prime responsibility for the due management of a deceased estate lies with each competent individual empowered to make a will. A “statutory will” for a person lacking testamentary capacity (for which Part 2.2 Division 2, sections 18-28, of the Succession Act 2006 NSW provides) is another story.

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ADDENDUM (19 March 2024)

On 19 March 2024, Lindsay J made the following orders and notations:

1. Upon an assumption that she has received at the time of distribution of estate assets no notice of a claim for Zakat based on the cause of action accrued at or before the death of the deceased, ORDER that the plaintiff, as administrator of the estate of the late Ahmal Abou-Khalid (who died on 9 December 2019), would be justified in distributing the estate on the basis that no allowance is to be made for a payment of, or in the nature of, Zakat.

2. ORDER that the plaintiff’s costs of and incidental to these proceedings be paid out of the estate of the deceased on the indemnity basis.

3. RESERVE liberty to apply for further or consequential relief in the working out of these orders.

4. ORDER that these orders be entered forthwith.

Amendments

19 March 2024 - On 19 March 2024, an addendum was added

Decision last updated: 19 March 2024