Equity, not equality, at heart of rules

[Winged Isis]

Equity, not equality, at heart of rules
Jamila Hussain
April 8, 2012

"How easily we forget that equality for women is quite a modern development" ... Jamila Hussain.

Today, most people assume parents will treat sons and daughters equally when they make a will, unless there is some special reason, such as disability, to give a greater share to one of the children. In the 21st century we are conscious of gender equality and have the same high aspirations for our sons and daughters, so that when a case comes up where it appears that a daughter has been treated unfairly by being allocated a lesser share than her brothers, our sense of indignation is aroused and we seek to censure the parent and/or the system that has made this possible.

How easily we forget that equality for women is quite a modern development. Until 1870 in Britain, and later in the Australian states, women did not have the right to own or dispose of their own property and fathers who left property to their daughters ran the risk of a dissolute husband appropriating the gift for his own purposes, regardless of the wishes of his wife. Women were not admitted to universities because of their allegedly feeble minds and most respectable occupations were closed to them. In the late Victorian age nobody would have been surprised or scandalised if a parent willed to a daughter much less than was willed to a son. There was an underlying expectation that men would always be the breadwinners and that daughters would be able to rely on their husbands for support.

There are similar assumptions in Islamic law. The Koran lays down in considerable detail how the assets of a deceased Muslim are to be shared between near and sometimes distant relations. Muslims may leave one-third of their property as they wish but the rest must be divided according to Koranic rules, which stipulate that in most cases females receive half the share of males.

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Islam places an obligation on men to support their female relatives, not only wives and daughters but mothers, grandmothers, aunts and cousins who do not have any other male to look after them. In no circumstances is a woman expected to support herself and her children through her own efforts. This is the justification given by scholars for the unequal treatment of females in inheritance. The rules reflect the society that existed in Arabia at the time of the Prophet, and for many centuries later, and reflect attitudes not dissimilar to those that existed in English-speaking societies right up to the 20th century.

A recent case concerning a Muslim family before the ACT Supreme Court gave rise to negative comment in the Australian media. In this case, an elderly Muslim woman made a will in accordance with Islamic rules, leaving her sons twice the inheritance received by her daughters. One daughter challenged the will, saying that at the time of making the will, her mother did not have the mental capacity necessary for making a valid will. This requirement is the same in Australian and Islamic law - a person making a valid will must not be suffering from any mental incapacity that might impair their ability to understand the will.

Medical evidence was put before the court that the lady concerned was suffering from the effects of early dementia at the time she executed the will. The court was not required to decide whether the terms of the will were fair or whether the daughters should have received the same share as the sons. Ultimately, the court found that the mother lacked testamentary capacity at the time of making the will, because of dementia, and thus the will was not valid and she died intestate. The result was that her estate was to be divided in accordance with ACT law on intestate estates.

The case raises the question of whether or not the rules of Islamic law are still appropriate when women now are often as well educated and sometimes better educated than their male relatives, and are capable of supporting themselves. Many Muslims would be adamant that the Koranic rules must apply. Australian law allows a testator to devise their estate to anyone they like and in any proportions they choose, subject only to any family provision legislations that might exist in order to protect dependants. Courts will not change or invalidate wills because they disapprove of the way the testator has distributed his or her possessions.

In teaching wills and estates to Malay students overseas and to Australian students locally, I have found it interesting that Malay students were shocked that Australian testators could leave all their property to someone outside the family and Australians became indignant that Muslim women receive a half-share of what the men receive under Islamic law rules. The objective of the Koran is to achieve justice. There may be a case for reinterpreting the shares under Islamic law but the scholars are cautious and in the foreseeable future it will remain up to each testator to consider what is fair and just between their beneficiaries and make such adjustments as the law allows.

Jamila Hussain is a senior lecturer in the faculty of Law at University of Techology Sydney and teaches Islamic law.



Read more: http://www.smh.com.au/opinion/society-a ... z1rPkK9soQ

[TonyC]

Well, that's the way to go! If anyone doesn't like their old mum's wishes – with or without a hint of Islam – hie thee to the court to get her ruled, retrospectively, incompetent. Fair shares all round!

Interestingly, the court decided she must have shown signs of "early dementia". Will it be a legal requirement now that a potential will-maker must have a medical decision about possible "early" dementia before putting pen to paper?

I know the article goes "big" on Islam and the Quran, but it seems to me that it's just another standard internecine squabble over the division of the spoils.

[Glyphdoctor]

So a Muslim woman deciding to write a will following Islamic law is not of sound mind?

[TonyC]

No, not even in Australia! The Supreme Court judgment upheld the right to a will based on Islamic principles; not that you'd think so from the people acclaiming a victory over Sharia law. It's just that in this case the mother "wasn't in her right mind"! I hope the family enjoy their share-out ... if it hasn't gone on legal fees.