14 March 2012
A bitter dispute between siblings came before the ACT Supreme Court in Canberra last week, when a daughter of a devout Muslim woman demanded she receive the same inheritance as her brothers.
It concerns the estate of Mariem Omari, who was born in Turkey in 1928 and died in a Canberra nursing home in 2009.
Mrs Omari began showing signs of dementia in the late 1990s, and by 2000 she had begun leaving her house to wander the streets of Canberra, looking for ways to "return to her home (but) she had no idea where her home was".
In 2002, Mohamed and Mustapha discovered their mother did not have a will.
Their mother expressed her wish for the estate to be divided according to "Islamic Law". As a consequence, the will gives her daughter half the amount that it gives each of her sons.
However, since the woman was suffering from an advanced state of dementia at the time, her will is legally invalid.
In the absence of a valid will, the daughter argued that Australian law, not Islamic law, should apply to their mother's estate.
The issue is not whether a person can make a will expressly giving twice as much money to sons than to daughters. That is allowed in Australia, and the terms of such wills are respected.
The question is: What happens when that person is mentally unfit or the legality of the will is otherwise compromised and
the will is contested by some of the heirs? Should Australian law or religious law be applied to resolve the dispute?
The case came before Master David Harper in the Supreme Court in Canberra last week. The court declared that since Mrs Omari died without a valid will, her disputed estate must now be divided by the Public Trustee in accordance with Australian law, which would mean that the children would gain an equal share regardless of gender.
Australia's religious leaders have spoken out about the decision.
The president of the Australian Federation of Islamic Councils, Ikebal Adam Patel, said "A precedent could be set here whereby all similar cases might be decided against the will of the person making the will when they very strictly wanted to abide by religion."
The imam of the Canberra Islamic Centre, Adama Konda, agreed that the "standard expectation is that a Muslim will leave full shares to sons and half-shares to daughters"
However, Sydney University Arabic and Islamic studies honorary professor Ahmad Shboul said the family would have received similar treatment in Turkey, where the mother was born, as they had in Australia, because Turkish law separated church and state.
If the family was "living in Turkey today, the judgment there would be exactly the same as the reported judgment of the Australian court".
Sophie Gosper, "Respect our way on wills, say Muslims
" The Australian
March 15, 2012
Caroline Overington, "Daughter disputes Muslim will that gave brothers twice as muc" Australian Business
March 14, 2012