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A Will

Wills and your freedom to choose

29 October 2014

The flexibility in succession law is important in determining how your estate is distributed.

Most of us, with some justification, believe that our money is our own to do with as we please; after, of course, we have met our obligations to the state through payment of tax and perhaps provided for dependant minor children.

In England and Wales we have what is referred to as ‘freedom of testamentary disposition’; that is to say, the freedom to dispose of our assets in any way that we see fit. Such freedom is not observed in many other countries operating under common law who have ‘forced heirship’ rules which govern who receives what under a Will. For example an individual domiciled in England and Wales could choose to leave their entire wealth to a charity or a carer; whereas an individual subject to forced heirship rules will be required to leave specific percentages of their wealth to their spouse, children and other relatives.

This freedom to make a Will benefiting whomever we choose is limited to some extent by statute. The Inheritance (Provision for Family and Dependants) Act 1975 provides that if reasonable financial provision is not made for certain specified persons under an individual’s Will then the disappointed beneficiary can bring a claim against the estate. There is no automatic right and the claimant, often the spouse or child, broadly has to prove a reasonable financial dependency.

Cultural and religious influences

Some individuals may wish to make a Will based on culture or religious beliefs. The Law Society recently issued guidance in respect of those individuals who wish to make Wills compliant with Sharia law.

Under Sharia succession rules, after payment of any debts and the costs of burial, one third of the estate is freely disposable and therefore can be given to charities or individuals who are not obligatory heirs. The remainder of the estate must be given to a defined set of primary and residual heirs. The male heir will receive double the amount received by female heirs, whilst illegitimate children and non-Muslims are both excluded from benefit.

Challenges against a Sharia-compliant Will

In theory, a Sharia heir who falls within the specified class of potential claimants under the Inheritance (Provisions for Family and Dependants) Act and who does not receive the stipulated benefit under a Sharia-compliant Will can claim against the estate; but the enforceability of such a claim in English courts is as yet untested.

Interesting headlines

There have been a number of headlines stating that Islamic law is to be enshrined in British law; but ultimately this is misleading. The entire property of a person who is domiciled in England and Wales will be governed by English succession law whether the Will is Sharia-compliant or not. It is simply that the flexibility of our succession law, and in particular the freedom of testamentary disposition enshrined in it, enables Sharia-complaint Wills to be made; and perhaps is a further demonstration of the ability of our laws to cope with the demands of our multicultural society.

Please note that advice relating to a Will involves the referral to a service that is separate and distinct to those offered by St. James’s Place. Wills are not regulated by the Financial Conduct Authority.

Some of the products and investment structures documented within this article will not be available to our clients in Asia. For information on the funds that are available please get in touch.

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