Recent media coverage of an ACT disputed estate court case focussed on an element of the case which was not the legal issue in question.

It was reported in the article that a mother’s sons wanted the estate of their mother divided in accordance with Muslim law, while a daughter argued that Australian law should prevail.

Two of Mrs Omari’s sons, Mohamed and Mustapha, as executors, sought court orders that a will, made by Mrs Omari at a time when her testamentary capacity was questionable, and made in terms consistent with Muslim faith, was valid.

Doesn’t it make a good headline? The conflict of inheritance law and Muslim law? Well, not really.

The case was concerned about whether the will of Mariem Omari was a valid will according to Australian law. It’s as simple as that.

Mrs Omari’s will was a home-drawn will made without the benefit of legal advice.

Mrs Omari’s will was a home-drawn will made without the benefit of legal advice.

During the course of the proceedings evidence was called from a number of witnesses regarding the Muslim inheritance custom. The faith generally requires any person with assets to make a will in terms that comply with the rule that daughters receive a half share of what the sons receive. This is the standard expectation – a religious duty which was clearly stated in the Koran, and was a law which had applied for 1400 years.

It was a matter of fact that Mrs Omari was a very pious Muslim who faithfully observed appropriate religious practise throughout her lifetime.

Testamentary capacity means the mental ability to make a will.

Whether a person has testamentary capacity is a question for a court to decide when capacity is called into question. Medical evidence about the person is useful, but not proof of capacity.

Where a will is in question because of concerns that the deceased person did not have testamentary capacity, the terms of the will are a relevant consideration. Obviously if the will was one which the deceased person was unlikely to have made, this would support an argument that the deceased person did not have capacity to make a will. But where the will was in terms that accord with the deceased person’s wishes and values, then a court might be more likely to find that the deceased person had the ability to make the will.

For this reason, the executors led evidence about Mrs Omari’s religious beliefs in support of their argument that the will was consistent with her values.

It must be noted that the time of the making of the will is the relevant time for the application of the test. The court found as a matter of fact that Mrs Omari was suffering from advanced dementia causing severe cognitive impairment at the time of the making of the will, notwithstanding that the will was one which Mrs Omari may have made had she the required ability to make a will at the time.

Mrs Omari’s will was found to be invalid for want of testamentary capacity.  It was this lack of testamentary capacity meant that her will was invalid, not that that Muslim law cannot form the basis of a will in Australia.

The end result was that she was found to be intestate and in that case her estate would be divided equally between all her children.

In all Australian jurisdictions the law still gives a person testamentary freedom – that is, the freedom to make a will in whatever terms the person chooses. This freedom makes sense to most of us: we like to think that we should be able to decide for ourselves who we leave our property to when we die.

And, in accordance with the principle of testamentary freedom, any Muslim person may make a valid will that distributes their estate in conformity with Muslim law or practice.

This freedom of testation applies to every person who lives in Australia and owns property here. This means that if I want to I can leave everything I own to the dog home down the road, and make no provision for family members. And, if I was a Muslim, I could leave my daughters a half share of what I leave for my sons.

It is important to note that testamentary freedom is underpinned by a law which says that if we have a moral duty to provide for a spouse, child or dependent person, and we should make adequate provision for them. If we do not, the court can order that such a person receive further provision from our estate.

This means that even though Muslims in Australia are at liberty to leave their estate in differing shares between their sons and daughters, the court can interfere with that freedom by ordering that a daughter receive a greater share of the estate.

As well as illustrating important issues about will-making such as testamentary freedom and testamentary capacity, Mrs Omari’s will case illustrates the need to make your will before your ability to do so is called into question.

And, if you do wish to leave your estate in ways that might cause conflict between family members, it is worth obtaining qualified advice from a specialist lawyer about options available to you to give effect to your wishes and to avoid costly and family destroying estate litigation.