As David Conway has noted in this space, the past week has seen quite a brouhaha in the United Kingdom over the Law Society’s decision to issue guidelines for sharia-compliant wills.
The controversy has sparked commentary here as well. But there appears to be considerable confusion on this matter, resulting in some very ill-considered assertions—ones that could backfire on time-honored conservative principles. The message here must remain: “Look before you leap.”
The Law Society very specifically issued guidelines to lawyers serving clients who choose to craft wills that follow sharia rules. Thus they state:
Provided the will is signed in accordance with the requirements set out in the Wills Act 1837, there is nothing to prevent an English domiciled person choosing to dispose of their assets in accordance with Sharia succession rules (subject to any potential claim under the Inheritance (Provision for Family and Dependants) Act 1975, which only applies where the deceased died domiciled in England and Wales). You will have to obtain probate on the Sharia-compliant will, in the normal way. (See section 2.5)
The guidelines do not advocate the overturning of laws governing intestacy, but merely advise lawyers on how to follow the wishes of their clients without making a hash of those intentions.
This tracks with what conservatives in this country have long done, at least since the rejection of the ultra-conservative notion of primogeniture in colonial times. In the new Republic, very few (and not even Jefferson!) disputed the right of a private citizen to craft a will designating persons of his or her own choosing as heirs. And these documents can include all sorts of provisions that the person’s family members or others may find objectionable.
Wills have subsequently been written by individuals to fulfill all manner of intentions, religious or otherwise. Except for very unusual circumstances, only intestacy has been viewed as grounds for state interference in matters of inheritance.
There is one major modern source of dissent from this idea, however: Progressives who would like to break up what they believe to be the unfair advantages of the children of the wealthy. Does anyone remember Eugene Harlan Read?
Before we all scream and pull our hair out, we need to consider the full implications of what we are saying when we decry the liberty to write a will as one pleases for reasons of personal conscience. We could be inviting more of a backlash against testators than we realize . . .