Scroll for more

down-arrow-icon
cultural considerations religious considerations wills estate planning religion lawyers queensland

Cultural and religious considerations when making a Will

I have read with interest the matter of Omari v Omari. Mrs Omari passed away in 2009. One of her children challenged the validity of Mrs Omari’s Will on the grounds that Mrs Omari lacked testamentary capacity to make her Will (due to alzheimers/dementia). The judge determined that Mrs Omari did not have testamentary capacity to make the Will.

However, the matter has also generated discussion on Sharia Law (the traditional moral and religious law of Islam) and the making of a will.

Some of the evidence put forward in the matter was that:

  1. Mrs Omari was aware that she was making a will in accordance with Islamic faith and traditions.
  2. The Will was prepared by one of Mrs Omari’s sons using a precedent by a former imam.
  3. A practicing Muslim was obliged to make a will according to Islamic guidelines.
  4. That the standard expectation is that a Muslim will leave full shares to sons and half shares to daughters.

Because the judge found that Mrs Omari lacked testamentary capacity to make the Will, and that her Will was invalid, there was no need to address whether Mrs Omari’s Will adequately provided for all of her children, or whether it was fair. However, the judge did accept some of the evidence in relation to the expectations within the Muslim faith as to how an Estate will be divided where the Will maker has children.

The matter highlights the importance of:

  1. Testamentary capacity when making a Will;
  2. Making sure that a Will maker understands their Will;
  3. The intention of the Will maker.

Whether a Will maker is making a Will based on cultural, religious, family or other considerations, the intention of the Will maker should be clearly outlined. This should be done in the Will and also through a further Statutory Declaration. If these intentions and the reasons for those intentions are not clearly set out by the will maker, a court will look at the following when deciding how to divide an Estate:

  1. The Will;
  2. The intentions of the Will maker;
  3. The assets of the Estate; and
  4. The personal and financial circumstances of the beneficiaries.

This could result in an outcome which is very different to what the Will maker intended and what a beneficiary may have expected under the Will.

If you would like to discuss the preparation of your Will, have been left out of a Will, or if you would like to update your Will to more clearly set out your intentions, please do not hesitate to contact me. It is important to consider cultural and religious considerations when making a Will.

Share to your network

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

Subscribe to our Newsletter

Subscribe to our newsletter to get updates on everything Wills, Estates and Probate.

Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now