Contesting a will based on cultural and religious considerations

Published 23 Aug 2016

NSW is truly multicultural, with people of all walks of life and beliefs inhabiting the state. Bearing this in mind, we must consider how can cultural and religious considerations affect people if they are contesting a will.

A case in the ACT in 2012 generated an interesting discussion in regards to Sharia Law the traditional moral and religious law of Islam. The case of Omari v Omari saw the validity of the deceased’s will challenged by one of her daughters. The challenge was based on the grounds that Mrs Omari lacked the capacity necessary to make her will.

The evidence presented claimed that:

  • Mrs Omari was fully aware her will was made comparatively with Islamic faith and traditions.
  • One of Mrs Omari’s sons prepared the will based off precedent set by a former Imam.
  • It was well-known that it is Islamic tradition that a Muslim leaves full shares to sons and half shares to daughters.

Displaying awareness and understanding of religious beliefs

The judge in this case found Mrs Omari lacked the capacity to make the will, which was therefore invalid. Due to this, it was ruled that there was no need to address whether or not the will was fair or if it provided for all of the children in an adequate manner.

It’s important to emphasise the judge ruled in favour of the will being invalid on the basis that Mrs Omari lacked the capacity to write a will due to her suffering dementia, not because the will followed Sharia principles.

While the findings were unrelated to the religious beliefs of those involved, this case the importance of displaying a knowledge of the processes involved with inheritance disputes regardless of the surrounding circumstances.

Seek support when making a will

Cases such as this, regardless of religious or cultural beliefs, underline the importance of seeking help when drawing a will. At Gerard Malouf and Partners we have over 30 years experience of providing information and advice on contesting wills to the community.

If you or a family member need help or advice when it comes to disputing a will, get in touch with the experts today. We offer a No Win No Fee service that guarantees you get the best lawyers working tirelessly for you, to deliver the right results.

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