Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253

Supreme Court of NSW|2024-02-05|Before: Lindsay J

een v Frackelton (1909) 8 CLR 673 Nicol v Chant (1909) 7 CLR 569 Omari v Omari [2014] ACTSC 202; (and on appeal) [2016] ACTCA 16; 14 ASTLR 23 Osborne v Smith (1960) 105 CLR 153 Re Allen [1922] NZLR 218 Re Benjamin [1902] 1 Ch 723 Re Estate Wilson, deceased [2017] NSWSC 1; 93 NSWLR 119 Riccardi v Riccardi [2013] NSWSC 1655; (2013) 11 ASTLR 198 Scales Case (1962) 17 CLR 9 Scandrett v Dowling (1992) 27 NSWLR 483 Sgro v Thomson [2017] NSWCA 326 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 Steinmetz v Shannon (2019) 99 NSWLR 687 Tatham v Huxtable (1950) 81 CLR 639 Towns v Wentworth (1858) 11 Moo PCC 526; 14 ER 794, 800 Vigolo v Bostin (2005) 221 CLR 191 Wylde v Attorney-General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224 Texts Cited: ALRC, Matrimonial Property Report No 39 (1987) An Introduction to Shi'i Islam (Yale University Press, 1987) Asmi Wood, "Splitting Heirs - Succession between Two Worlds: Australian Law and the Sharia", in Abdullah Saeed and Helen McCue (eds), Family Law and Australian Muslim Women (Melbourne University Press, 2013) Australian Dictionary of Biography (ADB) Volume 1 Christopher M Blanchard, Islam: Sunnis and Shi'ites in CD Malbouisson (Ed), Focus on Islamic Issues (Nova Publishers, 2007) AWB Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature" (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson's Legal Theory and Legal History: Essays on the Common Law (Hambleton Press, London, 1987) Concise Australian Legal Dictionary (6th ed, 2021 LexisNexis, Australia) Brooke Thompson, "Family Provision and Islamic Wills: Preserving the Testator's Wishes Through Testamentary Arbitration?" (2023) 46 UNSW Law Journal 2005 Brooke Thompson, "Navigating Dual Legal Systems: Islamic Inheritance Law in Australia's Secular Legal Framework" (2022) 41 University of Queensland Law Journal 89 Elizabeth Butler-Sloss and Mark Hill, "Family Law: Current Conflicts and Their Resolution", published as Chapter 7 of RG Jones (ed) Islam and English Law: Rights, Responsibilities, and the Place of Shari'a (Cambridge University Press, 2013) G E Dal Pont, Law of Succession (LexisNexis, Australia, 3rd edition, 2021 Ghena Kayem, Islamic Family Law in Australia: To Recognise or Not to Recognise (Melbourne University Press, 2014) Halsbury's The Laws of England (subtitled "A Complete Statement of the Whole of Law of England" containing in Volume 11 of the first edition, 1910) Hamid Khan, The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries (Oxford University Press, 3rd edition, 2007 Jamila Hussain, Islam: Its Law and Society (Federation Press, Sydney, 3rd edition, 2011) Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020) JD Heydon and MJ Leeming (ed), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 8th ed, 2016) John M. Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974) Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Every Day Experiences in Mamluk Egypt (Oxford University Press 2011) MB Voyce, in "The Impact of the Testator's Family Maintenance Legislation as Law and Ideology on the Family Farm" (1993) 7 Australian Journal of Family Law 191 Malcolm Voyce, "Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?" (2018) 12 Contemporary Islam 251 Mona Atia, Building a House in Heaven: Pious Neoliberalism and Islamic Charity in Egypt (University of Minnesota Press, Minneapolis, 2013) Moojan Momen, An Introduction to Shi'i Islam (Yale University Press, 1987) Prue Vines, "Cultural Negotiation of Inheritance Law in Australia" in Kit Barker, Kate Faulkner and Andrew Fell FE.L (Eds), Life and Death in Private Law (Hart Publishing, Oxford, forthcoming, 2024) Peter Young AO, Clyde Croft KC and Megan Smith, On Equity (Lawbook Co, Sydney, 2009) Richard Burn, Ecclesiastical Law (H Woodfall and W Strahan, 1763) Rosalind Atherton (Croucher) in D Kirkby (Ed), Sex, Power and Justice: Historical Perspective of Law in Australia (Oxford University Press, Melbourne, 1995) Rosalind Croucher and Prue Vines, Succession: Families, Property and Death (6th ed, 2024 LexisNexis, Australia) Scott Edgar, "The Five Pillars of Islam in the Hadith" (2002) 2 Studia Antique 71, 73 Sir William Blackstone, Commentaries on the Laws of England (9th "received" edition, London, 1783) The Ecclesiastical Law of the Church of England (Sweet and Maxwell, London) The Intersection of the Australian Law and the Islamic Faith (Judicial Commission of New South Wales, 2015 and updated 2021, Governor of NSW, Her Excellency the Hon Margaret Beazley AC KC) The Oxford Dictionary of the Christian Church (4th edition, Oxford University Press, 2022, edited by Andrew Louth) Timur Kuran, Islam and Mammon: The Economic Predicaments of Islamism (Princeton University Press, 2010) Toby Matthiesen, The Caliph and the Imam: The making of Sunnism and Shiism (Oxford University Press, 2023) Wael B Hallaq, Shari'a: Theory, Practice, Transformations (Cambridge University Press, 2009) Category: Principal judgment Parties: Plaintiff: Tamara Jayne Goodwin in her capacity as administrator of the estate of the Late Ahmed Abou-Khalid Representation: Counsel: Plaintiff: H Morrison and D Yazdani

Solicitors: Plaintiff: Glass Goodwin File Number(s): 2023/00348425

INTRODUCTION

This judgment calls for consideration of the proper construction, and operation, of a provision in a will, ostensibly prepared in accordance with "Sharia law" relating to "Zakat", a distinctly Islamic form of charitable donation.
That, in turn, requires consideration of the nature of "Sharia law" and points of intersection between Sharia law and the general law of succession applicable to a man who died domiciled in New South Wales, leaving property in the State (and only in the State) under the administration of a legal personal representative (an independent solicitor, not related to the deceased) to whom letters of administration with the will annexed were granted by the Court upon an exercise of its probate jurisdiction when, for one reason or another, the executors named in the will (personal friends of the deceased) were unavailable to administer the estate.
The summons filed by the administrator relies upon the jurisdiction of the Court under rule 54.3 of the Uniform Civil Procedure Rules 2005 NSW to make orders for the partial administration of an estate and under section 63 of the Trustee Act 1925 NSW to provide judicial advice.
These two heads of jurisdiction are complimentary. Each provides a vehicle for a determination of the question ultimately stated for the Court's attention in the Statement of Facts filed in support of the summons: Whether the administrator would be justified in distributing the whole of the estate of the deceased without applying any part of the estate towards payment of Zakat in accordance with a direction in the will of the deceased.
These reasons for judgment explain why, in the circumstances of this case, a management order should be made for the protection of the administrator and for the information of the deceased's beneficiaries, at whose instigation the administrator has applied to the Court for guidance.
In an insightful paper entitled "The Intersection of the Australian Law and the Islamic Faith", first published in 2015 and updated on the website of the Judicial Commission of New South Wales in 2021, the Governor of NSW, Her Excellency the Honourable Margaret Beazley AC KC, cautioned individuals who arrange their affairs in accordance with religious or cultural practices of a need to ensure that the formal requirements of Australian law are met in order to protect their interests.
Her Excellency examined a selection of cases that served as a foundation for the following observations: "The separation of Church and State is as fundamental to the Australian legal system as is the rule of law itself. That said, religion often underlies the way in which various sections of our community function, both within that particular grouping and more broadly. While religion is undoubtedly intended to pave the way to Heaven for us mortal beings, it is often central to a person's morals, behaviours and sense of identity on this earth. Importantly for the law, religion may order the ways in which a person organises his or her worldly affairs. … [Individuals] who arrange their affairs in accordance with religious or cultural practices cannot afford to ignore Australian civil law in doing so. It is up to each individual or organisation to take responsibility for ensuring that the formal requirements of the law are met in order to protect their legitimate interests. … Australia is a multicultural, multi-faith society and a significant proportion of the population organises their affairs in accordance with cultural practices or principles derived from their religion. When such principles assume relevance in matters that come before the courts, courts will only interfere where there is some inconsistency with Australian legal principle. To put it another way, legal documents are not held invalid because they are drafted in accordance with the tenets of a religion, but because of legal invalidity. … [The courts are willing] to engage with cultural and religious practices where they assume importance as facts relevant to the determination of the particular case. … [Despite] a perception that Islam and the Australian law are incompatible, this is not borne out by the case law. Problems will arise where no attempt is made to ensure that there is compatibility. That is different from saying that the laws cannot operate harmoniously because the 'rules' differ. … [When] individuals choose to organise their affairs in accordance with religious principles, rather than ignoring the Australian law, they should ensure that their interests are also adequately protected in accordance with Australian law …"

THE NATURE OF THE PROCEEDINGS

By a Summons filed on 2 November 2023 the administrator of a deceased estate seeks in these proceedings (as the plaintiff on an ex parte application but on notice to the deceased's beneficiaries) the guidance of the Court about the proper construction and management of an unarticulated testamentary direction to pay "Zakat payments".
The Summons is supported by a formal Statement of Facts (required by rules of court); affidavit evidence; written submissions of counsel, incorporating a formal expression of their opinion on questions raised by the Summons; and research materials located by the administrator and her legal representatives. I acknowledge the assistance I have been given by each of the administrator, her solicitors and counsel.
My treatment of the subject matter of these proceedings is directed to a legal analysis, upon the particular facts of a particular case, and evidence presented in support of the summons. I have endeavoured to give effect to the general law governing the administration of a deceased estate in NSW, sitting in the "armchair" of the deceased (as may be required to see the world through his eyes), conscious of the testamentary freedom, limited by the Court's family provision jurisdiction as it may be, recognised as enjoyed by an individual living, and dying, in community.
I am obliged to consider the nature of "Sharia law" and "Zakat" under Australian law because of the language of the deceased's will; extrinsic evidence that confirms an intention on his part, implicit in the will, to give effect to his understanding of Sharia law; and a submission made on behalf of the administrator that the testamentary provision in the deceased's will authorising and directing the administrator, as the deceased's legal personal representative, "to pay … Zakat payments" is void for uncertainty.
Whether that provision of the deceased's will is invalid for uncertainty depends on what the expression "Zakat payments" means on a proper construction of the will taking into account the meaning and operation of "Sharia law" in the deceased's Islamic community.
Importance may attach to identification of a testator's particular Islamic community because of the diversity of communities within the global or national community of persons who share an Islamic faith. Australian Muslims represent an exemplar of this because of a variety of cultural traditions they each enjoy from their family's particular place of origin within a world-wide setting. Differences between Sunnism and Shi'ism are perhaps the most prominent example of differences within a common cause; but, in Australia, Islamic communities are free, within the general community of Australia, to gather together, to coalesce and to stand apart as they may be moved to do. The general law endeavours to respect the individual living, and dying, in his or her community.
If the deceased's will means that the administrator is authorised and directed to make "Zakat payments" unconnected with a commitment made by the deceased during his lifetime and unenforceable against his estate at law or in equity, then a finding of uncertainty must be on the cards. That said, nothing explicit in the will supports a finding that the deceased intended to confer on his legal personal representative the function of making unconstrained discretionary "payments" of an unspecified character and value to unidentified parties for a particular purpose or purposes of an indefinite nature.
On the other hand, if the deceased's will, upon its proper construction, intends that the "Zakat payments" payable by his legal personal representative are those enforceable against his estate at law or in equity, by reason of a commitment made by him during his lifetime, then the will is not in any sense void for uncertainty because an obligation to make "Zakat payments" of that nature is not different in kind from an obligation on the legal personal representative to pay "debts" as directed in the same provision of the will that requires the legal personal representative to consider making "Zakat payments".

CONCEPTUAL ISSUES IN OVERVIEW

A Sharia law scholar might question whether a "Sharia will" is "valid" under Australian law (as suggested by the title of Malcolm Voyce's paper, "Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?" (2018) 12 Contemporary Islam 251). On closer examination a more precise question is whether a will that is valid under Australian law can be made in terms that comply with Sharia law? Whatever their precise formulation, both questions invite inquiry about the meaning of "Sharia law" in its intersection with Australian law.
"Sharia" is the code of conduct or law of religion of Islam. It is perceived to be a metaphor for achieving salvation for God's ordained total way of life.
The ultimate sources of Sharia law according to its Islamic proponents are two publications considered by Muslims to be sacred scripture. The first is the Qur'an, a holy book recording revelations received by the Prophet Mohammed from God. The second is the Sunna, a compiled record (including but not limited to entries of a legal nature) of words, deeds and actions of Mohammed, and his implicit approval or disapproval of others' actions around him.
The territory occupied by the concept of "Sharia law" within an Islamic community is described in the following terms in Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020) (footnotes omitted): "The contention of this book is that Islam in different parts of the world, including in Australia, is more than just a religion, a cultural system or a social structure: it is existentially a complex composite of diverse institutional processes and functions, social routines and norms, and sacred rituals and practices responsible for shaping the lives of Muslims. Furthermore, Muslims are more than a product of their religion. While there are some cultural norms common to most Muslim societies and periods that originate from religion and common historical locus, to assume that the ideas and practices embodied in these norms - such as the clergy class - are sociopolitically constant is far from correct. In fact, they are assigned diverse meanings and roles by sociopolitical contexts. The large variety of social and political forms to be found historically and in the present time cannot be explained as differences in a common model of an ideal Muslim society. They are explicable only in terms of the normal practice of social and political examination that considers change as a constant in all societies. [page 4]. Thus, Islam is not a unified or monolithic religion. This has been abundantly demonstrated in numerous sociological studies of Islam and Muslims. Discussing Islam particularly in the contemporary context, Gabriele Marranci states that 'Hence, since interpretations are multiple, the personal embodiments of Islam are likewise multiple. It is not Islam that shapes Muslims, but rather Muslims who, through discourses, practices, beliefs and actions, shape Islam in different times and spaces. [page 4]. Language, culture, tradition, and the political and social contexts in different geographical locations certainly play an important role in making Islam eclectic. Also important are the numerous sectarian groups, theological clusters and legal schools and their interpretations, which add to Islam's further eclecticism. Islam is a religion based on sharia (Islamic law) but variations in interpretation of the law abound, contributing to both local and regional differences in what constitutes 'Islamic' practices. [page 4] … Islam is a complete way of life with its own sharia (legal system). [Page 5] … As a legal system of Islam, sharia is a corpus of rules, considered to be of divine origin, implemented by practising Muslims to govern their 'ibadat (private worship) and mu'amalat (social relations and human transactions). Abdul Ansari confirms this: 'In its restrictive sense, the Sharia comprises rules governing relations between man and Allah …, commonly known as rules of ibadat, and rules governing human relations and human behaviours, commonly known as rules governing muamalat'. This set of rules specifies the directions and regulations that govern the lives of faithful believers, and also encompasses moral and spiritual values. Sharia does not separate matters relating to this world from those relating to the hereafter, and the sacred and the profane constitute one whole universal complex. [Pages 95-96] … One very key problem in [a discussion about the role of Sharia in Australian law] is what Muslim leaders and activists and Muslims in general from different ethnic, parochial, sectarian and ideological backgrounds mean by sharia. [page 96]. For some, it is 'God's law' or 'revealed law' and by nature essentially a non-negotiable text-based law originating from the sacred sources - the Qur'an and Sunna (words, deeds and actions of the Prophet Mohammed, and his implicit approval or disapproval of others' actions around him) - and whose authority lies outside human purview and certainly outside the authority of a modern nation-state. Those with this view, then, present sharia as a set of immutable rules designed by God that cannot be compatible with democracy and modernity, which operate under human-made legal systems: 'The shari'a, according to this line of thought, is the revealed law of God and is, therefore, the perfect set of rules for human conduct, which needs no supplementation by man-made laws.' [Page 96] … … [There are] several understandings of the nature of sharia. Some Western scholars take the view that after sharia's formative and classical periods of development, it ceased to evolve. Some say, for instance, that in the late Mamluk and Ottoman periods and through much of Islamic history, it was not the specific solutions or legal rulings that were considered critical but how solutions were developed and decisions were taken within the generally accepted framework of thought, utilising commonly accepted intellectual know-how and methods. [Page 97] Discussion of sharia is now much more complex and contested, not only at intellectual, legal and theological levels, but also it social, cultural and political levels. Muslims who are seeking to keep the practice of sharia alive today fall into two categories. The first is conservative traditionalists: Muslim ideologists, sometimes referred to as Muslim puritans, who seek to keep sharia 'fixed'. The second is secular modernists, or Muslim moderates, who want to see sharia undergo reform. The latter are divided into two groups. One is often described as modern secularists: they substantially advance more inclusive, pluralistic and vibrant civil societies with an understanding of sharia as a flexible and time/space-friendly legal system. The other is portrayed as critical-progressive Muslims with a broad-based outlook on contemporaries Islam: they focus on reinterpreting normative Qur'anic teachings in light of a global viewpoint and in a way that promotes the wellbeing of people in accordance with their specific context. [page 97] …
Perhaps the nearest equivalent in a Christian setting to "sharia law" as thus explained is the concept of "canon law", described in The Oxford Dictionary of the Christian Church (4th edition, Oxford University Press, 2022, edited by Andrew Louth) in the following terms, informed by a scriptural canon of the Old and New Testaments of the Bible and writers of early "fathers" of the Christian Church: "Canon law. The body of ecclesiastical rules or laws imposed by authority in matters of faith, morals and discipline. This corpus of law grew up very gradually. Its beginnings are to be traced to the practice of convening Councils to settle matters of uncertainty or dispute and their issue of a considerable number of ad hoc pronouncements on matters of doctrine and discipline. Such pronouncements had varying degrees of authority, [according] to the importance of the Council and the area of the Church which it represented … Together with laws accepted as universally binding, there have always been others of only local authority …"
There is a vast pool of literature on the meaning, terms and operation of "Sharia law" throughout the world, including scholarly works about the intersection between Sharia law and various national, secular legal systems viewed, particularly, from an Islamic perspective. There is, however, a dearth of Australian case law dealing with the meaning of "Sharia law", a "Sharia will", a "Sharia-compliant will" or (inter vivos or testamentary) zakat.
In her paper entitled "Family Provision and Islamic Wills: Preserving the Testator's Wishes through Testamentary Arbitration?" (2023) 46 UNSW Law Journal 205 at 216, Brooke Thompson maintains that "[the] only Australian case to consider an Islamic will" is Omari v Omari [2014] ACTSC 202; (and on appeal) [2016] ACTCA 16; 14 ASTLR 23. That appears to be the common view of other commentators on Islamic law and nothing to the contrary has emerged during these proceedings. Although the case demonstrates the dynamics of an Islamic family with different perspectives of enforcement of a contested "Islamic will", in default of which a testatrix would die intestate, the legal issue upon which the case turned was whether or not the testatrix had testamentary capacity, which the Court found she did not.
In preparing this judgment my attention has been drawn to several books and articles relating to the nature and content of "Sharia law" and its intersection with Australian law. These are the principal ones, listed by author in alphabetical order: Jan A Ali, Islam and Muslims in Australia: Settlement, Integration, Shariah, Education and Terrorism (Melbourne University Press, 2020); Wael B Hallaq, Shari'a: Theory, Practice, Transformations (Cambridge University Press, 2009); Jamila Hussain, Islam: Its Law and Society (Federation Press, Sydney, 3rd edition, 2011); Hamid Khan, The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries (Oxford University Press, 3rd edition, 2007); Ghena Kayem, Islamic Family Law in Australia: To Recognise or Not to Recognise (Melbourne University Press, 2014); Moojan Momen, An Introduction to Shi'i Islam (Yale University Press, 1987); Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Every Day Experiences in Mamluk Egypt (Oxford University Press, 2011); Brooke Thompson, "Navigating Dual Legal Systems: Islamic Inheritance Law in Australia's Secular Legal Framework" (2022) 41 University of Queensland Law Journal 89; Brooke Thompson, "Family Provision and Islamic Wills: Preserving the Testator's Wishes Through Testamentary Arbitration?" (2023) 46 UNSW Law Journal 2005; Prue Vines, "Cultural Negotiation of Inheritance Law in Australia" in Kit Barker, Kate Faulkner and Andrew Fell (eds), Life and Death in Private Law (Hart Publishing, Oxford, forthcoming, 2024); Malcolm Voyce, "Islamic Inheritance in Australia and Family Provision Law: Are Sharia Wills Valid?" (2018) 12 Contemporary Islam 251; and Asmi Wood, "Splitting Heirs - Succession between Two Worlds: Australian Law and the Sharia", in Abdullah Saeed and Helen McCue (eds), Family Law and Australian Muslim Women (Melbourne University Press, 2013).
From reading this material I have become aware that a number of solicitors are said to have developed a practice of promoting their professional services by claiming expertise in the preparation of a "Sharia will". I have not been provided with empirical evidence of this and, accordingly, I am not to be taken to have endorsed, or criticised, claims by particular solicitors of expertise in "Sharia law". I do, however, counsel caution against dogmatic claims of expertise in an area of law at the intersection of "law" and "religion" which, because of diversity within Islamic communities, is inherently uncertain unless tied to a particular tradition in the particular community of the person who seeks to make a will.
If (as appears to be the case) a scheme for the distribution of estate assets traditionally favoured by some Islamic communities is at the core of what is meant by a "Sharia will", and if the exercise of making a will is one that requires a testator to act in consultation with his or her family, a solicitor needs clear boundaries to be drawn in identifying his or her client, limiting the possibility that a disappointed beneficiary might look to the solicitor for compensation: cf, Hill v Van Erp (1997) 188 CLR 159. A solicitor needs to ensure that the testator is fully informed about the potential operation of the Court's family provision jurisdiction, including its jurisdiction under Chapter 3 of the Succession Act 2006 NSW to make an order for the designation of property as notional estate. The complexity of what is said to be a traditional Islamic system of inheritance law invites caution in a simple representation of an ability to draft a "Sharia compliant will".
There is, at least, doubt about whether there is a settled concept of a "Sharia compliant will". To the question, "Is this a Sharia will?" the appropriate response might be: "Who wants to know and for what purpose?"
Questions like these may need to be addressed because the issues they raise, and any answers to them, may depend upon the estate planning arrangements of a prospective testator and the potentially different perspectives of his or her immediate family (spouse and children, including adopted or ex nuptial children who might be excluded from benefits under a "Sharia will"), members of his or her extended family (who might have expectations of benefit under a "Sharia will") and dependents and charities who might have an expectation of, or a perceived need for, testamentary recognition.
If (but, perhaps, only if) a testator's wealth justifies the expense and administrative inconvenience of legal structures like a "family trust" or a "family company", and he or she is prepared to cede ownership or control of property in anticipation of death, he or she might, in life, distribute property in a way that represents a just and fair outcome for his or her family (however defined) not constrained by a forced succession style of will commonly associated with the concept of a "Sharia will".
A lawyer advising an observant Muslim about the management of his or her property in anticipation of death needs, at that time, to be able to look at his or her client's personal circumstances in terms of past experience, the present state of affairs and the likely future course of the inheritance process within the client's family, however defined. Likewise, a lawyer acting for the legal personal representative of a deceased observant Muslim needs to be able to look at that process in retrospect in order to appreciate nuances that might be at the core of tensions between the general law of succession and the experiences, and expectations, of the deceased's family, be they themselves observant Muslims or not.
There appear to be three points of intersection between "Sharia (Islamic) law" and the Australian law of succession, which may require careful management by those engaged with an observant Muslim who seeks to make a "Sharia will" to accommodate the religious views of his or her community or in administration of the estate of such a person. They are not unique to an Islamic community but might be encountered in connection with any community in which individuals who are part of the community live with an expectation (of themselves and others) that idiosyncratic inheritance rules govern the administration of a deceased estate.
The first point of intersection (perhaps the most difficult for a legal advisor) occurs during a phase of estate planning when it is necessary to identify a testator's community, the inheritance rules customarily associated with that community, and interests that may be affected by the death of the testator (which may or may not involve consultations with others than the testator) so that he or she can make an informed decision about whether or not to make a will and the terms of any will that might be made, to die intestate, or to effect inter vivos transactions in order to manage or circumvent customary inheritance rules.
The second point of intersection occurs during the administration of an intestate estate should an individual (by choice or otherwise) be found to have died without a will. This may or may not involve management of a community's expectations about who should administer the estate and whether beneficiaries under statutory rules for the distribution of an intestate estate should make concessions to others who may have a claim on the deceased's bounty according to customs of the community. A person who chooses to die intestate should perhaps be cautioned against unwittingly leaving a written explanation of his or her decision to die without a will lest it be advanced by an interested person as an informal will.
The third point of intersection occurs when decisions must be made about whether an application for a family provision order should be made or opposed, whether any persons outside the class constituted by the immediate family of the deceased, his or her beneficiaries and persons eligible to make a family provision application should be consulted, and whether it is or is not forensically prudent to raise an issue about the operation of customary law which might involve expense and delay not cost effective or warranted in the due administration of a deceased estate.
Although it may be given short shrift in a secular court unless backed by a legal instrument that facilitates its implementation there is at least a school of thought in Islamic circles that the inheritance rights of members of an Islamic community arise on death automatically and without a will: eg, Ebrahim Iqbal Lambat, Australian and Islamic Laws of Inheritance: Parts I-IV (Lambat Trust, Brisbane). (A similar school of thought can be found in Jewish inheritance law.)
Under a heading "Gifts During Your Lifetime", Lambert gives the following advice to an Islamic audience: "Under Islamic law, as the owner, you have total discretion over your assets whilst you are alive. You can gift those assets to whoever you choose and the potential heirs have no say at all - they cannot restrict your freedom of disposition. Under Islamic law this freedom of disposition is only lost while you are dying or in the final stages of terminal illness to protect the rights of your heirs (death sickness). However, you have a duty to be just to your children by treating them equally. The Prophet (PBUH) gives a general order to all Muslims: 'Fear Allah and treat your children fairly'. In other words, he makes fair treatment of children part of being conscious of one's duty toward Allah and fearing him. In another hadith [a report of the sayings or traditions of the Prophet], it is related that the father of An-Nu'man ibn Bashir, a young Companion of the Prophet (PBUH) came to the Prophet (PBUH) and said: 'I have given a slave as a gift to this son of mine and I would like you to bear witness to that.' The Prophet (PBUH) asked: 'Have you given all your children similar gifts?' When the father answered in the negative, the Prophet (PBUH) said: 'Seek some other witness for your deed, because I do not witness injustice.' Based on this hadith, many scholars have ruled that it is forbidden for a father to give a gift to some of his children in a way that makes him prejudicial against others." …
It may be unwise for solicitors and testators to label a will as a "Sharia (compliant) will" because to do so may invite disputes about the extent to which, if at all, contested views about the nature and content of "Sharia law" should be taken into account in the administration of a deceased estate.
Where competing claims to an estate are based purely on claims of "religious obligations" they might not be justiciable according to the general law of a secular court. However, if a claim is made in contract or in equity (eg by means of a claim in estoppel) evidence of religious beliefs may have a role to play in determining the nature, intent and expectations attaching to a promise or representation relating to the management or future disposition of property.
Despite an acknowledged diversity of views about the meaning and proper interpretation of Sharia law commentary is sometimes marked by an undercurrent of separatism which appears, in part, to be the product of religious enthusiasm in a world experiencing an evangelical revival of the Islamic faith. In dedication to religious tradition some commentators imagine difference instead of seeing similarities within the broader community in which Islamic communities live.
Engagement with the local community is also limited by the use by Islamic scholars, teachers and worshippers of a culturally conditioned language (including a wide variety of spelling of even basic words) in describing the Islamic faith (which suggests a need for special knowledge) rather than the vernacular of the particular local community within which an observant Islamic family lives. This is not unique to Islam. Over the centuries since the Vulgate Latin Bible ceased to speak to readers in their own language, many Christians (notably Roman Catholics) have clung to a supposedly "dead" language. Even closer to home, many Christians still cling to the Shakespearean language of the King James version of the Bible (1611) despite the proliferation of many "modern English" versions published since the closing decades of the 19th century.
The meaning of "Zakat" depends on context and the level of abstraction of any definition, as well as the administrative arrangements for its collection, administration and distribution in the particular community which embraces the concept.
The historical and functional importance of Zakat cannot be underestimated. Historically, it lies at the heart of the schism between Muslims represented by the Sunni and Shii sects as, for example, noted by Toby Matthiesen, The Caliph and the Imam: The Making of Sunnism and Shiism (Oxford University Press, 2023) at page 43: "The Caliphs maintained that the alms tax, Zakat, should be paid to them and then centrally distributed to the poor. Given the Shii distrust towards the early Caliphs and Sunni' dominated States, their clerics argued instead that Zakat should not be paid to the State but to the clerics as the representatives of the Imam. The result was a community-centred political economy of piety, in which a special religious tax, amounting to 1/5 of one's annual surplus income, funded the religious and social welfare infrastructure of the clergy. This allowed Shiism, and its clergy, to survive periods of Sunni reassertion [footnotes omitted]".
The meaning of Zakat cannot be determined without placing it within the broader concept of Sharia law, which views inheritance law as including arrangements for the management of property within a family antecedent to death and, upon death, succession to property within a family, imagining that although property may be held by an individual member of family he or she holds it (in a religious sense) on trust for the family.
The meaning and legitimate operation of Sharia law in an Australian context cannot be determined, at least in relation to inheritance law, unless it is placed (conceptualised) within the context of the general law governing a religious community operating as a voluntary association and recognised, in essence, as "the rules" of "a club" of like-minded people. Depending on context, and the form such "rules" take, they could equally be called "religious customary law".
This is a point which may not have been fully appreciated in conversations about the place of "Sharia law" in the Australian legal system, despite the deployment of corporate structures within the Islamic community for local mosques and regional representative bodies.
Through the deployment of voluntary associations, local and regional communities can accommodate their particular and shared religious beliefs and practices, providing for continuity and change from which a broadly based consensus might emerge and differences might be managed.
In Attorney General Ex rel Elisha v Holy Apostolic and Catholic Church of the East (Assyrian) Australia NSW Parish Association (1989) 98 ALR 327 at 348; 95 FLR 392 at 412-413 Young J (a leading Australian authority on law and religion) adopted as convenient for analysis of different models of church governance a scheme distinguishing between the "Hierarchical", the "Presbyterian" and the "Congregational".
The Hierarchical model is one which has a superior clergy and in which the government of the church is committed to those superior clergy. The "Presbyterian" model is where there are a succession of committees at national, regional and local level, so that a decision of the local congregation may, in appropriate cases, be overturned by that of a general assembly. With a "Congregational" model, the local congregation is the body which makes or unmakes the rules.
Accepting that Islam has no "clergy" or religious authority akin to those who serve a Christian church, that religious specialists in Islam do not practise sacramental or priestly functions, and that Muslim clerics do not serve as intermediaries between human beings and God but principally serve as teachers, guides, judges and community leaders (Jan A Ali, Islam and Muslims in Australia, page 116), the centrality of a local mosque to the lives and worship of observant Muslims suggests that a standard model for the governance of an Islamic community in Australia is "Congregational" in character as adherents gather together with like-minded believers within a broader, more diffuse Islamic community.
In court proceedings concerning members of a religious community the nature and effect of the obligations of a member of the community (a voluntary association) must generally be established by evidence or admissions: Scandrett v Dowling (1992) 27 NSWLR 483 at 491B-E. The law recognises in this way that in the determination of a particular controversy the facts of the case are of central importance.
In an Australian context, Sharia Law takes its colour from local communities, each member of which, by dint of his or her membership, may be required to submit to the religious practices of his or her particular community, may be excused from doing so or may cease his or her membership, moving on to another community. This, at least, reflects the essence of a voluntary association of co-religionists: Scandrett v Dowling (1992) 27 NSWLR 483 at 522F.
Core problems in working out the correct metes and bounds of Zakat and Sharia law as abstract legal concepts in a general law setting (as distinct from religious obligations) include the following: 1. there is an inherent uncertainty about whether any particular person (and, if so, who) has a definitive role in the collection, administration and distribution of Zakat within an Islamic community. 2. there is an inherent uncertainty as to whether Zakat is to be conceptualised as an allocation of resources to particular purposes or as an allocation of resources to particular classes of people. 3. there is an inherent uncertainty as to whether Zakat is limited to purposes that are benevolent or whether it can properly be applied to other purposes, such as those that are exclusively political (for example, at an extreme, in support of war). 4. in the context of the administration of a deceased estate (especially, but not only, in a case in which there is a testamentary direction to "pay Zakat") it is necessary to consider the relationship between a commitment to the payment of Zakat (as a means of assisting those in need) and what is perceived by some commentators to be a Sharia law requirement to comply with a system of forced succession that, by fixing the proportions of a deceased estate distributed within a family, systematically (inter alia) favours sons over daughters regardless of need, based upon an assumption that males will look after females and females have no need to look after anybody but themselves. 5. the nature of Sharia law (and hence of Zakat as an integral part of Sharia law) needs to be tested against apprehension on the part of Islamic scholars that, in the context of administration of a deceased estate, there is a fundamental conflict between Sharia law and the family provision jurisdiction of the Court. 6. although the inheritance rules affecting the balance struck by Sharia law between immediate and other family members, and between sons and daughters, of a deceased person are sometimes said to be immutable (because prescribed by the Qur'an as divine law) that view does not sit comfortably with the fact that several jurisdictions in good standing within the worldwide Islamic community are said to have legislated changes to those inheritance rules, inviting the question why should a secular court be constrained in pursuit of a just outcome reached after debates on the facts of a particular case?
The nature of Sharia law (and, incidentally, that of Zakat) is revealed in part by concerns expressed by some commentators on Sharia law about its intersection with the family provision jurisdiction of the Court.
Those concerns invite the following observations: 1. Concerns about the operation of the family provision jurisdiction in its displacement of a testator's arrangements for his or her family are not unique to Islamic families, but are shared by sections of the general community, not excluding judges. 2. There appears to be resistance on the part of some commentators who favour Sharia law to observant Muslims having to submit to a decision being made about their family's inheritance arrangements by a judge who is not, or may not be, an observant Muslim. 3. Criticism of family provision legislation is conceptualised in terms of standard glosses on the legislative text common among legal practitioners ("moral duty" and "need") rather than focusing on the text itself, thereby setting up a false conflict between family provision principles and Sharia law. Cf, Vigolo v Bostin (2005) 221 CLR 191 at 204, 230. 4. Criticism of the family provision legislation appears to assume that the primary object of the legislation was to impose a general community based "moral" obligation on testators whereas, in historical fact, a major public policy objective of the legislation has long been to protect public resources from the social security ramifications of a testator not providing adequate provision for persons dependent upon him or her. The family provision jurisdiction is viewed by its critics as focused exclusively on a moral dimension of family relationships (which justifies resistance to an application of "community standards" not exclusively those of a particular family) without regard to a major public policy reason for the jurisdiction; namely, to protect the state from having to fund those in need whose families have resources available to address need. 5. A testamentary direction to pay Zakat might have work to do upon an exercise of family provision jurisdiction in its explicit recognition that, whatever Islamic inheritance rules might say about fixed proportions for the distribution of a deceased estate, a member of the family of the deceased who is in need (and perhaps, therefore, within the class of persons who, but for fixed proportion constraints, might have a right to expect Zakat-type assistance) might reasonably be considered worthy of an award of family provision in a case not inconsistent with an imperative for justice within a family prioritised by the Qur'an as an expression of God's law.

THE LEGAL CHARACTER OF "SHARIA LAW"

The character of an obligation to pay Zakat under "Sharia law" (understood in Australia to be a religious obligation of individual conscience) invites consideration of the legal character of "Sharia law" under Australian law and its intersection with the general law.
This line of inquiry takes one, at a high level of abstraction, to questions about the enforceability of the "rules" of a religious community, based upon an adherent's conscience, unattended by a dispute about property of the community or legislative backing. Generally, there is no "established church" under Australian law and religious communities generally coalesce under a "consensual compact" falling short of a contract.
In the eyes of the law they are a "club" of like-minded "members" governed by the law relating to voluntary associations, whether incorporated (under legislation) or unincorporated. "Membership" of such a "club" might be formal, but often it is informal in the sense that its rules of practice may be largely unwritten and it includes a fluctuating group (an association) of people who adhere to, or hold, core common beliefs. The meaning of the word "membership" and its variants depends on context.
Under the general law a religious body is in the eyes of the law a voluntary association, the mutual relations and obligations of the members of which are regulated by the terms of an agreement or "consensual compact" to which they are parties: Macqueen v Frackelton (1909) 8 CLR 673 at 679; Wylde v Attorney-General (NSW) (at the Relation of Ashelford) (1948) 78 CLR 224 at 257, 275, 286, 298.
The terms of a "consensual compact" may not be enforceable in a secular court absent a need for the court to determine a civil or proprietary right in a dispute between contesting parties.
In some discussions of "Sharia law" it is presented, expressly or by implication, as an idea that it can, or should, only be administered by a separate body of people (a "court", "tribunal", "council", "board", "committee" or a religious officer such as an Imam) with whom Muslim believers identify. That idea may have currency in the context of conventions, and dispute resolution procedures, within the membership of a voluntary association of like-minded members. It has no currency in the community at large.
The genius of the common law tradition to which Australia adheres is that religious, social and political groupings of like-minded people can be accommodated within the general law by legal principles governing voluntary associations; the law of trusts (where ownership of property is involved); a public policy (subject to regulatory intervention) that leans against interference by the courts in the domestic affairs of a voluntary association unless necessary to determine a dispute about a civil or proprietary right; and, within a responsible system for the administration of justice, freedom of association, freedom of contract and testamentary freedom. These understated freedoms (underpinned by ordinary common law rules and principles of general application) provide a rock upon which human rights lawyers have built a more visible narrative in support of "freedom of religion".
In an essay entitled "Family Law: Current Conflicts and Their Resolution", published as Chapter 7 of RG Jones (ed) Islam and English Law: Rights, Responsibilities and the Place of Shari'a" (Cambridge University Press, 2013), a product of a public discussion sponsored by the then Anglican Archbishop of Canterbury Rowan Williams, Baroness Butler-Sloss (a former President of the Family Division of the English High Court of Justice) and Mark Hill QC made the following observations (at page 109), which could equally be made about the Australian legal system: "English law … applies to all cases where the parties come to the English Court for adjudication upon divorce, domestic violence, financial disputes, determination of matters of residence and contact and the family, and other 'specific issues'. The religious and cultural tradition of the parties in an English Court may, and often will, be relevant to their approach to the issues between them; but English law, and only English law, applies. Now if the members of a family choose in a dispute to involve the help of their own religious tribunals, there is no reason why those tribunals should not assist the family. The two major religious communities with their own separate legal tribunals are the Muslims with shari'a councils and the Jews with the Beth Din. A divorcing couple - both parties being of sound mind and properly advised, neither being under any sort of compulsion - might choose to reach a provisional settlement on financial arrangements and on the children's upbringing, a settlement that might well be facilitated by the mediation of the parties' lawyers, the Beth Din or a shari'a council. The English court is likely to say, 'Why interfere with the settlement?' The Court may well endorse the settlement. So the intervention of the tribunals may be very influential. But for the settlement's enforcement the terms of the settlement must pass under English law through the English courts; the decisions of religious tribunals on matters of family law are not recognised in the English courts, nor can they be enforced."
In an Australian context, Sharia law may inform the operation of Australian law, as may the rules of practice of non-Islamic religious communities, but they cannot rise above, or operate outside of, the general law.
What is spoken of as "Sharia law" in an Australian context is perhaps best understood, in a legal context, as an understanding of the rules of practice indicative of religious obligations voluntarily assumed by a participant in an Islamic community as part of the consensual compact between members of the community, not (without entry into an obligation independently enforceable at law or in equity or as may be necessary to determine a "civil or propriety right" or a dispute about property) enforceable under the general law.
In Australia, in common with "the Law" of other religious communities, "Sharia Law" is (to adopt a description of "Islamic economics" in Mona Atia, Building a House in Heaven: Pious Neoliberalism and Islamic Charity in Egypt (University of Minnesota Press, Minneapolis, 2013) at page 5), a body of knowledge and a set of practices resulting from the application of an Islamic ethical framework to legal concerns. It might inform an application of the general law but it is not itself a law of general application.

LAW, LITERATURE AND SHARIA LAW

The nature of "law" is generally reflected in literature which expounds it.
By way of example, the conceptual framework of the "common law" of England inherited by former colonies such as Australia, New Zealand, Canada and the United States of America experienced a transformation in the 19th century as the nature of legal literature changed. In an action-based system of court administration legal literature was dominated by digests of decided cases in the several courts that then exercised their separate jurisdiction to grant different remedies. With procedural changes that enabled a single court to administer several different types of jurisdiction and to grant all available remedies, and with a shift towards the provision of legal education by universities rather than merely by practitioners, action-based literature was replaced by specialist treatises expounding particular topics by reference to "scientific" principles underlying the grant of a remedy: AWB Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature" (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson's Legal Theory and Legal History: Essays on the Common Law (Hambleton Press, London, 1987).
An illustration of this shift in focus in legal literature can be seen in a comparison between the form of Dr Richard Burn's classic text The Ecclesiastical Law (in the 8th 1824 edition and the 9th 1842 edition, contemporaneous with New South Wales's reception of English law in 1828) and its successor, Sir Robert Phillimore's The Ecclesiastical Law of the Church of England, the 2nd (1895) edition of which was edited by Phillimore's son, Sir Walter George Frank Phillimore.
Each volume contains similar content, but Burn's text is presented in the form of an encyclopaedia of single topic "Titles", one of which is "Tithes". Phillimore deals with the same topic (with passages drawn directly from Burn) in structured "Parts", divided into "Chapters", divided into "Sections". "Tithes" are dealt with in Chapter 3 (entitled "Tithes and Rent Charges") of Part V, entitled "Property of the Church". Continuity in the treatment of this topic was perhaps aided by the fact that Sir Robert Phillimore edited the last, 9th edition of Burn's classic.
Traditionally, the conceptual framework of "the common law" differs from that of European and other civil law jurisdictions (based on a Roman Law tradition) which favour law in the form of written codes rather than the common law tradition of judge-made law.
Differences between the common law tradition and a civil law tradition may evolve differently than in the past because modern society demands engagement between different systems of law, across jurisdictional boundaries, in the conduct of both public and private business.
In the present context, dealing with inheritance law, the distinction between the common law tradition and a civil law tradition remains important because some expositions of Sharia law assume that it can readily be contrasted simply with law governing Western culture. In fact, in the realm of "inheritance law" Sharia law may have more in common with the civil law tradition than it has with the common law tradition to which the Australian legal system belongs.
One should also notice that some Islamic literature, mindful of the theological leanings of those who administer Sharia law, if not also an audience of Islamic believers, tends at times to express ideas in a dogmatic form which, to the world at large, may be read principally as rule-based reasoning applicable only to those who adhere to the Islamic faith and beyond rational debate. Different approaches to the interpretation of sacred texts may be taken depending on whether the perspective of the reader is that of dogmatic theology, comparative studies or historical inquiry.

"ECCLESIASTICAL LAW" AND "SHARIA LAW" IN COMPARISON

An analysis of the nature and scope of the concepts of "Zakat" and "Sharia Law" in the eyes of the general law of Australia might be assisted by an outline of a parallel experience of the Anglican Church: historically, an "established church" in England and, so, part of the State, but recognised in the 19th century as a voluntary association outside England. The parallel arises from the fact that in some jurisdictions outside Australia, Sharia Law is part of the governing law of the State, but not here.
In the leading judgment of the Court of Appeal in Scandrett v Dowling (1992) 27 NSWLR 483 at 554C-F, Priestley JA made the following observations (with editorial adaption): "In places where adherents to the faith of the Church of England had to organise their spiritual and Church related temporal affairs without the benefit of their Church law being regarded, as it was and is in England, as part of State law, there was no way by which purely spiritual matters could be dealt with by State courts lacking ecclesiastical jurisdiction. The binding effect of [a] 'voluntary consensual compact' … must therefore necessarily have come from something other than the enforceability of such compact or contract in State courts. The bindingness must have come from the shared faith of the members of the Church … The basis of the consensual, compact or contract thus must be a willingness to be bound to it because of shared faith, or, in the Latin phrase used in some of the [evidentiary material before the Court], in foro consientiae. Its binding effect does not come from the availability of the secular sanctions of State courts of law. The availability of these latter sanctions when spiritual matters become mixed with Church property matters is an incident of the consensual, compact or contract which means that in those cases where property is involved, the consensual, compact or contract is given the same effect, in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract."
When questions arising from a consensual compact also involve questions relating to the property of a religious community or a civil right, secular courts may enter upon religious questions to the extent necessary to enable the secular questions to be decided: Scandrett v Dowling (1992) 27 NSWLR 483 at 564A-B. However, the policy of the general law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment: Cameron v Hogan (1934) 51 CLR 358 at 378; Camenzuli v Morrison [2022] NSWCA 51.
Priestley JA's reference to "ecclesiastical jurisdiction" invites an explanation.
The Supreme Court of New South Wales as presently constituted was established by promulgation of the letters patent colloquially known as "The Third Charter of Justice" under the authority of an Imperial Statute (4 Geo. IV c. 96) colloquially known as the "New South Wales Act 1823 (Imp). The operation of that legislation was continued by another Imperial statute (9 Geo. IV c. 83) which, by confirmatory authority conferred by the Short Titles Act 1896 (Eng), is generally known as the Australian Courts Act 1828 (Imp). On 17 May 2024 the Court celebrates the bicentenary of its first sitting.
The legislation of the 1820s was expressed to confer upon the Court "ecclesiastical jurisdiction" but it came to be appreciated that that jurisdiction was limited to what we now know as the Court's "probate jurisdiction". Until enactment of the Probate Act 1890 (NSW) the probate jurisdiction of the Court was known as the "ecclesiastical jurisdiction": JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), Chapter 8.
Ecclesiastical jurisdiction was first conferred on the Court by section 10 of the New South Wales Act 1823, given operative effect by clauses 14-17 of the Third Charter of Justice. Those provisions declared that the Court was "a Court of Ecclesiastical Jurisdiction, with full power" to make grants of probate or letters of administration in respect of deceased estates comprising property in NSW.
The Third Charter of Justice was continued in operation by section 2 of the Australian Courts Act 1828, the preamble to which Act recited that the operation of the New South Wales Act had been extended pending enactment of the 1828 Act.
Two sections of the Australian Courts Act are presently material.
Section 12, in substance, repeated section 10 of the New South Wales Act, declaring the Court to be a Court of Ecclesiastical Jurisdiction, doing so specifically in the context of the administration of deceased estates, without elaboration of any other form of ecclesiastical jurisdiction exercised in England.
So far as is presently material, section 24 reads as follows (with emphasis added): … Be it further enacted, That all Laws and Statutes in force within the Realm of England at the Time of the passing of this Act [25 July 1828], (not being inconsistent herewith, or with any Charter or Letters Patent or Order in Council which may be issued in pursuance hereof,) shall be applied in the Administration of Justice in the Courts of New South Wales and Van Dieman's Land [Tasmania], respectively, so far as the same can be applied within the said Colonies …"
Section 24 reflects a principle most famously articulated by Sir William Blackstone in his Commentaries on the Laws of England (9th "received" edition, London, 1783), Volume 1, page [107], that in a colony (such as that NSW was then perceived to be) in which, upon colonisation, "all the English laws then in being, which are the birth-right of every subject" were taken to be "immediately there in force" … [such] colonies carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance [emphasis added] …"
In Ex parte King (1861) 2 Legge 1307 the Court (constituted by Dickinson ACJ and Wise J) held, inter alia, that the ecclesiastical law of England relating to the appointment of bishops by the Crown was not applicable to the colony.
The Acting Chief Justice made the following observations (at 1314): "I am of opinion that the King's Ecclesiastical Law of England has no applicability to the circumstances of this colony. During the rise and progress of the system, all persons in England were supposed to be members of the Established Church. That Church was recognised by various statutes to be the church of the whole people. The holders of land were obliged to pay tithes for the support of the members of that church. Parishioners were under the obligation to uphold the fabrics of their parish churches. The bishops had seats in Parliament, and formed an estate of the realm. In various ways, too notorious to mention, the Church was recognised as an institution by the law, and was by law established. Laws were made or adopted, and tribunals were created for regulating the relations of the bishops, the clergy and laity. But the Christians in this colony, who were or would be members of the Established Church in the United Kingdom, have never in any statute been recognised as being members of a church established here by law, any more than the members of the Roman Catholic, Presbyterian, Independent, Unitarian, or Jewish congregations have been. Though the colonial Legislature has made special provisions for the building of places of worship, and for the support of ministers of religion, it has in no instance given precedence to the Church of England over other collections of Christians. Having here no tithes, no church rates, no spiritual peers - there being no circumstances which assimilate the political status of the Church of England members to that of the same class of Christians in the United Kingdom - it is obvious that the laws by which the Church of all England is regulated there, can have no applicability to congregations professing the same principles of religion here, and acknowledging the fitness of the same kind of Church government. As the church law cannot be here applied, the courts by which in England that law has been administered cannot be considered applicable to our circumstances. …"
Thus it was that the internal rules for the governing of the Church of England in England (sometimes labelled "ecclesiastical law", "church law" or "canon law") were disclaimed as part of the general law of NSW.
Ex parte King was not decided in a vacuum. The legal perspective is well summarised by JM Bennett in A History of the Supreme Court of New South Wales (Lawbook Co, Sydney, 1974) at page 293, footnote 2, in the following terms: "… [The] Court as founded by The Third Charter of Justice) had not the authority in matters of Church law that the Ecclesiastical Courts in England possessed. However, it is a nice question whether such powers might have been inherited through 'establishment' in the Colony of the Church of England. Dixon J, in Wylde v Attorney General for New South Wales (1948) 78 CLR 224 at 284, considered that: 'notwithstanding judicial statements of a contrary tendency, the better opinion appears to be that the Church of England came to New South Wales as the established Church and that it possessed that status in the Colony for some decades. The first chaplain and all the early chaplains formed part of the civil establishment. The Governor's instructions made it his duty to enforce a due observance of religion and to take steps for the due celebration of public worship as circumstances would permit'. It is difficult, however, to derive therefrom the qualities of establishment laid down by the Privy Council in Long v Bishop of Cape Town (1863) 1 Moo. NS 411 at 461 [15 ER 756]. Interpreting that case, because it had 'created some alarm', Lord Romilly MR said in Bishop of Natal v Gladstone [1866] 3 LR Eq 1 at 35, that 'where there is no state religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a church there with the doctrines, rights and ordinances of the Church of England, it is a part of the Church of England' (italics added). The early Australian church was not 'established by the Legislature. See other compelling reasons advanced by Dickinson J against the existence of an established Church of England, reasons equally valid at the Colony's foundation, in Ex parte the Reverend George King (1861) Legge 1307 at 1314."
Ex parte King was an early Australian contribution to a debate (analysed in Scandrett v Dowling) about the nature of church government (including, in date order, Dr Warren's Case (1835) Grindrod's Compendium, 8th ed 371; Long v Bishop of Cape Town (1863) 1 Moo NS 411; 15 ER 756; Bishop of Natal v Gladstone (1863) LR 3 Eq 1; and Forbes v Eden (1867) LR 1 Sc & Div 568) culminating in the view, confirmed by Scandrett v Dowling, that in Australia the terms of the constitution of a church (a religious community) form a consensual compact binding in conscience but without contractual force, not justiciable in a civil court except to the extent that they may be involved in a matter concerning church property.
In historical context these debates followed controversies during the tenure of Sir Richard Bourke as Governor of NSW (between December 1831 and December 1837) in which Bourke resisted recognition of the Church of England as an established church and William Grant Broughton (initially as the Anglican Archdeacon of NSW and then as the Church of England's first Bishop in Australia) championed the cause of the Church of England as an established church in NSW.
Bourke's reform proposals bore fruit in 1836 with the enactment by the NSW Legislative Council of the Church Act 1836 (7 Wm IV No 3) and its Anglican counterpart (8 Wm 4 No 5), the scheme of which was to give support from public funds to the major Christian denominations in proportion to the numbers of their adherents in the Colony: Australian Dictionary of Biography (ADB), Volume 1, entries for Sir Richard Bourke and Bishop Broughton.
In what became a characteristically Australian way the abandonment of any concept of an established church in NSW came about by incremental change rather than a constitutional convulsion.

THE NATURE OF "ZAKAT"

The Concise Australian Legal Dictionary (LexisNexis, Australia, 6th edition, 2021) defines "Zakat" in the following terms: "Zakat Ar-charity tax. The payment of alms or a tithe which will be used for Muslims in need. The payment of Zakat is required as one of the five pillars of Islam: Qur'an 8:60."
Jamila Hussain in Islam: Its Law and Society (Federation Press, Sydney, 3rd edition, 2011), at page 208, makes the following observations (omitting footnotes): "Some writers have described zakat as a form of taxation. Others have translated it as 'alms', suggesting that it is purely a charity. It has also been called 'an act of worship expressing a Muslim's gratitude for God's financial gifts'. It is similar in concept to a tithe, its purpose being to discourage the concentration of wealth and to 'purify' the surplus wealth of the relatively well-to-do by re-disposition to the poor. It discourages hoarding and encourages the return of idle wealth into economic activity for the benefit of society generally."
To describe Zakat, without qualification, as a "tax" is too strong a meaning to attribute to the word in the context of the will under consideration in these proceedings. A better description (which reflects legal advice likely to have been given to the deceased at the time he executed his will) might be "a philanthropic donation (of money or kind) commonly expected within an Australian Islamic community to be paid voluntarily by an observant Muslim". What, for some, is a "tax" is for others a "free will offering". The proper meaning to be attributed to "Zakat" depends on context.
To the Islamic faithful Zakat is seen as a distinctively Islamic form of charity, but not the only form of charity known to them. It has parallels in a shared history of Judaism and Christianity (evidenced by the concept of a tithe grounded in the Hebrew Bible, the Torah, and the Christian Old Testament), but a distinctive field of operation defined by Islamic scripture, tradition and practice.
A lay person might prefer to use the word "charitable" rather than "philanthropic" but an Australian lawyer must hesitate in the use of the word "charitable" because it has acquired a technical legal meaning. Even the word "philanthropic" offers no more than an approximation of the meaning of the word "Zakat" when encountered in some Islamic communities.
An exposition of the meaning of the concept of "charitable" in an Australian legal context and the problems experienced in tying it down in definitional terms provides for a lawyer an opportunity to see similar problems in formulating a definition of Zakat and its intersection with Australian law.
In the construction of a will subject to Australian law, the law governing a charitable trust (a trust of property), not a concept unattached to an interest in property as is Zakat, may offer insights or opportunities for analogous reasoning but the ultimate touchstone is the testamentary intention of the testator and, if there be a reference in the will to "Zakat", the nature of the concept of Zakat intended by the testator to be the subject of that intention.
The labels people put on things they do, or intend to do, might inform what it is that they do in the eyes of the law, but labels are not necessarily determinative of the legal characterisation of what is done. This is true of "Zakat, "charity" and "law", including expressions such as "Sharia law", "church law", "canon law" or "ecclesiastical law". This must be borne in mind in the study of the nature of "Zakat" when searching for meaning in the analogous nature of "charity" under the general law.
In this judgment, in order to draw out the meaning and scope for operation of "Zakat" in the context of Australian law, I invite a comparison between a "Zakat purpose" as contemplated by Sharia law and a "charitable purpose" recognised under the general law.
That comparison is open to criticism on the basis that, although the general law is cast in terms of a purpose that is charitable, Zakat may be viewed within an Islamic community not as a form of charity but as a form of almsgiving, acknowledging in each observant member of the community a religious obligation (as a donor) to give to God what belongs to God for the benefit of members of the community in need, coupled with a right of a recipient of Zakat (a donee in need) linked to a concept of property held (in colloquial terms) in trusteeship: Atia, Building a House in Heaven, pages 4-5.
Nevertheless, the categories of eligible recipients of Zakat have descriptors which can be viewed as purposive in character so that identification of "Zakat purposes" is not without utility.
An analysis of Zakat in terms of the purposes to which it may, or must, be applied may serve not only to highlight points of intersection between Sharia law and the general law but to accommodate a constructive engagement with common law jurisdictions in which Zakat takes the form of a voluntary payment of money to an administrator (by whatever name known) who can receive funds from several sources, aggregate them and use them for purposes larger than an act of beneficence towards an individual.
As Islamic communities grow in wealth and influence in contemporary society the administration of zakat may increasingly be viewed through the prism of "Islamic Finance" rather than simply "Islamic Charity". If one looks for analogous experience in other contexts it might be found in English society with the evolution of tithes payable as a personal obligation into an obligation to pay money charged against land, subsequently abolished in favour of general rates and taxes.
Under Australian law the concept of "charity" is often discussed in the context of a trust of property for a charitable purpose. When lawyers speak of a "charitable trust" they sometimes refer to the preamble of the English Statute of Charitable Uses 1601, 43 Eliz I chapter 4 which identifies a number of objects of charity which invite analogous reasoning: Heydon and Leeming (ed), Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, Australia, 8th Edition, 2016), paragraph [10-02].
Lawyers also commonly refer to the seminal judgment of the English House of Lords in Commissioners for Special Purposes of Income Tax v Pensel [1891] AC 531.
In that case Lord Herschell suggested that "the popular conception of a charitable purpose covers the relief of any form of necessity, destitution, or helplessness which excites the compassion or sympathy of men, and so appeals to their benevolence for relief": [1891] AC 572.
Lord McNaughten, at [1891] AC 583, made the following observations (with editorial adaption) which are commonly referred to: "No doubt the popular meaning of the words 'charity' and 'charitable' does not coincide with their legal meaning … But still it is difficult to fix the point of divergence [between the popular and legal meanings of the word charity], and no one as yet has succeeded in defining the popular meaning of the word 'charity'. … How far then, it may be asked, does the popular meaning of the word 'charity' correspond with its legal meaning? 'Charity' in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads."
Jacobs' Law of Trusts in Australia (8th edition), paragraphs [10-04]-[10-05], places those four classes of charitable trusts in a broader perspective (omitting footnote references): "A trust not falling within one of these classes and hence not falling within the preamble or its spirit and intendment is not charitable even if beneficial to the community. And a trust falling within one of the four classes derived from the preamble may not be charitable if not beneficial to the community. All charitable trusts must fall within one of these classes. But not every object which might be brought within one of them is ipso facto a charity. That is because whatever class it may come within, it must further be of a public nature, that is, for the benefit of the public, and also capable if necessary, of being controlled by the Court. Whether it fulfils all these conditions is a question to be decided by the Court. The concept of legal charity is one which changes and develops in each age. The purpose to which the property is devoted is what must be considered in determining whether any particular purpose is charitable. The source of the property or the person of the trustee is not relevant in determining the question. And where the trust rests on writing, the characterisation of the trust as charitable depends on construction of the writing, not on subsequent activities. … All charitable trusts are trusts for purposes not persons. It is important to bear this fact firmly in mind owing to the habit of using expressions such as 'charitable institutions'. …"
The four classes of charitable trusts generally recognised under the general law (trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community) might usefully be compared with the eight categories of eligible recipients of Zakat generally thought to be circumscribed by the Qur'an (9:60).
Alternative translations of that passage of Scripture are available and here offered: "Alms [zakat] are meant only for the poor, the needy, those who administer them, those whose hearts need winning over, to free slaves and help those in debt, for God's cause, and for travellers in need. This is ordained by God": … The free will offerings [of Zakat] after the poor and needy, those who work to collect them, those whose hearts are brought together, the ransoming of slaves, debtors, in God's way, and the traveller; so God ordains; God is all knowing, all wise": The Koran Interpreted, translated by Arthur J Arberry, Two Volumes (Allen & Unwin, London, 1955) at [9:60].
The eight categories of eligible recipients of Zakat, derived from that passage of Scripture in the Qur'an, are: (i) Al-fuqara - "the poor"; (ii) Al-masakin - "the needy"; (iii) Al-gharimin - those burdened with debt; (iv) Al-mullafati qulubuhum - those "whose hearts need winning over" (promoting Islam); (v) Fi sabilillah - those "for God's cause" or "in the path of God"; (vi) Ibn al-sabil - "wayfarers" and "travellers in need"; (vii) Fir riqab - those in bondage or slavery; and (viii) Al-amilina alayha - those who collect or administer zakat.
In slightly different language, these categories are confirmed as grounded in tradition by Kristen Stilt (Islamic Law in Action: Authority, Discretion and Everyday Experiences in Mamluk Egypt (Oxford University Press, 2011), page 188 who, in a treatment of the Mamluk period (1250-1517), records (at page 189) a difference between Islamic jurists as to whether Zakat was required to be distributed equally between all categories of recipients, not just one.
From her study of the past, the author invites a view of "Islamic law" that favours its adaptability to social conditions (at pages 208-209, with footnotes omitted): … [Modern] proponents of the application of Islamic law often equate Islamic law with fiqh [legal doctrine], rely on their choices of fiqh rules to prepare legislation, and then present the result in such a way that any criticism is deflected as a critique of God's law. Likewise, critics of the role of Islamic law in contemporary contexts also typically point to particular fiqh rules that are incompatible with modern notions of non-discrimination and human rights … and on this basis reject any place for Islamic law in modern society. The problem with both approaches is that they focus on fiqh exclusively, and neglect the actual practice of law, the role of discretion by legal officials, and, most significantly, the major role played by the ruler [a legal authority] as a function of siyasa [policy-based decision-making as a source of authority for governance]. Further, fiqh-based arguments often involve a claim to historical authenticity, a suggestion that society used to be ordered according to fiqh rules and that a true modern Islamic society should simply revive them. An imagined scenario in which fiqh reigned supreme and text equalled action skews our understanding of the past and the ways in which the past can help inform the present. The fiqh-siyasa framework can be helpful in examining the issues of sources of authority for Islamic law in modern times. The historical power of fiqh (and the jurists who produced it) has been greatly diminished in the rise of modern nations and the codified laws that form the corpus of law in most parts of the Muslim world, along with the bureaucracies that implement them. And yet, even with the power of the legislatures in making national law, jurists still play important roles in social governance. To a large extent they operate through state structures … Modern rulers, now very typically strong executives, may be seen as exerting some kind of siyasa power when it comes to incorporating Islamic legal content into national law … Modern states often undertake what might best be called the management of Islamic law, which typically involves making jurists part of the state bureaucracy and producing a vision of Islamic law suitable for the national context. In this sense, siyasa power harnesses fiqh to its own advantage, just as the legislature might pick and choose between fiqh rules when deciding what to put into national law … The exercise of discretion by actors claiming Islamic legal authority is … a significant issue in the modern context, but a forthright discussion of it by those actors is rare. Assumptions or assertions are often made that there is no room for discretion in matters of God's law, and that applying God's rules is a straightforward and objective process. But human choices are needed at every step of the process, including deciding which particular rules of a vast and diverse corpus of fiqh should be chosen, how the implementation will take place, who the enforcing officials will be and with what kinds of necessary qualifications, what the prosecutorial priorities will be, what general norms or cultural background assumptions will inform the work of the enforcing officials, what kinds of penalties or punishments will be involved, and who will determine them and carry them out. Rather than attempting to hide the role of human discretion under the veneer of interpretive neutrality, discretionary factors should be identified and discussed as such. … … Strong assertions of authority, coupled with a denial of human agency and discretion, produce results that are difficult for individuals to resist or argue against and leave no room for debate. On the other hand, humility when making claims to authority, along with an admission that one's own context and biases, whether stated or even identified, play a large role in the process, can produce results that are open and subject to negotiation and that allow for a discussion of what rules and policies are best for that society. While particular details of each context have to be examined, investigating the fundamental concepts of authority, discretion, and experience in any matter relating to the practice of Islamic law today should always prove to be a useful line of enquiry."
In the absence of anything to the contrary, express or implied, in the will of the deceased presently under consideration, his reference to "Zakat payments" can reasonably be taken for the purpose of these proceedings to be a reference to a payment to or for the benefit of a person or persons who fall within one or more of the eight categories of persons identified in the Qur'an.
The Concise Australian Legal Dictionary avoids problems associated with the word "charity" by using the words "alms" and "tithe" and placing the word "Zakat" in the context of Islamic scripture.
The word "alms" generally refers to money or food distributed to the poor. The word "alms" has its roots in Ancient Greek and Latin words meaning mercy and pity. Almsgiving has its roots in Judaism's concern for the poor and powerless. It was a practice taken up in their turn by Christians and Muslims as a mark of piety.
The word "tithe" generally refers to a Christian custom (based upon verses of the Hebrew Bible known to Christians as the "Old Testament") of giving a portion (10%) of income to a church or clergy.
Neither expression (alms or tithe) captures a full understanding of the word "Zakat" although, as I will endeavour to show, an analogous experience of "tithes" in English legal history may shed light on the meaning of "Zakat" in an Australian context.
To define "Zakat" by reference to "tithes" is an invitation to study legal history. Tithes have never been part of the general law of Australia, or so the Court found in Ex parte King (1861) 2 Legge 1307 at 1314. They ceased to exist as part of English law in 1988. They are not today part of the cultural experience of every Australian as they once were of every Englishman.
The starting point, before turning to English legal history, is to explore some of the foundational origins of Zakat in the understanding of the Islamic faithful.
The five "Pillars of Islam" are canonical requirements and fundamental practices in Sunni Islam, considered to be obligatory acts of worship for all Sunni Muslims. The five pillars are: (1) Professing the Creed ("Shahadah"); (2) Obligatory Prayer ("Salat"); (3) Fasting ("Sawm"); (4) Almsgiving ("Zakat"); and (5) Pilgrimage to Mecca ("Hajj"), the Qur'an being the main source of the five pillars: Scott Edgar, "The Five Pillars of Islam in the Hadith" (2002) 2 Studia Antique 71, 73; CM Blanchard, "Islam: Sunnis and Shi'ites" in CD Malbouisson (Ed), Focus on Islamic Issues (Nova Publishers, 2007), page 13.
In Shi'ite Islam the requirements of the "Pillars of Islam" are not described as such but, instead, as ritual elements ("Ibadat"). This is confirmed by Moojan Momen in An Introduction to Shi'i Islam (Yale University Press, 1987), at page 179 of which is the following description of Zakat: "The alms or poor-rate is levied on crops, livestock, gold, silver and cash. It is not payable by anyone whose debts exceed his assets. The formula for deriving how much is levied is complicated in case of livestock and grain. With respect to gold, silver and cash, it is approximately two and one half percent once a minimum threshold of assets is exceeded. The tax is, according to the text of the Qur'an (9:60), intended to assist the poor and needy, those in debt and travellers. It is also used for ransoming captives of war and the expenses of collecting and administering the tax. The principal difference between Shi'ism and Sunnism is that whereas in Sunnism this tax is paid to the State which is responsible for supervising its disbursement according to the provisions of the Qur'an, in Shi'ism it is paid by the believers to their Marja' at-taqlid [ie senior Shi'ite clergy] for disbursement."
I proceed upon an assumption that any differences between Shi'ism and Sunnism are not material to questions for decision in the current proceedings.
I do not take references here to the involvement of a State or other institution as having direct reference to the practice of Islam in Australia where, as I understand the evidence, observance of Zakat practices is voluntary and not mandated, controlled or regulated by any institution.
Nor do I take as universally operative in an Islamic community particular stipulations about the types of property amenable to a Zakat payment or the rate or rates at which Zakat might be expected to be paid.
I am fortified in this assessment by the observations of Timur Kuran in Islam and Mammon: The Economic Predicaments of Islamism (Princeton University Press, 2010) at page 22: "Malaysia, Saudi Arabia and Pakistan are among a handful of countries where zakat is administered by the State. In most of the Muslim world individuals have discretion over whether and how to pay zakat. The Qur'an itself is mute on issues of administration and enforcement, ruling out neither the centralised, obligatory mode nor the decentralised, voluntary mode. Yet each model has a basis in historical precedent. In the earliest years of Islam, when the Muslim community lived in Mecca, assistance to the poor was unregulated and strictly voluntary. Zakat became a formal and compulsory transfer system shortly after the community's relocation to Medina ('Hijra'), at a time when it was expanding very rapidly. Thus, during Prophet Muhammad's last few years zakat came to be administered by State-appointed agents and enforced, as necessary, by military might. Barely two decades after his death, however, the Islamic State's ability to administer zakat crumbled in the course of violent leadership struggles. From then on, zakat was up to the individual Muslim's discretion, although in certain times and places, local bodies played a role in collection and disbursement. In sum, while zakat formed a centrally administered, obligatory system during a brief but important segment of early Islamic history, for most of the religion's life it has been administered in a decentralised manner, the agents of enforcement being peer pressure, fear of God, and the individual's own conscience."
This passage, with its historical perspective, counsels caution against a failure to take into account cultural context, and differences over time and space, upon an assessment of "Zakat practice" in a particular Islamic community at a particular time. An examination of history or comparative jurisprudence can inform an understanding of current law and practice but cannot deflect a Court from addressing a case at hand in its own context.
The term "Zakat" appears to be no more capable of an exact, absolute definition than is the word "charity" in the context of charitable trusts. Unlike the concept of a "charitable trust" it is not, however, tied to particular property or limited purposes. It is not a dedication of property to a legally accepted charitable purpose, but a surrender of property for a purpose understood in a popular sense, within a particular Islamic community, to be charitable.
In my assessment the concept of Zakat, like that of a "charitable" trust, takes colour from the context in which it appears. Within a broad spectrum, its meaning may vary with time, place and persons. The definition of Zakat is fact sensitive in the sense that its meaning in a particular case might depend upon how it is used in the particular case and surrounding circumstances unique to that case.
At this point I notice what may be a parallel in the evolution of "Zakat" and "tithes".
Wael B Hallaq (James McGill, Professor in Islamic Law in the Institute of Islamic Studies at McGill University), in Shari'a: Theory Practice, Transformations (Cambridge University Press, 2009) at pages 231-234 makes the following observations about "Zakat" as one of "the legal pillars of religion" (omitting footnotes): "3. Alms-tax (zakat) Among all the "branches" of the law, zakat is unique in that it has a dualistic character: on the one hand, it is an integral part of religious ritual and one of the five "pillars" of religion; on the other hand, it functions as a substantive legal sphere, constituting itself as a "tax law." Literally meaning growth, zakat bears the extended connotation of paying out of the growth on one's property with a view to purifying that property. In one sense, zakat is the financial/material parallel of ritual tahara: just as washing removes ritual filth, zakat removes the moral burden that accompanies the garnering of wealth. In other words, to be wealthy is potentially a moral liability that requires dispensation, and the means of such dispensation is the sharing of that wealth with those who are in need. The sharing of excess in wealth with the Quranically specified beneficiaries (the poor, the needy and the wayfarers) not only is seen as such a means of purification, but reflects, among other things, the belief that all things ultimately belong to God and that Muslims are the trustees of earthly wealth, accountable for the ways in which they dispose of it. Hoarding wealth is a cause for divine condemnation as well as punishment in the Hereafter. Zakat is due on property that is (a) fully owned, precluding freely grazing, wild animals as well as property that is not in the possession (yad) of the owner (e.g., an unlawfully appropriated herd, maghsub). Derivative from this requirement is the capability of making payment at the time payment is due, since property can perish between the end of the "fiscal" year and the time payment is required (capability, imkan, being a legal condition applicable to all the "pillars"). It is also due on property that is (b) capable of growth, such as cattle, agricultural lands and commercial goods. Goods for personal consumption, e.g., animals intended for food, personal clothing and furniture, are exempt. On the other hand, precious metals, such as gold and silver, are taxable since they are commonly used in profit-based enterprises; (c) in excess of subsistence (e.g., food, shelter, household furniture, etc.); or (d) productive for a minimum of one full lunar year, with the exception of agricultural crops and minerals extracted from underground (in which case, zakat is due upon "harvesting" since this in itself constitutes "growth"). Finally, it is due on property that is (e) free of impediments, such as a debt. Given these conditions, the payment of zakat is obligatory upon every Muslim, male and female, including - according to Malikites, Shafi'ites, Hanbalites and Twelver-Shi'ites - minor and insane individuals. To be valid, it must be accompanied by niyya. Generally, it is levied at the rate of 2.5 percent on the growth of one's wealth, above and beyond the amounts needed for subsistence; however, this rate could reach 10 percent on some agricultural produce according to some jurists. A nisab is an amount of property below which no zakat can be levied, and it varies according to the genus of property. A property that is between two nisabs, namely, one that has not reached the next nisab, is exempt from levy on the differential. For example, the nisab of camels is five, so a person who owns nine camels would be paying zakat on only the first five. The nisab of cattle is thirty; of goats forty; of gold twenty mithqals; of silver a hundred dirhams; of crops five awsaq; of profit on trade a hundred dirhams. The Shafi'ites and Hanbalites require that the nisab be maintained throughout the year, without interruption. Should a cattle owner have, say, thirty head, one of which dies during the eleventh month of the taxation year, even if only a few hours later a calf is born, she would owe no zakat on her herd for that year. She would owe zakat on this nisab a year after the birth of that calf, provided there is no diminution in the number for any duration. The Hanafites, Shafi'ites and Hanbalites require the payment of zakat on grazing animals (sa'ima) but not on those that subsist on fodder (ma'lufa). To be regarded as ma'lufa, the animals must live on fodder for at least six months of each year. The cost of maintaining such animals considerably diminishes the rate of "growth" on them, making the collection of zakat unwarranted. Yet, the Malikites make no such distinction, and require zakat on all livestock, whether subsisting on fodder or on pasturage. They also differ from the rest of the schools in imposing zakat on labor animals (e.g., those used for plowing and milling). The rate of zakat paid on camels is as follows: up to twenty-four camels, one goat or sheep for every five camels. In this case, there are four nisabs as a person who owns twenty-four camels pays on only twenty of them, since the fifth nisab is not complete; between twenty-five and thirty-five camels, one female camel in its second year (bint makhad); between thirty-six and forty-five, one female camel in its third year (bint labun); between forty-six and sixty, one female camel in its fourth year (hiqqa); between sixty-one and seventy-five, one female camel in its fifth year (jadha'a); between seventy-six and ninety, two bint labuns; between ninety-one and 120, two hiqqas; and exceeding 120, one bint labun for every forty, or one hiqqa for every fifty. In all zakat on livestock, the levied animals must be of "average" quality and size', and should not be the best of the herd. The zakat levy on gold and silver is generally 2.5 percent, and so is the production of all types of mines. The rate on agricultural produce is 10 percent if the crops are irrigated by natural resources, but 5 percent if they are irrigated artificially, whether the water is purchased or ported in by paid labor. In mudaraba partnerships, the sleeping partner pays zakat on the principal, but jurists disagree as to who must pay on the profits. The Shafi'ites assign responsibility entirely to the sleeping partner, whereas the Hanafites require the worker to pay for his own share of the gains. In commonly owned and commingled property (mal mushtarak), the majority of jurists hold that zakat is due not on the nisab of the total property owned, but rather on each partner's share. The Shafi'ites, however, take the position that the nisab must be based on the total aggregate of property. Finally, another alms-tax, levied on persons and not on property, is the zakat al-fitr, due upon breaking the Ramadan fast, and intended to provide food for all the poor to celebrate the occasion. It is obligatory on every financially capable free Muslim, adult or minor, male or female; but this tax does not have the same status as a "pillar," namely, those who abjure it are not deemed to be apostates. Having in part the status of sadaqa, this zakat may be delayed or advanced by a day or two, according to most jurists. Due to the nature of its purpose and function, the levy is usually in foodstuffs."
If the extensive exposition of "Zakat" here by reference to a rural society strikes urban Australia as unfamiliar to a common law tradition, the treatment of "tithes" in the leading text of its day on English ecclesiastical law bears notice.
Section 2 of Chapter 3 of Volume 2 of the second (1895) edition of Phillimore's The Ecclesiastical Law of the Church of England includes (at page 1150 et seq) observations about "tithes" very much like those made about Zakat by Professor Hallaq, commencing with a statement (drawn from Burn's The Ecclesiastical Law) that "[of] common right, tithes were to be paid for such things only as do yield a yearly increase by the act of God". That statement (under the heading "Of What Things Tithes Were Paid") was followed by a narrative highlighted with the following marginal notes: "Things of the substance of the earth"; "Things ferae naturae"; "Things tame"; "Barren land"; "Forest land" etc.
The nature and fate of "tithes" is elaborated with a topic entry in The Oxford Dictionary of the Christian Church (4th edition, 2022,) which commences with the following paragraph: "Tithes. The tenth part of all fruits and profits due to God and thus to the Church for the maintenance of its ministry. The payment of tithes has been held to be enjoined not merely by ecclesiastical law, but by natural and divine law - by natural law because it is essential to the maintenance of religion, which is enjoined by natural law; by divine law because the payment of tithes is specifically ordered in the [Old Testament] (Leviticus 27:30-2, Deuteronomy 14:22-4). It is, however, only implied in the [New Testament] (Matthew 5:17-19, 23:23) which places much greater emphasis on voluntary giving (eg 2 Corinthians 9:6-7)."
The same entry describes how tithes became attached to land and by legislation (commencing with the Tithe Act 1836 (6 & 7 Will 4 c 71)) were phased out by a procedure for the commutation of all tithes into tithe rent-charges on land. Tithes "ceased to exist in England altogether" in 1988.
The Oxford Dictionary entry on tithes explains the nature of tithes in terms reflected in Professor Hallaq's account of Zakat: "Tithes were of three sorts: praedial, mixed, and personal. Praedial tithes came immediately from the ground, such as grain, timber, and fruit. Mixed tithes came from things nourished by the ground, such as calves, lambs, chickens, milk, cheese, and eggs. Personal tithes arose from the net profits of labour and industry. Wild animals were not subject to tithes, nor was barren, uncultivated land. Tithes were further divided into great tithes (chiefly corn, hay, and wood) and small tithes (all others). The amount actually produced was irrelevant to this distinction. Tithe was payable annually even if the fruits had grown without being collected - as in the case of saffron, gathered only once in three years. … "
Lest it be thought that the authorities here cited about the meaning of tithes are too heavily weighted in favour of the religious over the secular, notice should be taken of Halsbury's The Laws of England, subtitled "A Complete Statement of the Whole of Law of England" containing in Volume 11 of the first edition (published in 1910) a treatment of "tithes" that includes the following observations at paragraph [1461] et seq (omitting footnotes): "[1461]. Tithes are the tenth part of all fruits, praedial, personal and mixed, which are due to God and consequently to His Church's ministers for their maintenance. Tithe is in its inception an ecclesiastical inheritance collateral to the estate of the land, and its proper nature due only to an ecclesiastical person by the ecclesiastical law. Tithes are payable yearly out of all things which with the aid of cultivation yield increase by the act of God, although the increase be not realised every year. Tithes which arise merely and immediately from the ground, as grain of all sorts, hay, wood, fruits, and herbs, are called praedial tithes. Tithes which arise from things immediately nourished by the ground, as colts, calves, lambs, chickens, milk, cheese, eggs, are called mixed tithes. Tithes which arise from the profits of labour and industry, being the tenth part of the clear gain after charges deducted are called personal tithes. … [1463] Tithes, being regarded as an ecclesiastical inheritance set apart as due to God, were primarily payable in each place to the ecclesiastical person whose duty it was to provide for the cure of souls of that place. … [1465] The inconvenience of collecting tithe in kind, and the fluctuating nature of the income derived from it, made it desirable that it should be replaced by some more convenient form of property, and by the Tithe Act 1836, provision was made for substituting in every parish, where possible by agreement between the owners of lands and the owners of the tithes, or where necessary by compulsion, a corn rent payable half yearly in money, known as tithe rentcharge, for all tithe moduses and compositions real not already commuted. …"
A footnote to paragraph [1463] records that "[according] to the fundamental principles of the common law all land is equally charged with tithes. To suppose a single acre is not charged is quite a mistake". This reflects the universality once claimed for the Church of England as a national, established church in England.

THE DECEASED'S LEGAL ADVICE IN MAKING "A SHARIA WILL"

Upon inquiry by the administrator, the solicitor who most likely prepared the will of the deceased presently before the Court, and certainly witnessed its execution, disclaimed any memory of the particular will but explained his modus operandi in supervising the preparation of a will making provision for the payment of Zakat in the following terms: "I refer to Zakat in generic terms. From an Islamic point of view, Zakat is paid every year by all Muslims, and if the deceased hadn't paid Zakat , then the trustee [of his or her estate] should pay the Zakat. While it is expected that the trustee pays this, it is not mandatory. … It is my usual practice to ask clients [who seek assistance in the preparation of a will] if they want Sharia law to apply so far as it can be incorporated. The main provisions I include following this discussion are Zakat and whether they want the Sharia inheritance to apply. That is, sons get twice as much as daughters. If the client says no, then it would be removed from the will before signing. … Zakat is an understood [principle] in the Islam religion, but it is still voluntary. … Zakat is 2.5% of savings. Your home is usually excluded from Zakat, and it is only paid on investments and savings."
The will under consideration in the present proceedings does not expressly refer to Sharia law. Nevertheless it conforms to the solicitor's understanding of Sharia law in so far as it incorporates a reference to Zakat and contains a provision that favours sons over daughters in the fixed proportion of 2:1.
It is apparent on the face of the will that the deceased was an observant Muslim. He directed that his "funeral and burial" be "conducted in accordance with the Islamic religion".
The deceased's will contains no explicit profession of faith. Any characterisation of the will as a "Sharia will" must rest upon an inference drawn from its terms in the light of extrinsic evidence.
Apart from his directions for an Islamic funeral and for the payment of "Zakat payments", and the provision that favours sons over daughters as beneficiaries, the will contains nothing to distinguish it from a conventional secular will. Of these three features of the will, only the first two are overtly Islamic. The third depends for its character as Sharia law compliant upon an understanding of context beyond the terms of the will.
The preference afforded sons over daughters bears upon the nature of Sharia law and incidentally upon the nature of Zakat. A will structured as is the will of the deceased in this case might, in a particular case, involve a tension between a perceived religious obligation to "do charity" by payment of Zakat and a religious obligation to deny testamentary provision to a daughter in need even if it can reasonably be seen that she cannot rely on a brother to address her need from his more generous inheritance.

THE LEGAL CHARACTER OF ZAKAT

However described (as a "charity tax", "alms", "a tithe" or otherwise) Zakat, in Australia (and in the Islamic community of the deceased in these proceedings), is taken to be a voluntary payment of money (or monies worth) by an observant Muslim during his or her lifetime, according to his or her conscience, in performance of a religious obligation.
In a paper entitled "Splitting Heirs - Succession Between Two Worlds: Australian Law and the Sharia", published as Chapter 7 in Abdullah Saeed and Helen McCue (eds), Family Law and Australian Muslim Women (Melbourne University Press, 2013), at page 160 Asmi Wood describes "unpaid zakat (tithe)" as an "Islamic religious debt" which is "unlikely to be considered [a debt] under Australian law". At 161 (note 108) he expressed the opinion that "a testator can, if she or he so wishes, directly and explicitly nominate zakat-eligible individuals or entities" as beneficiaries in a will. He then suggested (at footnote 108 on page 177) that: "[One] fairly easy method of distributing [zakat] according to prescribed criteria [that is, by reference to the zakat-eligible categories of persons listed in Qur'an (9:60)] is to nominate, say, a Muslim charity that is recognised by the Australian Tax Office with instructions that it discharge the 'debts' that are specified [… zakat] and that were owing at the time of the testator's death".
I agree with Professor Wood's assessment of the legal nature of Zakat and his proposal of a means by which a testator might direct that a Zakat payment, or a payment in the nature of Zakat, might be paid out of his or her deceased estate.
I hesitate to enter upon controversy associated with legislative reforms overseas to address a problem associated with exclusion of orphaned grandchildren from participation in the distribution of a deceased grandparent's estate, but there may be a conceptual point to be made in doing so. Egypt is taken as representative of those reforms in Hamid Khan, The Islamic Law of Inheritance: A Comparative Study of Recent Reforms in Muslim Countries (Oxford University Press, 3rd edition, 2007), Chapter 9. [A copy of the more recent 2022 edition is not presently available to me.] With a justification found in Islamic culture, legislation was introduced to enable orphaned grandchildren to receive an ascertained proportion of their grandparents' estate upon his or her death.
The proponents of this device of an "obligatory bequest" contend that the main Islamic authority for this reform is the Qur'an 2:180, generally known as "the verse of bequests", which states: "It is prescribed for you, when death approaches one of you, if he leave wealth, that he bequeath unto parents and near relatives in kindness". However, Hamid Khan informs us that there is a difference of opinion among theologians and jurists with regard to the legal force of this verse. Some of that opposition, he says, is expressed in the form of a rule: "no bequest to an heir".
In discussing the merits and demerits of the obligatory bequest Khan makes the following observations (emphasis added, footnotes omitted): "The main justification for this device of 'obligatory bequests' is that the orphaned grandchildren are provided for without changing the general structure of the Islamic law of inheritance. It is just like making something obligatory that was otherwise considered desirable. The bequest in favour of orphaned grandchildren has always been considered an appropriate method of providing for them, because grandchildren are not heirs in the presence of children of the deceased, and thus, the restriction against bequests to the heirs does not apply to them … [Paragraph 182] [A shortcoming in the reform of 'obligatory bequests' includes the fact that] giving precedence to an obligatory bequest over the voluntary bequests made by the deceased leads to a difficult situation. Islam highly approves certain types of legacies, particularly those which make good the deficiencies in Zakat paid by the deceased in his lifetime or as expiation for prayers missed or fasts not kept or bequests in favour of the poor or for the building of a mosque or a bridge or an inn for travellers. Therefore, the question would arise why should a bequest in favour of orphaned grandchildren be preferred over the aforesaid meritorious bequests under Islam? However, an answer to this question can be attempted on the ground that since the bequests for the purposes mentioned above are charitable ones, and that making provisions for needy grandchildren is also a charitable purpose, therefore, it should be given precedence over the other purposes on the basis of the principle that charity should begin at home. [Pages 186-187]"
These observations do not overcome limitations that may attend rules of inheritance governed by "forced succession", but they do contemplate that a legacy may be given for the purpose of making good a deficiency in Zakat ostensibly payable as a religious obligation but not paid by the deceased in his or her lifetime.

SO, WHAT IS A "SHARIA (COMPLIANT) WILL", OR WHAT CAN IT BE?

It is no part of the Court's function to lay down rules about what is, or may be, a "Sharia (compliant) will". In the ordinary course, that is a question for a testator with the benefit of advice of his or her own choice.
A secular court is not concerned with whether a will is or is not a Sharia will, or a Sharia compliant will, unless it is necessary that the will be characterised in such terms in order to determine a proprietary or civil right. It is no part of the Court's function to enter upon a religious question unless necessary for the determination of a secular question.
That said, in administration of the law of succession the Court endeavours to respect an individual's religious beliefs and may take them into account when assessing the validity, if not also the proper construction, of a will.
The law's focus in a probate suit is upon whether a document is the last will of a free and capable testator, having regard to legal tests governing an assessment of the formal and essential validity of the document as a will. With the development of jurisprudence about admission to probate of an "informal will" (governed by section 8 of the Succession Act 2006 NSW) there is an increasing focus upon the substance of a testamentary intention.
A common assumption made in discussions of Sharia wills may be that the form of a Sharia will is determinative. That assumption appears to arise principally because of a conviction that a Sharia will is a will that provides for distribution of a deceased estate in proportions fixed by Islamic law conventions. There appears to be no customary requirement that a testator explicitly profess his or her religious belief or provide for disposal of his or her body according to Islamic custom. Nor does there appear to be a universal "requirement" for the appointment of an executor (or administrator) who professes to be a Muslim, though an Islamic connection may be favoured. A will may be "Sharia compliant" even if that character is not apparent on the face of the will.
What may be more important than the form of a will in its characterisation for the purposes of the general law as a "Sharia (compliant) will" might be the religious intent of the testator, demonstrating genuine piety and perhaps offering an explanation for ostensibly embracing "forced succession rules" or departing from them to accommodate special circumstances including (for example) a perceived need to advance a Zakat purpose.
Is the will of the deceased under consideration in these proceedings truly a "Sharia (compliant) will"? It is enough for these proceedings to find, as I do, that the deceased thought it was, and that he intended it to be, a Sharia compliant will. However, if that characterisation were to be challenged in contested proceedings other considerations might be brought to bear. It should not be assumed, for example, that the only requirement for a Sharia-compliant will is a provision that the testator leave his or her estate to sons and daughters in the proportion of "2:1". Arguably, the deceased's will was not Sharia compliant because it purported to dispose of his whole estate, not merely a fraction (customarily one third) permitted for discretionary bequests as contemplated by Islamic custom; and it made no provision for members of his extended family who might have had a putative entitlement under a forced succession scheme of distribution favoured by custom.
That said, in the administration of a deceased estate according to the general law, importance attaches to the fact (which I assume to be the case) that no person other than the deceased's children has asserted a claim to beneficial entitlement to the estate. Probate law is pragmatic in the sense that, although guided by abstract principles, its focus is firmly on settling rights to property by requiring notice of proceedings relating to an estate to be published and limiting the rights of potential claimants who, with notice, fail to assert a claim in a timely manner: Osborne v Smith (1960) 105 CLR 153 at 158-159.
I leave to one side the question whether, in the drafting of a will for an observant Muslim, consideration should be given to the establishment of a family trust (as understood in Australian law) that might facilitate estate planning during the life of a testator in a way more flexible than what may be perceived as parameters for the execution of a "Sharia will". Experience teaches that "family trusts" have a complexity of their own which counsels caution against a casual embrace.

THE FACTUAL MATRIX

Ahmed Abou-Khalid ("the deceased") died on 9 December 2019, aged 97 years, leaving a will dated 4 March 2013 which was admitted to probate on 26 May 2022 by means of a grant of letters of administration with the will annexed.
The grant was made in favour of the plaintiff, Tamara Jayne Goodwin, in circumstances in which the instituted executor renounced probate, a named substitute executor had predeceased the deceased, and the beneficiaries named in the will had agreed to settle family provision proceedings under Chapter 3 of the Succession Act 2006 NSW on terms that provided that the administrator seek judicial advice as sought in these proceedings.
The wife of the deceased predeceased him. He was survived by three of his four children: a daughter, Rizka, born in July 1961 and now aged 62 years; a son, Nazih, born in May 1964 and now aged 59 years; and a daughter, Ayecha, born in April 1968 and now aged 55 years.
In earlier proceedings instituted by Ayecha (number 2020/00344266) and Nazih (number 2021/00296520) seeking family provision relief under Chapter 3 of the Succession Act 2006 NSW, Hallen J on 29 June 2022 made an order to the effect that the administrator would be justified in distributing the estate of the deceased upon the basis that Nawar (the child of the deceased who predeceased him) was not survived by any issue so that, in administration of the estate, a per stirpes provision operating for the benefit of a child of a deceased child of the deceased can be taken to have no practical scope for operation.
Omitting formal provisions, the dispositive provisions of the deceased's will can be found in clauses 4(b)-(g) of the will (with emphasis added): "(b) I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate of whatsoever nature and wheresoever situate unto my Trustee [the plaintiff as administrator] UPON TRUST to sell call in and convert into money the same or such part thereof as shall not already consist of money (with power to postpone such sale calling in and conversion of any part of my estate and to retain any of my investments in the same state of investment as at my decease for so long as my Trustee may in his absolute discretion think fit without being personally liable or responsible for any loss occasioned by such postponement or retention) AND out of my ready money and the proceeds of such sale calling in and conversion: (i) to pay my debts, funeral and testamentary expenses, death, estate duties and Zakat payments; (ii) to invest the remainder of my ready money and of the said proceeds in such investments as may be authorised by law for the investment of trust funds (all of which investments residue of ready money and such proceeds and my original investments retained under the above recited power are hereinafter referred to as "my Trust Estate") UPON TRUST to stand possessed of my Trust Estate and the income thereof IN TRUST for my children as shall survive me and upon attaining the age of twenty one (21) years and if more than one in shares so that the share of each son shall be twice that of each daughter. (c) IN THE EVENT THAT any child of mine predeceases me, whether before or after the date of my will, or survives me and dies before attaining a vested interest in my residuary estate, BUT leaving issue living at or born after my death who attain the age of twenty one (21) years, such issue shall take, and if more than one in equal shares EXCEPT THAT the share of each son shall be twice the share of each daughter, the share that his, her or their parent would have taken had he or she survived me and attained a vested interest. (d) IN THE EVENT that any child of mine predeceasing me and not leaving issue their interest in this MY WILL as well as any entitlement to the residuary of my estate shall pass to my surviving children to the [sic] distributed in accordance with clause 4 of this MY WILL. (e) I EMPOWER my Trustee to raise and expend the whole of the expectant share of my Trust Estate to which any child is entitled under this my Will for the maintenance education and advancement in life of such child in any way my Trustee shall in his or her absolute discretion think fit. (f) With respect to my personal chattels, furniture, jewellery and personal items, I GIVE DEVISE AND BEQUEATH these items to my children.. MY TRUSTEE at his or her absolute discretion shall either convert such items to cash or distribute these items as specific gifts HOWEVER such distribution MUST be consistent with Clause 4 of this MY WILL. (g) I GIVE DEVISE AND BEQUEATH the residuary my estate to be distributed by my trustee in accordance with Clause 4 of this MY WILL."
The substantial asset of the deceased's estate comprised the family home at Old Guildford (with an estimated value for probate purposes of $850,000), since realised and made the subject of interim distributions.
At the time of his death the deceased was not under any known legal or enforceable religious obligation to pay Zakat . Nor were, or are, his children (his beneficiaries) under any known legal or enforceable religious obligation to pay Zakat on his behalf.
There is no evidence of an unfulfilled "commitment" of any kind by the deceased or any other person to pay Zakat to any person or to serve a Zakat purpose. There is no evidence of an unsatisfied "debt" owed by the deceased or any other person of any description relating to Zakat.
There is no evidence of a demand by any person that Zakat be paid out of the estate of the deceased.
The question, on one view of the case, is whether the deceased's will itself, by its terms express or implied, authorises or mandates some form of Zakat payment or service absent an extrinsic obligation to perform a Zakat function.
There is no single body that receives Zakat in Australia. There is no secular law or instrument of secular government that requires, let alone compels, Zakat payments to be made. Custom within a particular Islamic community apart, there is no set rate for Zakat payments. In Australia, Zakat payments are voluntary, a function of the conscience of individual Muslims.
On 17 February 2022 the administrator and the deceased's beneficiaries executed a document styled "Heads of Agreement", which established a framework for applications to be made for a grant of administration of the estate of the deceased; for a Benjamin order (named after Re Benjamin [1902] 1 Ch 723) to be sought authorising a distribution of the estate on the basis that Nawar had predeceased the deceased without issue; for the administrator to apply for the judicial advice sought in the current proceedings; for dismissal or discontinuance of family provision claims made by Ayecha and Nazih; for indemnification of the administrator and inter partes releases; for the beneficiaries' costs to be paid from the deceased's residuary estate; and for an agreed percentage of distributions of the net distributable estate to the deceased's three surviving children.
The Heads of Agreement provided for the net distributable estate to be distributed in accordance with the deceased's will, with 50% going to his son (Nazih) and 25% going to each of his two daughters (Ayecha and Rizka).
Clause 3 of the Heads of Agreement was in the following terms: "[The administrator] will seek Judicial Advice to the effect that she would be justified in distributing the estate of the deceased without paying any Zakat pursuant to clause 4(b)(i) of the will dated 4 March 2013 of the deceased, on the basis that Rizka, Nazih and Ayecha agree, jointly and severally, to pay, personally, or from their entitlement to the estate of the deceased, any amount payable for Zakat , without prejudice to any person, including Ayecha, Nazih or Rizka to argue that Zakat is not required to be paid."

THE NATURE OF SUCCESSION LAW

Australian succession law operates upon the foundational paradigm of an autonomous individual living and dying in community. The central personality in a probate or family provision case is generally a person who has died and through whose prism the Court must supervise the collection and distribution of his or her estate.
An integral feature of Australian succession law is that, within limits, each individual with a capacity to do so is free to dispose of his or her property on death by the execution of a will (the form of which, in NSW, is currently regulated by Chapter 2 of the Succession Act 2006 NSW), in the absence of which legislation such as Chapter 4 of the Succession Act 2006 provides "rules" for the distribution of the estate on an intestacy.
I am mindful that those who adhere to the Islamic faith embrace a strong personal commitment to the concepts of "family" and "community" and that an ethical (if not theological) dimension of Sharia Law in its focus on the inheritance of property within a family (not limited to succession to property on death but embracing the inter vivos management of the family's affairs and estate planning generally) may ground an assumption on the part of a testator that his or her affairs should be managed in a way that privileges "family property" and fixed or settled rules for the transmission of property to family members on death.
The civil law concept of community of ownership arising from marriage, or "family property", has no place in Anglo-Australian common law. It has been rejected by the courts: Hepworth v Hepworth (1963) 110 CLR 309 at 317-318; Bryson v Bryant (1992) 29 NSWLR 188 at 195-196. Academic commentary has accepted that there is no legal concept of "family property" as such in Australian law: R Atherton (Croucher) in D Kirkby (Ed), Sex, Power and Justice: Historical Perspective of Law in Australia (Oxford University Press, Melbourne, 1995), Chapter 11. The Australian Law Reform Commission has recommended against the introduction of such a regime in Australia, preferring to maintain (with statutory modifications, embracing discretionary powers, where required) the system of "separate property" during marriage, characteristic of English law: ALRC, Matrimonial Property Report No 39 (1987), recommendation 24 and paragraphs 53 and 508 et seq.
Care needs to be taken with the use of the expression "family property" in connection with Sharia law because it should not be taken as embracing co-ownership of title to property as understood in a secular context. Its province, if any, is in the idea that, in deployment of individuality owned property, members of a family have joint concerns for the welfare of the family and allotted relationship roles within the family.
Australian law has not embraced a system of "forced succession" characteristic of some other jurisdictions, as explained in Croucher and P Vines, Succession: Families, Property and Death (LexisNexis, Australia, 6th edition, 2024) at paragraph [1.25]: "Some legal systems do not allow the deceased to control events after his or her death by means of any form of will. Such systems prescribe who will take the property after death regardless of the desires of the original owner of the property. This is forced succession. Some legal systems prescribe a certain proportion of an estate that must be held for the heir while allowing the deceased to decide what will happen to the remainder of his or her property after death. Forced succession of some kind is characteristic of the civil, Islamic and Talmudic systems of law. In England, at common law testamentary freedom did not exist in relation to land until the Wills Act of 1540 allowed some land to be devised. … The testator's family maintenance or family provision legislation passed in the 20th century in many common law countries restricted testamentary freedom significantly and it could be argued that this brought aspects of forced succession back into the common law systems."
The primary field of operation of the probate jurisdiction of the Court is the "administration" (management) of a deceased "estate" (property). Disputation about the appointment of a "testamentary guardian" (that is, a guardian of children appointed by will of a testator) is comparatively rare, and can be passed over upon a consideration of ordinary practice. Although the central provisions of a will generally provide a scheme for the disposition of property, wills commonly include a statement of a deceased person's preferences for a funeral and arrangements for burial or cremation, and statements about why testamentary provision has been, or has not been, made for a particular family member or friend.
A will may contain statements of social, political or religious significance (be they statements of fact or opinion or expressions of mere sentiment) without impugning the validity of the will; but the focus of the law is squarely upon what is necessary or convenient for an orderly winding up of the affairs of the deceased in a temporal setting. In current experience a will may or may not contain a provision regarding, or material to, arrangements for the disposal of the body of the deceased. In days gone by wills by Christian testators commonly included an explicit profession of faith. The law endeavours to respect all such provisions, but its primary focus is commonly upon the appointment of an executor (as the deceased's "legal personal representative") and what is required to facilitate an orderly succession to property and to accommodate those people who may reasonably be thought to have had a claim on the bounty of the deceased (most prominently, family members and dependants).
An exercise of the Court's probate jurisdiction is governed by the purpose served by the jurisdiction. It looks to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intention of the deceased, and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a testator's testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Estate Kouvakis [2014] NSWSC 786 at [211].
Once the character of a legal personal representative passes from that of an executor or administrator to that of a trustee (upon completion of executorial duties associated with disposal of the deceased's body and, more particularly, the collection of estate assets and the payment of estate debts) his, her or its obligations shift in focus from the deceased to the deceased's beneficiaries: Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [10]-[22]; Riccardi v Riccardi [2013] NSWSC 1655; (2013) 11 ASTLR 198.
The ultimate question for the Court in assessment of the validity of a will is whether it represents the last will of the deceased as a free and capable testator. That question is conventionally (and logically) analysed by reference to four main, subsidiary questions. First, whether at the time the will was made the testator had "testamentary capacity"; secondly, whether the will was made with the testator's "knowledge and approval" of its contents (that is, intentionally and knowingly); thirdly, whether the testator's execution of the will was obtained by an exercise of "undue influence" (generally meaning "coercion") on the part of an identified individual or individuals; and, fourthly, whether the testator's execution of the will was obtained by the "fraud" of an identified individual or individuals.
The probate jurisdiction offers a classic example of the paradigm of an "individual living (and dying) in community" in the definition of "testamentary capacity" for which Banks v Goodfellow (1870) LR 5 QB 549 is the leading authority.
The concept of "testamentary capacity" is directed to whether a testator had the mental capacity to make a valid will. That generally requires consideration of a further layer of logical, subsidiary questions considered, in common experience, to bear upon the existence of testamentary capacity: whether, at the time the will was made, the testator understood the nature of a will and its effects; whether he or she understood the extent of the property available for disposition; whether he or she was able to comprehend and weigh claims on his or her bounty; and whether his or her faculties were materially impaired by a medical condition.
Although these subsidiary questions are often stated as if "rules", they are infused by an appreciation of the moral concerns that attend upon the execution of a will. That appears explicitly in observations in Banks v Goodfellow to the effect that: "… though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus, given. … The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmity. For these reasons, the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property. …"
In each Australian jurisdiction "testamentary freedom" (the freedom to leave property by means of a will) is constrained by local legislation that authorises a court to make an order for "family provision" to be made out of the estate of a deceased person on the application of a person authorised by the legislation to make the application and who has been found by the court to have been left by the deceased without adequate provision for his proper maintenance, education and advancement in life. In NSW that legislation is currently found in Chapter 3 of the Succession Act.
To succeed on a claim for a family provision order a plaintiff must generally establish that, viewed from a current day perspective, he or she has been left without "adequate provision" for his or her "proper maintenance, education and advancement in life" from the deceased's estate and that further provision "ought to be made" for him or her from the estate.
In the exercise of its statutory powers in the determination of an application for a family provision order, a court must generally endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, in light of facts now known, treating him or her as wise and just rather than fond and foolish (In Re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Limited [1938] AC 463 at 478-479; Scales Case (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally consulting specific statutory criteria relating to interpersonal relationships so far as they may be material.
The family provision legislation is not a charter for a court to re-write a will. A deliberate scheme of testamentary dispositions by a capable testator is entitled to respect: Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253 at [127], approved in Sgro v Thomson [2017] NSWCA 326 at [1]-[2] and [83]-[87]. That said, the statutory jurisdiction of the Court is to be given full operation according to its terms, notwithstanding that it may encroach on testamentary freedom: Steinmetz v Shannon (2019) 99 NSWLR 687 at [97].
The fact that the Succession Act mandates an assessment of a case for provision at the time of determination of an application for a family provision order may offer opportunities for a court, on evidence not available to a testator, to depart from a testator's earlier expressed views of relationships, "moral duty" or "need". A court is not bound by a testator's assessment of a case for provision, but must be mindful of a need to afford a testator's views respect.
Under the Succession Act a right to apply for a family provision order cannot be released by a party unless the release is approved by the Court: section 95.
A will executed with the intention that it operate according to Sharia law must nevertheless comply with the formal requirements mandated by the Succession Act (particularly, section 6), or the provisions of the Act (in section 8) that govern the admission to probate of an informal will, and satisfy the general law requirements for proof that the instrument is the last will of a free and capable testator. A testator's statement of intention, express or implied, that a will is governed by Sharia law cannot, of itself, circumvent the requirements of the general law.
Nor can a declaration (express or implied) that a will is governed by Sharia law exclude the operation of the Court's statutory family provision jurisdiction absent a court order releasing the rights a person eligible to make a family provision application may have.
Australian succession law does not mandate that a testator treat any two or more beneficiaries "equally" or that a Sharia law pre-deposition in favour of sons over daughters be abandoned. However, a testator who wants to minimise the possibility of a family provision order being made against his or her estate needs to endeavour to make adequate provision for the proper maintenance, education and advancement in life of each person (of whatever gender) who has a call on his or her bounty and may have the standing necessary under the governing legislation to make an application for a family provision order.
There is no necessary conflict between a religious obligation to pay Zakat and the legislation governing the family provision jurisdiction of the Court. In practice, there may be a conflict between a Sharia idea that an estate should pass in fixed proportions and that sons should be favoured "2:1" over daughters, but that has no necessary bearing upon Zakat unless, possibly, a daughter is left in "need" (ie without adequate provision for her proper maintenance, education or advancement in life).
In considering whether to make testamentary provision for a person who is, or may be, eligible to make an application for a family provision order (and, if so, what provision to make) any testator might well be called upon to weigh competing claims on his or her bounty of family, dependents and friends and what (if any) support should be given for charitable works or cherished causes. An exercise of the Court's family provision jurisdiction requires the particular circumstances of a deceased person and his or her estate to be taken into account at each stage of decision-making.
Upon an assessment of what is "wise and just" in the light of prevailing "community standards", a court might reasonably be expected to give respect to the personal views of a deceased person whose estate is subject to orders of the court, including any views the deceased might have had about the gender roles of his or her children in the inheritance of property under Sharia law. However, it is likely that, in a particular case, expectations founded on an understanding of Sharia law might be qualified by a determination that a child of the deceased has been left without "adequate" provision for his or her "proper" maintenance, etc and that some provision "ought" to be made for him or her out of the estate of the deceased.
Some commentators on Islamic law maintain that an observant Muslim intent upon leaving a Sharia-compliant will is bound by his or her faith to leave a will that gives his or her estate to family members in fixed proportions that favour sons over daughters regardless of need.
In justification of this view, it is said that under Sharia law males within a family have a religious duty to support female family members and that, consistent with this, sons have a religious duty to support sisters.
If that is the case, there appears nevertheless to be no testamentary practice of expressly articulating a son's obligation to support his sisters as a condition of preferment or by subjecting a gift to him to a trust in favour of his sisters for their maintenance, education and advancement in life. In the absence of a firm, enforceable, explicit commitment on the part of a son, a court exercising family provision jurisdiction might be reluctant to embrace that line of reasoning in disposition of a daughter's application for a family provision order.
The justification for favouring the male line over the female is grounded, in historical terms, upon a contention that a virtue of the Sharia fixed proportions inheritance scheme is that it was introduced to favour women by ensuring that they received something (instead of nothing) under earlier inheritance laws.
Although Sharia law evidently has capacity, within the Islamic faith, to adapt to changing social conditions the preferential treatment of sons over daughters is generally justified in dogmatic terms.
A high level order of thought in Islam, following closely upon a foundational belief in the unity, greatness and goodness of God, is a belief (informed by a love of God) in civic virtues such as justice, truth, peace, goodwill, charity and family.
In his paper "Splitting Heirs" Professor Wood, at pages 151-152, wrote the following (with footnotes omitted): "In Australia … there is no obvious link between ethnicity or language spoken and the term 'Muslim'. Immigration has created a relatively new and eclectic mix, found only in other immigrant societies. Further, Muslims from different cultural backgrounds tend to give preference to their own cultural interpretation of sharia laws as 'authentic', and are unlikely to accede to interpretations from different cultural, linguistic and customary backgrounds. Thus, diversity within Australia makes a single proforma sharia will kit for Australian Muslims impractical. Notwithstanding these differences, freedom of testation (the freedom to dispose of property using a will) under Australian law appears to provide an ideal legal framework for each group, school [of Islamic thought] or ethnic community to develop a formula that works best for them. The comparative examination of succession law [in this paper] is conceptual and broad, as it seeks to answer the general question of the feasibility of, and scope for, the execution of a sharia-compatible will in Australian jurisdictions. This approach is likely to produce a workable and pragmatic solution, at least until there emerges a widely recognisable and homogeneous Australian Muslim identity. The sharia does not, however, operate in a vacuum. In this context, jurists refer to its maqasid (objectives). Al-Jawziyyah (d.751/1350 AH/CE) notes that the maqasid include 'educating individuals, establishing justice, hindering injustice and promoting the interests of the public'. A key objective of the sharia, in the language of the Qur'an, is to establish justice and fair dealing that is based on fair (that is, objective) evidence. Justice is a key criterion for establishing the validity of laws, although justice in this context must mean justice according to the principles and sources of Islam and must be compatible with the overarching spirit in which (succession) law is interpreted and developed for use in Australia."
Another high level of thought in Islam, informed by a love of God and the civic virtues, is an imperative towards charity epitomised by Zakat, one of the purposes of which is relief of those in need.
In reflecting upon this, I am drawn to the following additional observations made by Professor Wood in his paper "Splitting Heirs": "The key criterion of justice and the spirit of Islamic succession laws vis-à-vis one's issue is arguably summarised in the following tradition of the Prophet: 'It is better for you to leave your offspring wealthy than to leave them poor, asking others for help. And whatever you spend (for God's sake) you will be rewarded for it.' [page 155] … Islam requires its adherents to 'do good'. Part of this good action is the use of one's wealth and possessions to benefit those in need, those who are less well off and - best of all, but within reasonable limits - one's family, so they will not be a burden on others. Giving one's possesses [sic] in one's lifetime, while such wealth and property have value and utility, is also a part of this good action. Such gifting has the benefit of allowing a person to choose the beneficiaries, including (as appropriate) children, family, friends and preferred charities. Thus, when a person is deceased, what is left arguably has less value, as the person is merely giving away that for which he or she no longer has use. [Pages 168-169]"
I am mindful also of the following observations made by Professor Wood in his paper (omitting footnotes): "The Qur'an explicitly sanctions the view that in the case of intractable problems, a general, temporary legal exception can be made on the basis of necessity, as long as there is no intention to wilfully disobey God. It does not, however, appear to be a specific sharia-based analysis on the scope of necessity in the context of [modern financial products such as superannuation, mortgaged real property and financial interests in incorporated entities]. The sharia is generally binding on Muslims, but the uncertainty of its scope of application with respect to a suite of financial and property interests make some of the existing rules difficult to apply in the Australian context, with the present level of legal guidance. [page 158]"
Observations such as these invite deep reflection not only in an Islamic community, but in the general community as well. A classic illustration of this, encountered on a regular basis, is the operation of superannuation policies (under Commonwealth Legislation) outside the administration of a deceased estate under State laws. Succession lawyers need to grapple with new problems whatever the religious views of themselves and their clientele.
A question for reflection, not to be determined in these proceedings, is whether a testamentary direction for the payment of zakat as an indicia of a Sharia-compliant will, should inform the determination of an application for a family provision order. I am inclined to answer that question in the affirmative (at least to the extent that an order for provision might be supported by a testator's recognition that a child in need should receive support beyond a Sharia mandated fixed proportion) but the present proceedings, in the absence of current family provision proceedings, do not present a vehicle for an expression of final views.
In rural NSW for many years farming families ordered their testamentary arrangements on the basis that, so far as their resources allowed, sons would be given a farm and daughters would be given an education, a house in town and the best prospects for a favourable marriage. This was not mandated by any law, but was the way some farming communities commonly ordered their affairs. Over time, as a review of family provision cases (including the many cases which settle at mediation without a contested hearing) might confirm, social and economic developments have largely displaced that customary model (although MB Voyce, in "The Impact of the Testator's Family Maintenance Legislation as Law and Ideology on the Family Farm" (1993) 7 Australian Journal of Family Law 191 thought otherwise, 30 years ago). A judge hearing an application for a family provision order in contemporary society is bound to give effect to the text of the legislation governing the application without glossing the text with abstract presumptions about the way the affairs of a family must, or should, be ordered.
I am not to be taken by these observations to be suggesting that the views of a deceased person about the operation of Sharia law can, or should, be either embraced or disregarded. My observations are intended simply to provide an illustration of how judges are required to grapple with problems that often emerge at the intersection of the law and a variety of established conventions to which testators may subscribe.

PRINCIPLES OF CONSTRUCTION

Counsel have drawn to my attention a number of cases dealing with the principles to be applied in the construction of a will. Those cases include Towns v Wentworth (1858) 11 Moo PCC 526; 14 ER 794, 800; Nicol v Chant (1909) 7 CLR 569 at 577; and Estate Polykarpou; Re a charity [2016] NSWSC 409 at [63].
In Towns v Wentworth (1858) 11 Moo PCC 526, 542-583; 14 ER 794, 800, the Privy Council made the following observations: "The rules of construction ... do not seem open to any doubt. In order to determine the meaning of a will, the court must read the language of the testator in the sense in which it appears he himself attached to the expressions which he has used ... When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with such intention, though not sufficient to control it, or which indicate an intention which the law will not permit to take effect, such expressions must be discarded or modified; and, on the other hand, if the Will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will sufficiently declared."
In Nicol v Chant (1909) 7 CLR 569 at 577, Griffiths CJ observed the following: "The question to be determined is purely one of construction. In construing a Will the first duty of the court is to examine it, and to discover the language of the testator as applied to the circumstances existing at the date of the Will, and to give effect to the intention so discovered unless some authoritative rule of law or construction requires a different conclusion. The inverse process, a first taking up a supposed rule assumed to be prima facie applicable, and then enquiring whether the words of the Will exclude the operation of the rule, is, as has often been said, likely to lead to erroneous conclusions."
In Estate Polykarpou; Re a charity [2016] NSWSC 409 at [63], I set out the following propositions governing the construction of wills: "[T]he principles governing construction of the will to which I have had regard can be summarised in the following terms: a) As confirmed by Bryson J in Hatzantonis v Lawrence Cox [2003] NSWSC 914 at [6]-[8], the starting point is the following statement in Perrin v Morgan [1943] AC 399 at 406: " ... the fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in the particular case - what are the "expressed intentions" of the testator." b) As remarked by Powell J in Coorey v Coorey (NSW Supreme Court, 22 February 1986, unreported), repeated by Bryson J in Perpetual Trustee Co Limited v Wright (1987) 9 NSWLR 18 at 33 and adopted in subsequent cases (as illustrated by Hatzantonis v Lawrence Cox [2003] NSWSC 914 at [10] and Lockrey v Ferris [2011] NSWSC 179; 8 ASTLR 529 at [44]-[45]), the Court's "task is, first, if it be possible, to ascertain what was the basic scheme which the deceased had conceived for dealing with his estate and then, so to construe the will as, if it be possible, to give effect to the scheme so revealed". c) Evidence of the circumstances surrounding the deceased is admissible to assist in construction of her will so that the Court can place itself in her "arm-chair" when she made the will: Boyes v Cook (1880) 14 Ch D 53 at 56. The Court is entitled to put itself in the position of the deceased, and to consider all material facts and circumstances known to her with reference to which she is to be taken to have used the words used by her in her will: Allgood v Blake (1873) LR 8 Exch 160 at 162. Accordingly, the Court may admit evidence of the deceased's habits and knowledge of persons or things: Parry v Haisma [2012] NSWSC 290 at [11]. d) The will must be construed as a whole: Fell v Fell (1922) 31 CLR 268 at 273-274. e) By section 32 of the Succession Act 2006 NSW, evidence extrinsic to the will can be admitted to assist in interpretation of the language used in the will if that language makes the will, or any part of it, meaningless, ambiguous on the face of the will, or ambiguous in the light of surrounding circumstances. f) The Court leans against an intestacy, and does not presume that a testator meant to die intestate if, on a fair construction, there is reason for saying the contrary: Fell v Fell (1922) 31 CLR 268 at 275-276. g) The Court leans in favour of charity; if the text of a will is capable of a meaning which supports a finding of charity, that construction ordinarily should be adopted: Taylor v Taylor (1911) 10 CLR 218 at 225; Hadaway v Hadaway [1955] 1 WLR 16 at 19. h) If a donee exists exclusively for charitable purposes, a gift to it, absent a contrary intention, is a gift for its charitable purposes; a gift for a charitable institution is, prima facie, a gift for charitable purposes: Smith v West Australian Trustee and Executor & Agency Co Limited (1950) 81 CLR 320 at 322 and 325; The Sydney Homoeopathic Hospital v Turner (1959) 102 CLR 188 at 203; Stratton v Simpson (1970) 125 CLR 138 at 163. i) Under the general law, a general charitable intention may be found if the will manifests a charitable intention wider than the execution of a specific plan involving the particular failed gift; that is, an intention which, while not going beyond the bounds of the legal conception of charity, is more general than a bare intention that the impracticable direction represented by the gift ... be carried into execution as an indispensable part of the will: Attorney General (NSW) v Perpetual Trustee Co Limited (1940) 63 CLR 209 at 225."
The particular case before the Court involves no risk of an intestacy that calls for application to the concept of Zakat an analogy with the courts' propensity to "lean in favour of charity". The point in this case is rather that, in the construction of a will in which the deceased has embraced the concept of Zakat , the Court might reasonably approach construction of the will in a way that pays due respect to the deceased's tendency of thought and, in that sense, "lean in favour of Zakat " so that property is not unnecessarily lost to charity.

THE PROPER CONSTRUCTION OF THE DECEASED'S TESTAMENTARY DIRECTION FOR PAYMENT OF ZAKAT

In the context of the will of the deceased as a whole (and, in particular, the words "pay my debts, funeral and testamentary expenses, death, estate duties" with which it is associated) the expression "Zakat payments" in clause 4(b)(i) of the will refers, in my opinion, to a conscientious commitment entered into by the deceased during his lifetime, enforceable at law or in equity, against his deceased estate, for a payment of money or a payment in kind of a type recognised in his community as a Zakat purpose not proscribed by Australian law.
In my opinion, the deceased's testamentary direction to "pay … Zakat payments", if unqualified by the existence of a liability at law or in equity accrued by the deceased during his lifetime, is void for uncertainty because it would have to be construed as conferring on a legal personal representative a power, and a duty, to exercise the function of making unconstrained discretionary "payments" of an unspecified character and value to unidentified parties for a particular purpose or purposes of an indefinite nature: cf Tatham v Huxtable (1950) 81 CLR 639 at 653.
I have considered, but rejected, the possibility that the deceased's testamentary direction for the payment of Zakat might be supported by characterisation as a power of appointment: PW Young, C Croft and ML Smith, On Equity (Lawbook Co, Sydney, 2009), paragraphs [8.790]-[8.800]. The direction takes its colour from a clause which contemplates the payment of debts and testamentary expenses. It does not, in terms or effect, confer a power to dispose of or otherwise deal with estate property otherwise than in the payment of debts and testamentary expenses in administration of the estate according to the terms of the deceased's will.
Although the "rule against delegation of testamentary power" (associated with Tatham v Huxtable and explained in Gregory v Hudson (1997) 41 NSWLR 573 at 586, affirmed at (1998) 45 NSWLR 300) has been abolished by section 44 of the Succession Act 2006 NSW and has never applied to a bequest for charitable purposes (GE Dal Pont, Law of Succession (LexisNexis, Australia, 3rd edition, 2021), paragraphs [2.79]-[2.83]), clause 4(b)(i) is not a "power or trust to dispose of property" within the meaning of section 44 but, in substance, a testamentary direction to pay debts and, incidentally, is not limited to charitable purposes.
I do not accept that an unqualified direction to pay "Zakat payments" can be saved by an assumption that the deceased, or his estate, might have a "religious liability in the nature of a debt" arising from a religious obligation which, during the lifetime of the deceased, was no more than a voluntary obligation according to conscience.
Nevertheless, I lean against a finding that the deceased's testamentary direction to "pay … zakat payments" must fail for a want of certainty or that it serves no purpose other than simply lending support to characterisation of his will as a "Sharia will". In my opinion, the direction has work to do if construed as an implicit acknowledgement at the time of execution of the will that, at the time of death, the deceased may have bound himself and his estate, at law or in equity, to pay a debt (enforceable under the general law) in the nature of a Zakat payment.
In adopting this view, I proceed on the basis that Zakat, in the deceased's community, was a voluntary payment made according to the conscience of the payer as a living person not, without more, enforceable at law or in equity. For an obligation in conscience to become legally binding upon the estate of a deceased person he or she must have bound himself or herself, in life, by means of an agreement, promise or other commitment enforceable under the general law.
A Zakat purpose of a type intended to be promoted by the deceased might be one that would satisfy the test of a charitable purpose under the general law but not necessarily (for example, for a want of public benefit) the legal requirements of a "charitable trust". The concepts of a "Zakat purpose" and a "charitable purpose" may overlap, though they are not co-incident in all respects. A gift of property for a Zakat purpose may satisfy a donor's religious obligations but not satisfy the requirements of the general law for recognition of a charitable trust. A testator who seeks to establish a testamentary trust for a Zakat purpose should consult the general law of charities to ensure that the trust is consistent with the law governing charitable trusts.
In the context of his will, what the deceased contemplated by a "Zakat purpose" may reasonably be taken to be a purpose implicit in one or more of the eight categories of eligible recipients of Zakat derived from readings of the Qur'an (verse 9:60).
Implicit in a construction of clause 4(b)(i) of the will that ties the meaning of the expression "Zakat payments" to a commitment entered into by the deceased during his lifetime and enforceable at law or in equity is a need to identify a person or persons entitled to enforce a Zakat commitment entered into by the deceased during his lifetime. The clause does not permit an administrator of the deceased's estate (as a representative of the deceased) to incur a fresh obligation to pay Zakat as an incident of estate administration because an essential feature of Zakat under Australian law is that it is a personal commitment made by a living person, perhaps informed by principles taught by religious teachers within his or her community but entirely voluntary and the expression of a free and capable person.
With the consent of all affected beneficiaries, an administrator might apply estate property to the payment of an amount of money loosely characterised as Zakat, or in the nature of Zakat, but the legal foundation for such a payment is in the consent of the beneficiaries, not a testamentary direction such as clause 4(b)(i).
Although clause 4(b)(i) contemplates that any payment of Zakat is made before distribution of the deceased's estate to beneficiaries it, of itself, imposes on them no obligation to pay Zakat by reason only of their receipt of a gift under the will and it neither empowers nor authorises the administrator to pay, or to require anybody else to pay, Zakat as a condition of acceptance of a testamentary gift.
Although a testamentary gift can be made subject to a condition the acceptance of which may bind the conscience of a donee, there is nothing in the will of the deceased that renders entitlements of the deceased's children under the will conditional upon a payment of Zakat. Whether they pay Zakat from funds received in the administration of the estate of the deceased is a matter entirely for them according to conscience as it may be perceived by them individually.

CONCLUSION

Subject to allowing the administrator an opportunity to consider these reasons for judgment and the possibility that further directions may be necessary or appropriate in administration of the deceased's estate, I propose to make orders to the following effect: 1. Upon an assumption that she has received at the time of distribution of estate assets no notice of a claim for Zakat based on a cause of action accrued at or before the death of the deceased, ORDER that the administrator would be justified in distributing the estate of the deceased on the basis that no allowance is to be made for a payment of, or in the nature of, Zakat. 2. ORDER that the administrator's costs of and incidental to these proceedings be paid out of the estate of the deceased on the indemnity basis.
In the course of preparation of these reasons for judgment my attention has been drawn to a perceived necessity for legislative reform of "succession law" to accommodate what are perhaps best described as the idiosyncratic customs of communities that do not conform to the norms of mainstream Australia.
Under Australian law, a testator has freedom to order his or her affairs by means of a will, albeit qualified by the possibility of an application being made after his or her death for a family provision order. If a testator has conducted his or her affairs with due respect for the moral imperatives of his or her community's customs (for example, by professing and acting upon a genuine love of God) he or she cannot readily be blamed for any odium that attaches to the making of a family provision order the responsibility for which must be borne by the Court.
Upon an assumption that a person does not die intestate by choice, the rules of intestacy (presently found in Chapter 4 of the Succession Act 2006 NSW) might be thought unnecessarily in conflict with the customs of some idiosyncratic communities: notably (as appears in the paper of Professor Vines noted in paragraph 23 of these reasons and her other writings), not only those of Muslims, Orthodox Jews and Indigenous Australians.
Indigenous Australians can call in aid Part 4.4 (sections 133-135) of the Succession Act 2006 NSW, the provisions of which I reviewed in Re Estate Wilson, Deceased [2017] NSWSC 1; 93 NSWLR 119. That legislation empowers the Court, in effect, to vary the strict statutory rules for the distribution of an intestate estate so as to accommodate "the laws, customs, traditions and practices" of an indigenous community or group to which an indigenous intestate belonged".
In a postscript to my judgment in that case (93 NSWLR 153-154; paragraphs [188]-[192]) I invited consideration of a proposal that the basic provisions of Part 4.4 might be extended to the general population. I had in mind at that time a need to accommodate informal family arrangements typified by a next door neighbour who is as much a member of family as a blood relation but lacking that status and the status of a person eligible to make an application for a family provision order. If taken up, such a proposal could accommodate some of the concerns expressed in or about idiosyncratic religious communities.
Counterbalancing any proposal for legislative reform long these lines is a caveat that the grant of a fresh discretionary power to vary the standard statutory rules for distribution of an intestate estate may unnecessarily serve as an invitation to a family in conflict to rely upon the Court to resolve disputes within an idiosyncratic community when the prime responsibility for the due management of a deceased estate lies with each competent individual empowered to make a will. A "statutory will" for a person lacking testamentary capacity (for which Part 2.2 Division 2, sections 18-28, of the Succession Act 2006 NSW provides) is another story.

ADDENDUM (19 March 2024) On 19 March 2024, Lindsay J made the following orders and notations: (1) Upon an assumption that she has received at the time of distribution of estate assets no notice of a claim for Zakat based on the cause of action accrued at or before the death of the deceased, ORDER that the plaintiff, as administrator of the estate of the late Ahmal Abou-Khalid (who died on 9 December 2019), would be justified in distributing the estate on the basis that no allowance is to be made for a payment of, or in the nature of, Zakat. (2) ORDER that the plaintiff's costs of and incidental to these proceedings be paid out of the estate of the deceased on the indemnity basis. (3) RESERVE liberty to apply for further or consequential relief in the working out of these orders. (4) ORDER that these orders be entered forthwith.

Amendments 19 March 2024 - On 19 March 2024, an addendum was added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2024

Probate Act 1890(NSW)

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