Daughter disputes Muslim will that gave brothers twice as much

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Daughter disputes Muslim will that gave brothers twice as much

Sharia.

Daughter disputes Muslim will that gave brothers twice as much
The Australian March 14, 2012

THE Supreme Court of the ACT has stepped into a bitter dispute over whether a devout Muslim's three sons should each inherit twice as much as her daughters on the grounds that "one boy is equal to two girls". The case, known as Omari v Omari, involves Mustapha and Mohamed Omari, who want their mother's estate divided according to Islamic law, under which they would inherit one full share for every half-share given to their sisters.

One of those sisters, Fatma Omari, objects, saying it is Australian law, not Islamic law, that must apply, meaning all the children would get the same amount from their mother's estate regardless of gender.

The case came before Master David Harper in the Supreme Court in Canberra last week.

It concerns the estate of Mariem Omari, who was born in Turkey in 1928 and died in a Canberra nursing home in 2009.

The court heard that Mrs Omari married a cousin when she was 15. Her first child was born when she was 16, and seven more children followed. Five of the eight are girls.

The family moved to Australia in the late 1970s and Mrs Omari lived the rest of her life in the Canberra suburbs.

She spoke Kurdish and "never learned to read or write in any language".

Although she lived in Australia for 30 years, her spoken English was "limited to a few words needed to make a purchase at a shop".

The court was told Mrs Omari began showing signs of dementia in the late 1990s, and by 2000 she had begun leaving her house to wander the streets of Canberra, looking for ways to "return to her home (but) she had no idea where her home was".

In 2002, Mohamed and Mustapha discovered their mother did not have a will. They obtained a template from an imam at the Canberra Islamic Centre, and filled it out according to Islamic custom. (The size of the estate was not given in court, but includes the family home in Flynn, and an investment unit in Belconnen, over which another family dispute is brewing.)

The brothers then drove their mother to the Jasmine Lounge restaurant in Curtin, where the proprietor, Mohamed Haydar, had agreed to act as witness.

A Canberra justice of the peace, K K Haque, was also present.

When Mr Haydar asked Mrs Omari if she knew why she was there, she said: "Yes, I am coming here for my will, but please, sons, I fear God, I am a Muslim woman, make sure you do the right thing here." Mr Haydar asked if she understood that the will divided the property "in accordance with the Islamic faith" (whole shares to the boys, and half-shares to the daughters).

Mrs Omari replied: "I understand but I don't read or write."

Mr Haydar then read out each paragraph in Arabic (it's not clear that Mrs Omari spoke much Arabic; her first language was Kurdish) but she nodded, and executed the will by making a thumbprint in ink on the bottom of each page.

Six weeks after the will was signed, Mrs Omari went into a nursing home; seven years later, she died.

The warring siblings appeared opposite each other in court, with Fatma asking Mohamed why he had arranged for their mother to draw up such a will.

He replied that "it was the obligation and responsibility of children to remind parents of their obligation to make a will", while Mustapha said his mother had told him that she wanted "the laws of the creator, Allah, God, to be applied in the division of my wealth".

Fatma argued that the will was not valid because her mother had shown signs of dementia long before it was drawn up, and her brothers had admitted as much, during an earlier court dispute over the unit in Belconnen.

The brothers argued that even if the will was not valid, the children were obligated to distribute the estate according to Islamic law. Fatma said that might be true in Muslim countries, but not in Australia.

Mustapha said the principle "applied everywhere, except where people were forbidden to practise Islam but thankfully Australia (has) freedom of worship" and therefore the estate should be divided in accordance with "laws that have stood for 1400 years".

Mr Haydar, who lived in Australia for 25 years, told the court it was well known in the Middle East that a daughter was to take half as much as a son.

The imam of the Canberra Islamic Centre, Adama Konda, agreed that the "standard expectation is that a Muslim will leave full shares to sons and half-shares to daughters" because "one boy is equal to two girls".

Master Harper said he believed the sons were trying to do the right thing by ensuring that their mother did her "duty under Islam to make a will leaving full shares to her sons and half shares to her daughters". But he said the evidence suggested that Mrs Omari was suffering dementia, and therefore the will was not valid, despite the fact that "she might well have decided to make a will in the same or similar terms".

The court declared Mrs Omari intestate, meaning her estate must now be divided by the Public Trustee in accordance with Australian law, which would normally mean that the children would gain an equal share regardless of gender. An appeal is still possible.

Mustapha Omari was last night seeking legal advice before commenting on behalf of the sons; Fatma now lives abroad, and could not be reached.