Re: Wills that state they are to be interpreted under religious law
The courts are not going to get into which version of Sharia law applies. They want to apply “neutral principals of law.” The court will want something that can be applied mechanically and does not violate public policy. There are many cases of wills with religious requirements. Shapira v. Union National Bank 315 NE2d 825 (Ohio 1974). Requirement that son, Daniel Jacob Shapira, marry a Jewish girl the daughter of two Jewish parents within 7 years of dad’s death was upheld by the court. (I think there has been more than one movie with the time limit requirement.) What if he marries a woman who meets the requirements and they join Jews for Jesus? Maddox v Maddox, 52 Va 804 (Virginia 1854) Requirement that niece marry a Quaker was an unreasonable restraint because there were only 5 or 6 Quaker bachelors in the neighborhood. There may have been a different result if the niece had lived in Pennsylvania. Will of Bernard Manger set up a trust to pay for grandchildren’s college education so long a they go to Shabbat services twice a month. Two sons disinherited because they did not marry Jewish women. Senator Joseph Lieberman is the trustee. A settlement rewriting the will was agreed to with the two sons inheriting and their wives converting to Judaism in the orthodox manner. (Wall Street Journal August 25, 2000) Alan Armstrong Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 On Apr 29, 2011, at 7:07 PM, Douglas Laycock wrote: this seems rather obviously to be a homemade will (what American lawyer drafting a formal docunment would talk about kids instead of children), and if he had gotten proper legal advice, he could have left his money as he wanted, and preferred his sons to his daughters, with no limitation in any state except Louisiana I think. So in part the question is whether he can do indirectly what he could have done directly. But that's the question only if Islamic law is clear, and there's only one version on this issue. I don't know the answer, but there are said to be four main schools of Islamic law, and it seems unlikely that they all unambiguously agree on how to divide an intestate estate. But they might. I certainly don't know. On Fri, 29 Apr 2011 16:05:10 -0700 Volokh, Eugene vol...@law.ucla.edu wrote: Any thoughts about the case below? I think I'd raised this question before on the list, but the case offers an especially concrete example: In Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), Prof. Abbass Alkhafajihttp://www.post-gazette.com/pg/07268/820267-122.stm died, and left a will that apparently said, in relevant part, (4) About my pension, the beneficiaries are all my biological kids and my current wife, ... after reducing all costs associated with the house [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia (9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.” The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates ... to the decedent’s surviving spouse, ... in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, ... in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, ... and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.” This raises two questions: (1) May a court interpret a will — or a contract, deed, trust instrument, or what have you — that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? Here, one side argues that under Islamic law, the contested provisions of the will are invalid, and that the court erred in relying on the widow’s interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386: The Court’s determination that the pension should be distributed by giving the widow one eighth of the estate, with the remainder going to the children with two parts for each male and one part for each female, was not only a violation of
Wills that state they are to be interpreted under religious law
Any thoughts about the case below? I think I'd raised this question before on the list, but the case offers an especially concrete example: In Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), Prof. Abbass Alkhafajihttp://www.post-gazette.com/pg/07268/820267-122.stm died, and left a will that apparently said, in relevant part, (4) About my pension, the beneficiaries are all my biological kids and my current wife, ... after reducing all costs associated with the house [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia (9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.” The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates ... to the decedent’s surviving spouse, ... in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, ... in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, ... and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.” This raises two questions: (1) May a court interpret a will — or a contract, deed, trust instrument, or what have you — that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? Here, one side argues that under Islamic law, the contested provisions of the will are invalid, and that the court erred in relying on the widow’s interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386: The Court’s determination that the pension should be distributed by giving the widow one eighth of the estate, with the remainder going to the children with two parts for each male and one part for each female, was not only a violation of the terms of the MDA, but also an incorrect interpretation of Shariah law. Had the trial court consulted an expert or referenced judicial texts rather than an interested non-expert, it would have noted that the will offered by a person who is in the illness of death is invalid under Shariah law. The illness of death is defined as the illness which would most likely lead to death. In other words, had the court correctly interpreted Shariah law, it would have found paragraph four of Decedent’s most recent will to be invalid. Because Shariah law is codified in judicial texts which were referenced at the trial court level, and the trial court failed to consult those texts, it committed an error of law when it incorrectly interpreted Shariah law. (2) May a court apply a foreign or religious legal rule that requires discrimination based on sex, religion, race, and the like, when it is doing so in the course of interpreting a will, contract, etc., on the theory that the court is simply effectuating the author’s discriminatory preferences rather than itself engaging in constitutionally suspect discrimination? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wills that state they are to be interpreted under religious law
I'm not a TE expert, but as far as I know, if there were a will that required distribution to be in accordance with New York law, and the decedent died a resident of Pennsylvania, the Pennsylvania court would not be empowered to accede to the decedent's request (if there were any difference in outcome), because the applicable law is predetermined as the law of the state in which the decedent died resident. The point is that if someone wanted to distribute testamentary assets under a particular formula, (s)he would have to specify the distribution, and the state of administration would have to determine whether that distribution contravened its principles. In many states, one may not leave less than one-third of the estate to a surviving spouse, and there may be other rules of substance or construction referring to children--whether the bequest is per stirpes or per capita, for example. A bequest under Islamic law should fail for lack of specificity before you even get to the Constitutional question, and in any event has to be subject to the state's own rules governing wills or, if the entire will fails, intestacy. A contract of insurance, though, is a different matter--it's a contract, no more. One would have to construe the policy under contract law principles, including the parties' intention (proven with extrinsic evidence if the text is lacking). What's odd here is that it looks like the will is trying to distribute proceeds of an insurance policy that would have had its own beneficiaries specified (unless the policies specified the estate as the beneficiary). Vance On Fri, Apr 29, 2011 at 7:05 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Any thoughts about the case below? I think I'd raised this question before on the list, but the case offers an especially concrete example: In Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), Prof. Abbass Alkhafaji http://www.post-gazette.com/pg/07268/820267-122.stm died, and left a will that apparently said, in relevant part, (4) About my pension, the beneficiaries are all my biological kids and my current wife, ... after reducing all costs associated with the house [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia (9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.” The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates ... to the decedent’s surviving spouse, ... in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, ... in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, ... and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.” This raises two questions: (1) May a court interpret a will — or a contract, deed, trust instrument, or what have you — that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? Here, one side argues that under Islamic law, the contested provisions of the will are invalid, and that the court erred in relying on the widow’s interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386: The Court’s determination that the pension should be distributed by giving the widow one eighth of the estate, with the remainder going to the children with two parts for each male and one part for each female, was not only a violation of the terms of the MDA, but also an incorrect interpretation of Shariah law. Had the trial court consulted an expert or referenced judicial texts rather than an interested non-expert, it would have noted that the will offered by a person who is in the illness of death is invalid under Shariah law. The illness of death is defined as the illness which would most likely lead to death. In other words, had the court correctly interpreted Shariah law, it would have found paragraph four of Decedent’s most recent will to be invalid. Because Shariah law is codified in judicial texts which were referenced at the trial court level, and the trial court failed to consult those texts, it committed an error of law when it incorrectly interpreted Shariah law. (2) May a court apply a foreign or religious legal rule that
