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Reviewing international inheritance laws for International Women’s Day
Mar 17, 2020, 15:03 PM
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Mar 17, 2020, 15:02 PM
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To mark International Women’s Day on Sunday 8 March this year, partner Claire-Marie Cornford and solicitor Sarah Smith from Irwin Mitchell reflect on recent legal developments concerning inheritance rights for women in England and Wales and overseas.
Like many countries in Northern Africa and the Middle East, Tunisia's inheritance laws are based on Sharia which provides that women are only entitled to half the inheritance their male relatives receive.
Following the creation of the Commission for Individual Freedoms and Equality and to mark Tunisia’s National Women’s Day on 13 August 2018, President Essebsi agreed to one of the Commission’s main recommendations, namely promising to propose ‘a bill for gender equality in inheritance’.
In November 2018 the draft bill was approved by Essebsi’s cabinet and referred to Parliament. The President's proposals include an opt-out provision, so although equality would be the default position, individuals could expressly opt-out of leaving their estate equally between their male and females heirs in their will. Regrettably, the momentum for reform has been put on hold following President Essebsi’s death in July 2019, with the legislation yet to be passed by Parliament.
Senior religious leaders in Egypt were amongst those who condemned Essebsi’s proposals for the reform of inheritance rights for women in Tunisia; however, this did not dissuade Huda Nasrallah, a human rights lawyer and Egyptian national from challenging the country’s inheritance laws.
Following her father’s death in December 2018, Ms Nasrallah launched a legal claim to an equal share of her father’s property which had been left to her brothers. Ms Nasrallah successfully argued, with the support of her brothers, that as a member of the country’s Coptic Christian community her family was not bound by the Sharia principles and in November 2019 the family court ordered that she was entitled to an equal share of her late father’s estate.
Ms Nasrallah’s successful legal challenge follows further positive change in Egypt with Parliament amending the provisions of their inheritance laws in December 2018. The amendments to the legislation provide that if an heir, whether male or female, is denied their inheritance the personal representative may face a prison sentence or fine. Although amending the legislation is progress, it does not overcome the issue that women across the world often face: their families do not support their claim; they do not know their legal rights; or they lack the financial means in which to enforce their rights.
England and Wales
Private client practitioners will be familiar with the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) which provides that certain categories of women (and men) have the legal right to seek greater financial provision from an individual’s estate. However, the problem remains that often women do not know of their rights under the 1975 Act or the short 6 month timeframe in which they must issue a legal claim without first having to seek permission from the court as demonstrated in the recent decisions of Cowan v Foreman, Begum v Ahmed and Thakare v Bhusate.
In Begum v Ahmed the Deceased made no provision for Ms Begum, who claimed to be the Deceased’s wife by virtue of a ceremony in Pakistan in 1991. The principal asset of the estate was the Deceased’s property, where Ms Begum had lived since the early 1990s.
During the course of the proceedings to seek possession of the property, the Judge asked if an application had been issued pursuant to the 1975 Act. Consequently, Ms Begum issued a counter-claim under the 1975 Act and subsequently a Part 8 claim was issued on 2 February 2018, nearly 16 months after the expiry of the 6 month period following the issue of the grant of probate. In the widely reported decision of Cowan v Foreman, the delay was 17 months.
If a claim is not issued within the 6 month period following the grant of representation, the claimant must first seek permission from the court to pursue a claim. In both cases, the Court of Appeal overturned the decisions at first instance and granted the claimants permission to pursue their claims after the expiry of the 6 month period.
At the start of this year the decision in Thakare v Bhusate was handed down. In short, Mrs Bhusate issued an application to bring a claim for financial provision from her late husband’s estate pursuant to the 1975 Act, over 25 years out of time. The decision of Chief Master Marsh was upheld on appeal and Mrs Bhusate was granted permission to pursue her claim notwithstanding the ‘exceptional’ period of delay of nearly 30 years after her husband’s death.