Forced heirship and Jersey trusts—the Islamic perspective

Abstract

Abstract Sharia law is very specific about how a deceased person’s estate is to be divided between their close relatives. For those of Islamic faith who wish to have more freedom in these cases where there is difficulty in freely passing wealth down to family members, the concept known as “forced heirship”, Jersey trusts law may provide one solution. Under Jersey trusts law, the settlor has complete freedom over how the property is to be held and who should benefit from the trust. Article 9 of the Trusts (Jersey) Law 1984 sets out that where a testator who would otherwise be subject to forced heirship provisions settles property on a Jersey law trust, all matters in respect of the trust shall be determined by Jersey law, even if there is another conflicting law at play. Article 9 also provides that no judgment of a foreign court will be given effect to the extent that it is inconsistent with Article 9. Jersey’s firewalls have not been tested specifically with regard to Sharia law forced heirship claims. However, they have been shown to be robust in respect of other foreign law claims. There are some practical constraints which could weaken the protection afforded by Article 9, e.g. where the assets are not located in Jersey so that a foreign court would have jurisdictional reach over the assets. As such, one should consider carefully how to draft the trust documents in order to mitigate such risks.