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Australian Law Reform Commission - Reform Journal |
Reform Issue 81 Spring 2002
This article appeared on pages 34 - 37 of the original journal.
Cultural conflict or enriching dialogue? Cross-cultural issues in will-drafting
By Prue Vines*
Australia’s multiculturalism can have some consequences for lawyers which are not always well recognised.
One issue few solicitors have trouble recognising is that which arises when a client is of foreign origin and owns property in the foreign jurisdiction. This is a problem solicitors handle often and manage as a matter of course. It is useful then to understand aspects of the foreign legal system in order to prevent wills failing or causing unforeseen problems in the legal system, but the area of law known as conflicts of laws or private international law will handle most such issues.
However, sometimes it is not so obvious that there is a conflict between the solicitor’s normal cultural assumptions and those of the client. When solicitors draft wills in Australia they therefore need to be careful about a range of assumptions they might make about the testator and the testator’s cultural assumptions or values. By ‘cultural assumptions’ I mean the assumptions one makes about what is ‘normal’ because of one’s cultural background. This includes matters like who is regarded as part of the family, what should happen to property on the death of its owner, what property can be owned and what should be communal property, the status of women, the status of children – when is one grown up, for example – and so on.
The art of taking instructions
This article does not aim to argue that every solicitor needs to know every aspect of other legal and cultural systems. The argument is that solicitors who display some cultural sensitivity and take the time to listen and find out the background assumptions of their clients will write better wills and be more likely to keep their clients’ estates out of court. Such litigation drains estates and interferes with the testator’s intentions.
A person who is drafting a will for such a client should translate a cultural position accurately into legally valid language. The aim is to take proper instructions about what the testator intends to do with his or her estate. This has many pitfalls and, as well as legal drafting skills, requires the drafter to be an excellent interviewer and listener. This may include being alert to cultural taboos, such as a taboo which some Chinese clients may have about talking about death.
Interpreters
In Queensland the witness-beneficiary rule (the rule that a person who witnesses a will cannot benefit from it) has been extended to include interpreters.1 That is, a person who is an interpreter for the purpose of making a will cannot receive a benefit under the will. If the testator gives them a gift in the will, the gift will be void and have no effect. Although the rule does not exist in the other Australian jurisdictions, this is a salutary reminder of some of the issues to be taken into account when a client does not speak or read the language the will is to be drafted in.
When a client needs an interpreter it is always best to use a professional interpreter who is not personally linked to the client. Unfortunately, when clients give instructions for a will, it is easy to slip into the informality of having a relative interpret for them. It is common for children of migrants to interpret in many situations, but this can raise legal issues of undue influence or concerns about the real level of knowledge and approval the testator had about their will. For example, if a child comes with a parent and interprets, saying ‘My mother says she wants her estate to go to me,’ there may be no way of checking the mother’s real wishes. This may expose a perfectly innocent child to allegations of undue influence, or it may allow a greedy child to distort their mother’s actual intention in order to benefit themselves. It is wise therefore (and imperative in Queensland) for a solicitor to use professional interpreters at all stages of the process but, if this is not possible, then at the very least a professional interpreter should be used at the stage where the will has been drafted and is being checked by the testator to ensure that the contents are what they wish.
Unrecognised cultural assumptions
Wills are drafted so that a person can pass property to other people on the first person’s death. Wills often reflect the importance people place on certain types of property and on particular family members. All these things can be affected by cultural assumptions.
Real difficulties arise when the conflict of cultural expectations between solicitor and client is unrecognised. For example, a client is a Muslim living in Sydney. He asks a solicitor to draft a will dividing his property between his two sons and one nephew. He tells the solicitor he has two daughters. What does the solicitor assume from this? The solicitor may assume that the man has fallen out with his daughters, and draft a will leaving property to the sons and nephew on the basis that those are the client’s instructions. Alternatively, the solicitor may try to persuade the client to leave the daughters something in the will because otherwise they may challenge the will under family provisions legislation, and would probably win. What the solicitor may not know is that the client is assuming that the Islamic rules requiring the sons to look after their sisters will protect the daughters. Islamic law separates the laws of inheritance from family law, which protects women by ensuring that their brothers or husbands look after them financially to the extent of the man’s wealth and beyond.2 However the common law does not do that, and a will drafted on these instructions might not carry out the testator’s intentions. If the daughters get nothing, the sons might look after their sisters if they are sufficiently devout as Muslims; but what if they have become acculturated to Australia? The daughters may not be protected as the testator expected.
A solicitor who recognises that there may be different expectations and is aware of the Islamic law’s emphasis on protection of women may write a different will for the client. The solicitor might explain that giving the property to all the children, or creating a trust benefiting the daughters, might better reflect the Shariah law than the will the client originally asked for, and have the advantage of being less likely to be challenged under family provisions legislation.
Jewish clients may well wish to have wills made which reflect the requirements of the Torah. There are strong similarities in the law of wills of Talmudic (Jewish) law and the common law because the common law relating to wills grew out of canon or church law, which in turn grew out of Judaism. However, there are also significant differences. Under Talmudic law, prima facie, daughters are not heirs, and the first born son is entitled to a double share, but he should give his sister a dowry. The husband is heir to his wife, but the wife is not heir to her husband, though she may claim maintenance and lodging from the estate. These heirs inherit regardless of a ‘will’. A person who is not one of the traditional heirs may be given something under a will, but traditionally this was supposed to be done by the deceased divesting himself of the property in his lifetime and merely keeping a life estate. The rules are extremely complex,3 but since Talmudic law recognises that the law of the state in which the Jewish person lives should be accommodated as far as possible, it is relatively easy to prevent conflict between the two systems.
Aboriginal people are relatively unlikely to make wills in Australia, but there are good reasons for arguing that they should be encouraged to make wills in order to protect customary law and maintain recognition of kinship obligations. Intestacy laws do not manage Aboriginal people’s needs at all well.4
Cultural misunderstandings may well occur between a solicitor and an Aboriginal client. Solicitors drafting wills may tend to focus on knowing what property is owned, and they may also make unwarranted assumptions about who is meant by certain family members. Words like ‘mother’, ‘daughter’, ‘son’, brother’, ‘nephew’, niece’ and ‘cousin’ may not mean to the Aboriginal client what the solicitor thinks they mean. For example, in some Aboriginal groups the children of same sex siblings may be regarded as children of those siblings – that is, children we would treat as cousins would be treated as each other’s siblings and an aunt/niece relationship might be treated as a mother/child relationship.5 This language may reflect the kinship obligations owed between those people.
A further cultural conflict can arise because western ideas of property manifested in the common law tend to see property as a commodity which can be bought and sold and dealt with by an individual. Aboriginal people, whether urban or traditional, may not see all property that way. They may regard property as owned communally or, if owned individually, they may regard it as custodial property rather than a commodity – that is, they may regard it as something which they must look after in order to pass on. It is thus a source of obligation rather than a mere commodity. This may require different kinds of will-drafting, such as a greater use of trusts, to reflect the differing cultural view of what property is.
When cultural values conflict
It is harder to decide what to do when the client has values that the solicitor feels conflict with human rights or the values of the common law. The examples above show that in many situations the values of the common law and the cultural values of the client can accommodate each other. Indeed, much of the discussion above is aimed at showing that often the perception of conflict may not be accurate. The example with Islamic law above shows that the perception that women are not considered in Islamic inheritance law fades away when one considers Islamic family law and its insistence on the care of females by male relatives. However, Australian ‘mainstream’ culture considers that women should be able to care for themselves, take control of assets and not merely be cared for. In the law of succession this has frequently translated into a position where a woman who is given a gift in a will in the form of the benefit of a trust (controlled by another person who is trustee) or a life estate (which prevents her from selling the property, for example) may apply to the court and succeed in having the trust or life estate struck down and the gift given to her as an absolute gift.
Conflicts like this may be extremely difficult to resolve because they are based on fundamental beliefs – on the one hand the belief that the religious or cultural tradition should be followed because it is right; on the other hand, the belief that women should be treated equally with men because it is right. Such values are not easily relinquished. For a solicitor this may create a professional quandary.
A question of balance
In 1992 the Australian Law Reform Commission (ALRC) considered this problem in its report on Multiculturalism and the Law.6 The ALRC considered that dealing with such competing values required the consideration of universal principles such as human rights instruments to which Australia is a party and, where those rights appear to be in conflict, to try to balance them. The classic example is religious freedom which might be in conflict with the rights of women. The ALRC suggests some basic principles7 which might be adapted to help balance such conflicts in the will-drafting situation:
• Laws should apply equally to all without discrimination; there should not be different rules for different people on the ground that they belong to a particular ethnic group.
• Within the limits necessary in a free and democratic society, each individual should be free to choose, to maintain and to express his or her cultural or religious values.
• The law should take account of a person’s individual cultural experience, values and attitudes when it is relevant to do so, should not be discriminatory and should not jeopardise the rights of others.
• Equality before the law and equal access to the law require the removal of communication barriers, whether arising from language or from lack of understanding.
In the will-drafting context this suggests that it is important to allow people the expression of their cultural and religious values, but that that expression must be balanced against the rights of others. It is important to carry out this balancing on the basis of real understanding of the cultural values of the individual and on a recognition of the complexities involved and the need to balance out the requirements of that individual with the others surrounding him or her in Australian society and the requirements of the common law.
Conclusion
Ultimately a solicitor’s job is to carry out the instructions of the client. When one is drafting a will, the object is to draft the will so as to embody the testator’s intentions about what is to happen to their property after they die. This is the test of a satisfactory will. Where there are cultural differences between the will drafter and the client, the task is harder, but it is in no way impossible. The challenge created by such situations is one of the joys of practising law in a society enriched by many cultures.
* Prue Vines is a Senior Lecturer at the Faculty of Law, University of New South Wales.
Endnotes
1. Succession Act 1981 (Qld), s 15A.
2. Islamic law is extremely complex and there are many different forms of Islamic law. The two main forms are Shi’a and Sunni. Shi’a gives women a larger share of inheritance and females are not excluded by males further down the line of inheritance (for example, daughters are not excluded by grandsons). Sunni is divided into four main schools: Hanafi, Maliki, Shafi’i and Hanbali. Sunni inheritance law gives priority to males further down the line of inheritance than females closer to the deceased. The world population of Sunni Muslims is much greater than Shi’a, but all groups are represented in Australia to some extent. See R Atherton and P Vines, Australian Succession Law: Families, Property and Death, (1996), Butterworths, chapter 2.
3. M Elon, Principles of Jewish Law, Encyclopedia Judaic, (1974), Jerusalem.
4. See P Vines, ‘Wills as Shields and Spears: the failure of intestacy law and the need for wills for customary law purposes in Australia’ [2001] IndigLawB 80; (2001) 5(13) Indigenous Law Bulletin 16.
5. I Keen, ‘Kinship’ in RM Berndt and R Tonkinson, (eds) Social Anthropology and Australian Aboriginal Studies, (1988), Aboriginal Studies Press, Canberra.
6. Australian Law Reform Commission, ALRC 57, Multiculturalism and the Law, (1992), Sydney.
7. Ibid, para 1.29.
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