Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Abstract

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.