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Family Provision and Islamic Wills: Preserving the Testator’s Wishes through Testamentary Arbitration?


Brooke Thompson

This article examines how testamentary arbitration according to faith-based principles might be employed in Australia to preserve an Islamic testator’s wishes where a dispute about the will arises. First, this article explores the key differences between Muslim and Australian inheritance law to demonstrate the potential for successful challenges to Islamic wills. Then, this article highlights how arbitration provides a framework in which to allow citizens to arbitrate disputes according to faith-based norms. Finally, this article examines the feasibility of testamentary arbitration in Australia. This article is concerned with two questions: first, whether inheritance disputes are presently capable of being settled by arbitration in Australia; and second, whether parties to a will dispute can (or should) be forced to submit to arbitration as opposed to litigation in the courts where the will in question contains an arbitration clause.

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(2023) 46(1) UNSWLJ 205: