Probate Law and 9-11

Osama bin Laden is dead. Why care? Because it opens the door to probate claim litigation in his estate for 9-11 victims.

Osama bin Laden evaded civil liability for 9-11 and other terrorist attacks prior to his death because no process server could find him.

Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.

If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.

Of course, the probate issues in these kinds of cases are non-trivial. Bin Laden was a Saudi Arabian national and at the time of his death was domiciled in Pakistan, both jurisdictions that use Islamic law as determined in Shari'ah courts to determine the inheritance rights in the estates of Muslim decedents like Bin Laden. In rem jurisdiction would also be present, under general Anglo-American and civil law principles, in jurisdictions where Osama bin Laden owned property. My understanding is that he was disinherited by his family, so none of the substantial inheritance to which he would otherwise have been entitled would be available to him or to his creditors.

Testamentary freedom is limited in the Islamic law regime, with only one-third of an individuals estate distributable to a non-designated heir, and I am not familiar with how it handles claims arising from the acts of decedents. Western legal systems typically provide some priority in an estate for spouses and children of a decedent over the claims of tort creditors. Also, it is likely that Bin Laden dedicated a significant share of his wealth to religious organizations which he controlled, rather than personally owning that wealth.

Shari'ah law does provide for the payment of "blood money" (diyah) when one causes the wrongful death of another, a remedy that parallels that of a civil suit, but there is not consensus among scholars of Islamic law over whether the 9-11 terrorist event was wrongful. Some Islamic law scholars have issued proclamations stating that the attack was wrongful under Islamic law, but Bin Laden likely had conferred with an Islamic law scholar, or had the authority as an Islamic law scholar himself, to determine that the attacks were conducted pursuant to a valid Jihad.

Not surprisingly, the Quran, which is the primary source of authority in Islamic law, is particularly sparse in resolving issues of jurisdiction, venue and collateral estoppel in a system of Shari'ah law courts that has no one central organization and was mostly not in place at the time that the Quaran was written.

Indeed, from a formal structural perspective, a large share of all the schisms and conflicting interpretations of Shari'ah within Islam that divide it into religious sects and national polities have this lack of clear canon law jurisdictional rules at their root. The problem is somewhat less acute in Shi'ite Islam, where there is or was for a long period depending on the sect, a living person to adjudicate these disputes, than for Sunni Islam, but in Shi'ite Islam, disputes over the legitimate order of succession among Imams (itself a quasi-probate issue) produced similar schisms.