ARTICLES OF LAW : ‘Fighting’ a will

Tuesday June 10, 2008

‘Fighting’ a will

ARTICLES OF LAW

By: BHAG SINGH

The will of a non-Muslim effectively disposes of his property. The only possibility of some modification is where there are dependents with disability or acute need.

ONCE the grieving is over following the death of a family member or relative, the attention of those left behind invariably turns to the material aspects of what has been left for them.

Family members always expect that they will get something when either parent passes away. The expectation may be with regard to the whole property or at least part of it. However, when the expectation is not met, there is likely to be not only disappointment but also friction.

A reader is unhappy that his father has left the family home to the only son for the reason that the son does not have a house of his own. At the same time, the youngest daughter has been appointed Executrix and Trustee, with the property not to be sold until the son is 60 years old.

This has come as a surprise to the other siblings who say that they and their mother expected equal and fair share of the property and want to know whether they can “fight” for this. They are also concerned about the involvement of their younger sister because of her husband’s financial problems.

The family involved are Hindus. I mention this because the law in relation to inheritance differs between Muslims and non-Muslims. The discussion that follows is applicable to non-Muslims. Of course, how the situation is different when it comes to a Muslim will also be touched upon.

No legal right

There is no principle of law that all the family members must get a fair and equal share of the property of a deceased person. Whilst the meaning of “equal” is quite definite, “fair” can mean different things to different people in different circumstances.

Where there is a will, the property will be passed on according to the stipulations in the will. Any person who is unhappy with the will has the option to challenge its validity. If the will cannot be invalidated, then it will govern the inheritance.

If the will is invalidated or there is no will, then the entitlement to the inheritance will be on the basis of the Distribution Act 1958.

Under this Act, if a person dies without leaving a will but leaving a wife and children, the wife will get one third and the children will get the rest equally.

Here the deceased has, by will, left the entire property to his son for the reason stated. In fact, a person bequeathing property in a will to a specific person is not at all obliged to explain. But that he has done so makes no difference.

Intention

The role of the youngest daughter, who has been appointed Executrix and Trustee under the will, is merely to administer the estate.

That the beneficiary under the will who is now 48 years old has been restricted from selling the property for the next 12 years suggests that the deceased was concerned about keeping the property intact and the son continuing to have a roof over his head.

In this whole episode, the operative document is the will of which the other children want to get a copy. Ordinarily, this would be a simple matter but here they are all not on speaking terms.

The only way to see the will if the other party does not co-operate is to challenge it. However, this will involve going to court and if the challenge is without merit, it would only mean incurring additional costs.

The other children are not happy with the youngest daughter being appointed the Executrix and Trustee.

An Executrix and Trustee merely administers the estate and is not a beneficiary, and is not entitled to any part of the property.

The Executrix and Trustee cannot make use of the property for her own benefit. She could claim expenses for the role played but that is different from being a beneficiary. If she does not carry out her responsibility, it is for the beneficiary to complain.

Exceptions

Is there any way in which the other children could get their hands on any part of the property?

Unless there is an exceptional situation, the other children would not have any right to interfere in the way the property has been passed on.

There is, of course, power under the Inheritance (Family Provisions) Act, 1971 for the Court to assist by making an order for a reasonable provision to be made where the dependents are in real need.

A dependant here refers to the wife or husband or an unmarried daughter, or offspring who, by reason of some mental or physical disability, is incapable of maintaining himself or herself, or an infant son.

If the court, on the application of such a dependant, is of the opinion that the disposition of the deceased’s estate affected by his will, or the law relating to intestacy, does not make reasonable provision for the maintenance of that dependent, an order for maintenance can be made.

The effect of the provision is not to give the dependents a share but only to provide for maintenance in circumstances where the surviving spouse is entitled to not less than two-thirds of the income of the net estate and where the only other dependent or dependents, if any, is or are a child or children of the surviving spouse.

Any such periodical payment is not entirely unrestricted as to its duration. Such payment will cease in the case of a wife or husband, her or his re-marriage and in the case of a daughter who has not been married, or who is under disability, her marriage or the cesser of her disability, whichever is the latter.

An infant son on his attaining the age of 21 will cease to get the maintenance and in the case of a son under disability, the cesser of his disability and in other cases the earlier death of the person so entitled will have the same effect.

If therefore the will is valid then at most, the other children could expect to receive some money for their maintenance but they will have to bring themselves within the category of the persons referred to above and this will not be easy.

Even then, it will not be a share in the property that they will get.

As stated earlier, the above discussion would not apply to Muslims. This is because under Syariah law principles a person can only will away one-third of his property to non-beneficiaries and cannot alter by will the share which the immediate members of the family are entitled to.

Finally, of course it must be pointed out that the above principles and considerations only apply where the property is given away under a will or has to be distributed on intestacy.

Where the deceased has transferred out all his property during his lifetime the situation would involve entirely different considerations for everyone.