|
‘Fighting’ a will
10/06/2008 The Star 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. |
