Planning a will

Tuesday January 22, 2008
Planning a will
Articles of Law: By BHAG SINGH
Though the law provides for how property is to be inherited, sometimes the legal rules can work unfairly.
WE often hear of the importance of making a will. Many organisations offer will-writing services for the individual. Of course, there are many who do not like to talk about the subject because this means discussing action to be taken in contemplation of death. And different people have different perceptions about planning for such an event.
However, the fact remains that death is inevitable. The end of one’s life is the start of a chain of events, which revolves around the property left behind. Who gets what and how much becomes the next issue in this development when the grieving is over.
To whom and in what manner the inheritance will pass can be the subject of much heartache in some cases. The creation of a will can avoid much discomfort and inconvenience, and help minimise possible difficulties.
For those professing the Islamic faith, only a specific and lesser part of the estate can be willed away and even then to those not otherwise entitled as a matter of right under Syariah principles. In the case of non-Muslims, the Distribution Act 1958 will apply to regulate distribution if there is no will or if the distribution of the inheritance is not stipulated.
In the case of non-Muslims, there is a degree of freedom that is a near absolute to deal with one’s property and provide to whom and in what proportion it will go after the death of the donor.
Of course, those who enacted the law and amended it from time to time have done so to ensure that the devolution and transmission of property on a person’s death happens in an equitable manner. But in enacting laws, all the situations that are likely to arise cannot always be foreseen and this can result in an unsatisfactory scenario.
A reader wrote in to say that when his friend died, he left behind a wife and three children. There is only one house in which the family lives and just enough money for the children to attend a local institution of higher learning.
However, the friend did not make a will and as a result, his wife and children did not inherit the full share of the house he left behind. This is because the deceased’s mother is still alive though very old and hardly in need of the money. But her other children who are the brothers and sisters of the deceased insist that their mother must get her share.
Indeed this is the law because by virtue of section 6 of the Distribution Act 1958, the mother of the deceased would be entitled to one-quarter of the estate. Section 6 (1) (g) of the Distribution Act states as follows:
“If an intestate dies leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one-quarter of the estate, the issue shall be entitled to one-half of the estate and the parent or parents the remaining one-quarter.”
The reader wrote that the brothers of the deceased insisted that their mother should get her share. This is because he believes that when the mother dies, they will inherit the one-quarter share that she inherited. This puts the wife and the children of the deceased in a quandary because if they are compelled to part with a quarter of the house and a quarter of the money, their lives will be seriously disrupted, as will the children’s plans to further their studies.
This is indeed a sad situation. In an ideal scenario, the mother who does not need the money or the property is likely to give all or most of it back to the deceased’s family who needs it more and, therefore, no difficulty will arise.
However, in some cases the mother may be very advanced in age and is being looked after by her children who are the brothers and sisters of the deceased.
In such cases, theoretically, the quarter share will go to the mother of the deceased. However, in reality because of the advanced age and condition of the mother, the money and property is likely to go to the brothers and sisters of the deceased because the mother may not need the money or may not even be around after a while.
Should this happen, the family of the deceased will feel aggrieved for the brothers and sisters of the deceased will end up getting the mother’s share of the property.
The law in such circumstances causes an injustice in a manner of speaking. Its laudable purpose of wanting to provide for a parent would have resulted in serving no purpose in so far as the parent is concerned, and depriving the immediate family of what they view as belonging to them.
However, in the absence of a will, that is exactly the law. The unfairness of the situation highlighted here can be made somewhat less harsh by setting out appropriate provisions in a will so that the parent can be provided for and yet the property does not indirectly go to the brothers and sisters.
This can be done if the mother is given a life interest in the house and the money is held in trust for her to use during her lifetime; the balance goes to the family when she dies. In this way, the mother would have been provided for and any residue will remain with the immediate family.
In order to avoid the occurrence of such a situation, a person who has property and wishes to provide for his loved ones must understand the principles of law that govern inheritance. But that alone is not enough.
The person must also give thought to various possibilities and eventualities, and provide for a fair distribution of the inheritance, according to the events that actually take place.