By Putik Lada by DIANA SULAMAZRA DATUK ABDUL RAHMAN
The law of succession is different for everyone. If no wills are prepared for non-Muslims, their properties would be distributed in accordance with the provisions in the Distribution Act 1958 and for Muslims, it is governed by the Syariah Law.
WHEN we were small, we always imagined everything to be equal, to be fair and square. As we grew up, we realised that the world can be anything but fair.
In law school, they taught us that the law should always be fair and equal. They also taught us that humans have always strived to achieve equality and every day we hear something about, among others, gender equality.
As I went through law school, I was and still am, intrigued by the law of succession, particularly the distribution of property.
I always thought that it would all be the concept of split-it-equally. Apparently that is not the case when it comes to succession, inheritance and the distribution of property.
The law of succession is different for everyone because it takes into consideration whether you are a Muslim or not, which state you are in, how large is your estate and whether you have acquired it jointly with another person.
To discuss everything would require me to come up with a whole textbook, so for the purpose of this article, I am just going to concentrate and summarise on matters of inheritance which generally applies to the younger generation as well as the difference between distribution of property for Muslims and non-Muslims.
I believe that there is still a group of people who are oblivious to the fact that the distribution of inheritance between a Muslim and a non-Muslim is different.
Growing up, I always had friends whose parents would transfer real properties to their names once they reached the age where they were able to hold such under their name.
During my attachment stint in a conveyancing firm a few years back, I also met some parents who would secretly transfer properties to their children’s names without their other children knowing. These would usually be as gifts for birthdays, graduation or weddings.
I also had a friend who received a spanking brand new BMW from his father as a graduation present!
Some of the unlucky ones, on the other hand, did not receive anything. Take me as an example, the car I am driving is still under my father’s name. Not that I have any problem with that.
But what I often wonder is whether these parents know what they are doing and whether they are doing it on purpose or just based on love and affection.
To my humble fresh-out-of-pupillage understanding, non-Muslims have little to complain about when it comes to matters of inheritance. If they want more control on who their properties are bequeathed to, then they could ask their lawyers to prepare a will.
Provided that the Wills Act 1959 and the Probate and Administration Act 1959 are complied with, their properties would be distributed according to each and every line written in the will.
If there are no wills prepared, then their properties would be distributed in accordance with the provisions in the Distribution Act 1958.
For Muslims, however, the distribution of the deceased properties are governed by Syariah law, in particular faraid law. The manner of distribution of property is provided in the Quran, Surah al-Nisaa (4) verses 11-12.
The distribution is subject to the disposal of the deceased’s properties according to his will, if any, and the settlement of all his worldly debts.
The general principle in Islamic law is that a Muslim may prepare a will to distribute his properties, but only one third of his properties can be distributed by a will. The rest would have to go through faraid law. This is to ensure that all of his heir or legatee would get their share of the deceased’s properties.
Under faraid law, usually the sons get a bigger share than the daughters. This may seem to be unfair to some but the rationale behind it is that men carry more responsibilities in raising and providing for their families and this would in return ensure the continuity of the bloodline.
One way to distribute your properties outside the shackles of inheritance laws is to distribute them as inter vivos gifts (gifts made during one’s lifetime) according to your wishes. These may be given as “gifts”, usually based on love and affection.
The benefits of such gifts is that you are able to distribute all of your movable or immovable properties any way you like to anyone according to your wishes, and at the same time saving your family members from the hassle of administration procedures as well as the possibility of painful disputes between family members.
This method also ensures that you are in control of the distribution of your properties.
The only downside would be the cost of the transfer of immovable properties. Examples of this include the group of parents who transfers a piece (or several pieces) of land or house to their son or daughter once they are 18 years old.
In my opinion, it is highly important for everyone to know about their rights and responsibilities under succession and inheritance law.
When one makes an informed decision, whether to distribute one’s properties while one is still alive or to leave it to the law upon their demise, a lot of headaches and heartaches can be avoided.
For me, I still believe enquiring about the distribution of property from our parents is a taboo because it is as if we are saying we cannot help but ponder about what will happen to all their hard-earned wealth upon their demise.
It involves the complicated mix of questions of love, affection, trust and obligations.
And for the younger generation, I believe it should always be in our contemplation, right from the moment when we open our first EPF account since we are required to nominate a beneficiary to the moment we purchase our first property.
As for what our parents decide to do, without being too greedy, let us hope they know what they are doing.
> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.
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