Monday, 14 February 2011

Division of property

ARTICLES OF LAW By BHAG SINGH



A person may not care much about what happens to his property in the event of his demise, but this may change once he gets married.

WHEN a person gets married, it is a turning point in more ways than one. In most cases, it can involve a change in lifestyle and the way in which things are done. One significant area is property rights. For working couples, each party may have his or her own property or assets. This could be in terms of money, landed property or other security. It may have been inherited or acquired through the person’s own efforts.

After the parties are married, whatever is acquired may be said to have been earned through the joint efforts of both and therefore belongs to them jointly. Of course, it need not be the case that each has contributed equally in financial terms. This is because a contribution can be made in many ways.

However, prior to the marriage, the people closest to each individual would usually be the parents and siblings, though this may not always be the case.

At this stage, an individual who is single may not give much thought to the subject. He or she may be quite happy for the parents or siblings to sort matters out if anything happens. In fact, at a young age, the question of such an event happening would not be given much thought.

However, different matters may have to be considered after an individual gets married. Initially it would be concern for the spouse should anything happen. The need to provide for the children will also be given due attention, when there are additions to the family.

Even though a person may get married, the need to care for parents or siblings may not immediately cease. So how does one ensure a balance between care for the parents and siblings who need help, and the spouse and children?

This is especially so when an individual who is married continues to care for his parents and siblings who may need help. The option to make such choices through the use of a Will on an unqualified basis is only possible in the case of non-Muslims.

In the case of Muslims, the syariah law lays down who the beneficiaries are and in what proportion they are entitled to the inheritance. One-third of the estate can be willed away to non-beneficiaries but the legal beneficiaries cannot have their shares altered.

Back to non-Muslims, in the absence of a Will, a person who dies leaving a wife, children and parents, will see one-quarter go to the parents. In cases where the parents are well-off, the one-quarter that goes to the parents may appear unnecessary, if all that the individual has is required by the immediate family.

In such a case, one would expect the parents to waive their entitlement in favour of their daughter-in-law and grandchildren who may need the money more. However, in some cases the parents may be very old and dependent on their children, that is, the brothers or sisters of the deceased. In such a case, the decision made by the parents may be influenced by their other children who may be eyeing the former’s entitlement.

Options

Whilst this may appear unfair and unlikely to happen, it is unfortunately a fact of life that relationships can count little when money is involved. Human greed often assumes a more prominent place in the mind of the individual concerned in such a situation. It is thus necessary for the individual, when he gets married and starts his family, to evaluate and balance the various needs.

When the children are not yet in sight, the needs of the wife who is also working, are likely to be less. This situation can allow for a bigger part of the estate to be left to needy parents and siblings or other relatives. However, the parents may pass away and the needs of the siblings may get smaller. Or the needs of his own immediate family may have increased.

The Will then can be changed to meet the children’s needs. A Will is not an inflexible document. Its contents or provisions can be changed depending on the circumstances. A Will is only effective when the testator, that is, the person making the Will, dies.

Thus a testator who makes a Will to give property to his immediate family, can where the circumstances require and warrant, revoke the Will and give everything to charity. If this is done, there is nothing the immediate family can do. The rights of the testator are extensive.

However, the usefulness of a Will lies in the testator being able to provide for the needs of those he cares for. To achieve this purpose, the testator needs to be alert to changes in circumstances so as to make the necessary adjustments. Failure to do so can have the effect of defeating the objectives and intentions of the testator at a material time. If in such circumstances changes are not monitored and acted upon, it may well result in unfairness to those it was intended to help.

Then again, there are those who do not get married or having been married, for one reason or another, are single again and have no children. In the case of such persons, as they grow older, assets are likely to increase.

Such persons may think differently with regard to what happens to their property after their demise. Instead of letting the law take its course, they may well chose whoever they like to pass on the property. This could include people who have been near and dear to them or a charitable cause or a cause that they are passionate about.

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