INHERITANCE AND PROPERTY DISTRIBUTION

Publishes by The Daily Star on Aigist 14, 2010 (Link Above)

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Reader’s query
My father has three brothers. My grand father wants to give his property in writing to his two sons excluding one of my uncles. This is because my uncle has married on his own and against the will of my grand father. Please advise what my uncle can do to get his due share of his father’s (my grand father) property? Or can my grandfather legally exclude my uncle from inheritance?
M. M. Khan, Eskaton

Response
Thank you very much for your query. I would also like to take this privilege to thank the readers for regularly following my advices and coming back to me with their manifold queries and very often with their kind words of great admiration.

Mr. Khan, I understand that your grandfather has three sons and he is willing to distribute all his properties to two of them, excluding one of your uncles. Though you have mentioned the reason of your grandfather’s such desire, it is not as such very material for our discussion purpose.

Please be advised that as long as your grandfather is alive, there is no right of inheritance over his property. The right of inherence accrues only after the death of the person. Consequently, the legal heirs cannot assert any right whatsoever over the property of their father during his lifetime. In such a scenario, your grandfather is absolutely free to deal with his property in whatever manner he wants to deal with the same. He is not legally obliged to give his property even to any of his sons/daughters! He may settle on selling all of the properties or to give everything to third parties. Though this is practically difficult to accept for the children, particularly in our local perspective where the children generally look forward to acquire properties by way of inheritance.

If your grandfather gives all his properties to two of his sons excluding another one, honestly speaking there is no legal prohibition thereto and hence your uncle will have no legal way to stop this. On the other hand, if your grandfather is not willing to distribute the property during his lifetime but is willing to give effect to such distribution after his death by executing a will/wasiatnama, then your uncle may have a remedy. Under the Muslim law, any Will made in favor of any legal successor shall not be valid, unless all the other legal successors consent to the same after the death of the testator, i.e. person creating the Will, here your grandfather. Accordingly, if your uncle does not give consent to the Will after your grandfather’s death, the Will shall have no effect and the properties will then be distributed as per the law of succession and all the sons will have equal shares.

To maintain the family coherence, it is strongly advisable for all to act in a manner so that nobody is deprived of his part for any undue reason. Though law may permit your grandfather to act the way he wants to act, your father and your other uncle should raise their concerns and suggest their father to act fairly with wisdom. Though property is awfully important in this materialistic world, it’s surely not the most important thing in life. Some relationships are even more important and invaluably precious. I believe I have been able to adequately clarify you and your uncle’s concern over the distribution of your grandfather’s properties.

For detailed query contact omar@legalcounselbd.com.