Published By The Daily Star on October 24, 2009 (Link Above)
We are receiving large number of letters everyday regarding day-to-day legal problems. Taking this into consideration, we are now re-introducing ‘your advocate’ column fortnightly. You can now send in queries regarding the following topics – 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.
Seven years ago my only son died. Since then his wife remarried and she’s well settled in the US with my grandson (he’s 13 years old). I also have a daughter. My husband in his will had given me the property I currently live in. I would like to give the property solely to my daughter. What would be the best possible way of doing that and whether my grandson would be able to claim it in the future after I have legally given the property to my daughter?
Thank you for the query. It has been understood that you have got the instant property by way of a ‘Will’ created in your favor by your husband, who is now deceased. Any Muslim person over the age of 18 and who is of sound mind can transfer his property by way of creating a Will or Wasiyat. The Mohammedan law has imposed two types of restrictions on the ability of transferring properties by way of creating a Will. Restriction has been imposed with regard to the amount of property that can be the subject matter of the Will. Secondly, restriction has also been imposed with regard to who can be the beneficiaries under the Will. Accordingly, a Muslim person cannot create a Will or wasiatnama for transferring more than one third of his entire property. Consequently, if the property in issue amounts to one third or less than one third of your husband’s entire property, than the same will be allowed. One the other hand, if this is more than one third then, you are required to obtain consent from all the other legal successors of your husband, i.e. at present your daughter and the wife of your son and his son (since your son has died too, their successors has to give consent) and other legal heirs, if any. Your grandson being only 13 will be unable to legally give his consent. Accordingly, his lawful guardian shall have to give consent on his behalf.
So far as the restriction with regard to the beneficiaries under the Will is concerned, 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. Accordingly, you are required to obtain consent of all the legal heirs of your husband.
In the light of the above, you are advised to file a ‘Probate Case’ before the District Delegate Court adding the legal heirs as opposite parties to the said suit. Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid Will. If the heirs do not object to the said transfer of the instant property by the Will, then the Will shall be valid and you will lawfully hold the title of the property.
Thereafter, you can lawfully pass the title of the property to your daughter following the proper procedure of transferring the same. If you simply transfer the title of the property to your daughter without filling the Probate case and obtaining judgment in your favor, then the possibility of disputes with regard to your daughter’s title in the property will always remain.
On the other hand, if the suit is contested and the legal heirs refuse to give consent, then the Will shall not be considered valid and the property in issue shall be distributed to all the legal heirs of your deceased husband as per the law of succession. Even in such a situation, you being one of the legal heirs of both your husband and your son both of whom have now died will be the lawful owner of some portions of the property. Accordingly, you will be able to transfer the said portion to your daughter after doing the proper demarcation.
I hope that the aforesaid advice will help you to understand your legal position with regard to the instant property. You are further advised to consult with a lawyer, who is expert in dealing with property for the purpose of filing the case and after obtaining the judgment for transferring the same to your daughter.
Omar H. Khan is a Barrister-at-Law of the Hon’ble Society of Lincoln’s Inn and an advocate of the Supreme Court of Bangladesh.