PROPERTY TRANSFER BY WILL

Published By The Daily Star on December 19, 2009 (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
Few days ago I read Your Advocate column in your page. I have only one daughter and want to give all my property to her. This property is the result of my years of hard work and I am not giving this to some of my nephews or other siblings.

As per your suggestion I need to make a will. Please suggest me how do I make a will and for that what procedure needs to be carried out. Please suggest.
Thanks
Worried father

Response
Dear Worried father,
Thanks for your query. Yes, this is true that if you have a daughter and have no son, in such a case your nephews and other siblings may have interest over your property by way of succession after your death. But, the right under succession does not arise before the death of the person. Consequently, during your lifetime you are free to deal with your property in whatever manner you want to. ‘Will’ is a mechanism that is used to give effect to a person’s desire about the distribution of his property after his death. But ‘Will’ takes effect only after the death of the person creating the Will. So, on your death, the succession rights of all the successors’ will also grow at the same time the Will taking effect. Hence there will be two competing interests: one under the law of successions that will arise in favour of all your successors and the other one under the Will that will arise in favour of your daughter. So, if you make a Will, all the other successors shall have to give their consents to the same after your death. To avoid future complexities your daughter will have to file a probate case. If the successors do not give consents to your Will, the same shall fail. Accordingly, your daughter shall only receive that portion of the property that she would get under the law of succession. The rest of the portions of your property will go to your other successors. So, creation of a Will in favour of your daughter seems not be the most suitable option for you. Though you may still decide to go for a Will, in case if you are almost certain that the other successors will give their consents to the Will or in case where you do not want to pass your property during your lifetime. In my opinion, the best course of action for you is not to create a Will rather to give the property to your daughter during your lifetime by way of a heba (deed of gift) by doing the proper registration formalities. I strongly believe that the opinion will be able to lessen your worries and to take the right and appropriate course of action with regard to your hard-earned property.

For detailed query contact omar@legalcounselbd.com