Will and Heritage, ghost from the past.

[GreyShadow]

Had a chat with one of my friend recently, and there's this situation at his family right now, which no body seems to know the answers.

My friend's father had a son from his previous short marriage, after the divorce he gave up the custody of the son to his ex-wife. and the son has stayed with his ex-wife ever since, and rarely keep in touch with each others.

Then the father re-married again, my friend's mother, and had 2 sons.

Now my friend's father is an aging old man and can leave this world any moment. My friend is not sure if his father has left behind any will or not, and he won't be surprise if his father decided to give a share of his heritage to his eldest son since he claim his father has express guilty before for not taking care of his eldest son during his younger days. My friend's family even haven't met this so called "half-brother" of theirs before. The mother and the sons are not supportive of giving up a portion of their heritage to some total stranger.

Now the question is, if there's a will stated the eldest son will have a share in his heritage, can the family appeal in court to remove the eldest son from the will or void the will?

Or, if there isn't a will, will the eldest son be able to claim a share of his heritage, judging from he IS his biological son? even though he's legally not his son anymore?

Would appreciate some expert of Law to help clearing up things here.

[kwchang]

Am just a layman but have heard of a story on how to prevent the contest of property.

If the old man did not will even one sen to his eldest son, then the son can actually claim for part of the property.

If the old man wills even one sen to the eldest son, then the eldest son cannot make any further claims to the property - because he was not left out of the will. However, I do not know if the current family can prevent the eldest son from claiming it

So, the way to stop any dispute is to make a will and ensure that no one is left out of the will.

[GreyShadow]

So if there isn't a will, that's mean the eldest son still can claim for part of his property even thou legally he's no longer his son?

So does this means whoever is a illegitimate child (out of wedlock), are still eligible to claim for his/her genetic father's inheritance?

Appreciate if some law expert to clarify it here...

[Teff]

Had a chat with one of my friend recently, and there's this situation at his family right now, which no body seems to know the answers.

My friend's father had a son from his previous short marriage, after the divorce he gave up the custody of the son to his ex-wife. and the son has stayed with his ex-wife ever since, and rarely keep in touch with each others.

Then the father re-married again, my friend's mother, and had 2 sons.

Now my friend's father is an aging old man and can leave this world any moment. My friend is not sure if his father has left behind any will or not, and he won't be surprise if his father decided to give a share of his heritage to his eldest son since he claim his father has express guilty before for not taking care of his eldest son during his younger days. My friend's family even haven't met this so called "half-brother" of theirs before. The mother and the sons are not supportive of giving up a portion of their heritage to some total stranger.

Now the question is, if there's a will stated the eldest son will have a share in his heritage, can the family appeal in court to remove the eldest son from the will or void the will?

Or, if there isn't a will, will the eldest son be able to claim a share of his heritage, judging from he IS his biological son? even though he's legally not his son anymore?

Would appreciate some expert of Law to help clearing up things here.

Hi there GreyShadow.

I am a Legal Counsel by occupation and used to handle a few family court matters when I was in litigation some 5 years ago.

I cant really advise u in entirety but I am assuming that this dispute concerns non-Muslim parties, am I correct? Because if the parties are Muslim then with or without a will, the eldest child can prove his birth cert to the Syariah court that he is indeed the biological son, and he will be awarded his portion as stipulated under Faraid (Islamic law of inheritance) by the court.

As for non-Muslim parties, if there's a will with his name on it, usually the court will grant his portion unquestionably as the deceased had clearly documented for some portion to go to him. I dont think that you would be able to remove his name from the will, however, based on facts and circumstances (like the fact that they are estranged), the method would probably work, subject to an application made to the court to hear it out, but it all depends on the discretion of the judge to decide based on the merits alone.

If there isnt a will in place, the normal procedure is that if there are no children, the surviving spouse automatically gets the full estate. If there are children, then the division depends on the number of dependants. My take is that the son may be able to claim inheritance based on the fact that he is his biological son.

Anyway, you may want to refer to this website for more details:

http://www.lawyerment.com.my/library/doc/est/wills/1000000-5.shtml

Hope this helped. Cheers.

[GreyShadow]

thanks teff,

So at the end of the day, whether there's a will or not, the result still can swing either way, right? ;)

I'll forward the link to my friend to read, all those legal mambo jambo are giving me a headache :p

[pywong]

Non-muslim die without a Will - intestacy.

Spouse gets 40%
Children split 60% equally. This includes ALL children.

Very lecer. Better get the old man to draft a Will. Sign in front of 2 witnesses together, who must attest their signature together on the same day. Best thing is to get a Commissioner of Oaths tho witness. Then full-proof.

I have seen some in-laws having big fight. Very expensive legal fees - few hundred k. So, my advice, sort it out while the father is still alive.