Amna Nasir Jamal
ON and off there is rift between bar-bench; but has the lawyers and judiciary ever thought who is a true victim between these clashes? No doubt, the aggrieved or applicant who are wandering around in courts to get due justice! There is a genuine need for a revolution to the intestate succession, notwithstanding revisiting the other areas of inheritance law. The purpose of this note is to examine the objective of Pakistan intestate succession law, the adequacy of the current schemes to meet those goals and suggest to consider alternate discretionary schemes foreign countries do practice, which may help solve existing problems witnessed in Pakistani courts.
The current inheritance laws should be changed to allow people to dispose freely of their estate, subject to the right of the court to deliver a appropriate sum out of the estate for the maintenance and sustenance of the dependents of the deceased. Virtually every other developed country in the world has espoused a scheme for intestate succession that grants judicial discretion in dispersal of a decedent’s estate, when justice needs, to those who were economically at the mercy on the decedent. The Pakistani courts should adopt such a scheme to accurate prejudices and inequalities that will happen more frequently as existing family dynamics accelerate past rules of intestate succession that remain trapped in the century back. New judicial policy aims at speedy disposal of cases like all fresh and pending cases in the Supreme Court and High Courts will be decided within one year and those from Balochistan within six months. But, here it is important to mention that there is a lot of litigation pending before the courts.
Of course, if the current laws are a breach of the basic Human Rights, then may I ask from where children to claim compensation from the State equal to the sum of the lost inheritance? The unfairness of the current system should be sufficient to instil a sense of urgency in State. In this respect, our laws and mentality seem feudal. Isn’t a person, any person, who is born into this world, a human being? Doesn’t each person deserve the opportunity to learn, to prove himself/herself, to try and be successful? What happens to those kids who aren’t given sufficient opportunity and a good enough learning environment? Many of them become a burden to everyone else.
In material terms, there are medicines; if one need it but could not afford it. There are books, which one could not afford; there is tutoring – even more expensive. Who will shoulder great hardships? Muslim and conventional law provides equal rights for distributing the property of those who die without a will. Even when a person dies without a will, his property is distributed according to a strict statutory system to his spouse, children, descendants, or other relatives. When a person dies without leaving a will that expresses his intent in distributing the property he has left behind, the law steps in to distribute the estate, in effect imposing a statutory will.
Almost over half of the Pakistan population dies without a will, the rules of intestacy affect a large part of the population. Unfortunately, people are not conscious of how the rules of intestate succession will dispense their estates, and, presumably, many intestate estates are not dispersed according to the requirements of the decedent.
Most people who die without a will are, predictably, middle-aged people whose death was unpredicted, or those who had judicious estates and could either not afford or did not want to hire a lawyer to draft a will. When a person dies without a will, her/his property must be distributed according to a strict statutory system among spouse, children, descendants, or other relatives.
Recent court cases reveal that the Pakistani family is changing immensely, creating rules of intestate succession more unjust and out of tune with the goals of Muslim inheritance law. Although other methods of property dispersal at death always reflect the desires of the one who leaves it behind. On the other hand, the rules of intestate succession remain stagnant while the Pakistani family and society changes, leaving an alarming disconnect. Contemporary social phenomena are no longer match the goals of the Pakistan inheritance system. Unfortunately, there are very few alternatives accessible to Pakistani courts to circumvent these rules when justice would require it.
The most important guiding principle of Muslim inheritance law is to recognize and support the importance of the family. In addition, inheritance laws ideally benefit society by providing for the needy and recognizing those who are the most deserving. Current schemes of intestacy address these concerns by providing that the potentially needy family of the one who has died will take whatever is left. Intestate succession laws were also designed to take into account those who deserve to inherit, assuming that those who provided support to the decedent would be his family.
Finally, Muslim intestate succession laws benefit society in that they are easy to apply and administrate, thus reducing the strain on the legal system. While inheritance law should serve to further all of these goals, the reality is that the current law of intestate succession no longer effectuates many of these goals.
United States, England, New Zealand, Australia, and Canada grant judges discretion in distributing an estate. In Pakistan, there is need of judicial discretion in distribution of a decedent’s estate, when justice requires, to those who were financially dependent on the descendent. Courts utilize power of the discretion to formulate a provision when the will or rules of intestacy do not offer adequately for the applicant.
The court must consider primarily the financial needs of the dependant, as well as the size and nature of the estate of the deceased, the applicant’s present and future resources, the applicant’s opportunities and capacity to become financially independent, the age and health of the applicant, any other distributions from the estate to which the applicant is entitled and above all the legitimate, equitable and lawful dispensation. Also, need is courts have to originate several impartial remedies to help relieve some of the harsh consequences of strict application/claim of intestacy rules. Judicial system should adopt such a scheme to correct injustices that will crop up more often as current family dynamics accelerate ‘injustice’. It is need of the time that at general scale and for sake of justice judiciary check law violators who are responsible for open discouragement of law.
—The writer is freelance columnist based in Lahore.