THE purpose of this piece is to examine the objective of Pakistan’s intestate succession law, the adequacy of the current scheme to meet those goals and to suggest consideration of alternative discretionary schemes, as practiced in foreign countries, which may help resolve existing problems in Pakistan’s courts. The inequality that this writer considers most unjust is inheritance cases. The current inheritance laws should be changed to allow people to dispose freely of their estate, subject to the court’s right to award an appropriate share from the estate for the maintenance and sustenance of the dependents of the deceased.
Virtually every other developed country in the world has adopted a scheme for intestate succession that grants judicial discretion in the distribution of a decedent’s estate, when justice requires, to those who were economically dependent on the deceased. Courts in Pakistan should adopt such a scheme to correct prejudices and inequalities that will arise more frequently as existing family dynamics evolve beyond rules of intestate succession that remain trapped in a century-old framework. Of course, if the current laws constitute a breach of basic human rights, then one may ask: where do children claim compensation from? Is the State responsible for providing an amount equal to the lost inheritance?
The unfairness of the current system should be sufficient to instill a sense of urgency in the country. In this respect, our laws and mentality appear feudal. Is a person, any person, who is born into this world, not a human being? Does each person not deserve the opportunity to learn, to prove themselves, to try and become successful? What happens to those children who are not given sufficient opportunity and a proper learning environment? Many of them become a burden on society. In material terms, there are medicines one may need but cannot afford, books one may be unable to buy and tutoring—which is even more expensive. Who will bear these hardships?
Muslim and conventional laws provide equal rights for distributing the property of those who die without a will. Even when a person dies intestate, their property is distributed according to a strict statutory system among the spouse, children, descendants or other relatives. Almost half of Pakistan’s population dies without a will; thus, the rules of intestate succession affect a large part of the population. Unfortunately, people are not aware of how these rules determine the distribution of estates and, presumably, many intestate estates are not distributed in accordance with the intentions of the deceased.
Most people who die without a will are, predictably, middle-aged individuals whose deaths are unexpected or those who have modest estates and could either not afford or did not wish to hire a lawyer to draft a will. When a person dies without a will, their 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 significantly, making the rules of intestate succession increasingly unjust and out of tune with the goals of Muslim inheritance law. Although methods of property distribution at death ideally reflect the wishes of the deceased, the rules of intestate succession remain stagnant while Pakistani society and family structures evolve, creating an alarming disconnect. Contemporary social realities no longer align with the goals of Pakistan’s inheritance system. Unfortunately, there are very few alternatives available to Pakistani courts to bypass these rules when justice requires 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 those in need and recognizing those who are most deserving. Finally, Muslim intestate succession laws benefit society because they are simple to apply and administer, thus reducing the burden on the legal system. While inheritance law should serve all these goals, the reality is that the current law of intestate succession no longer fulfills many of them.
The United States, England, New Zealand, Australia and Canada grant judges discretion in distributing an estate. In Pakistan, there is a need for judicial discretion in the distribution of a decedent’s estate, when justice requires, to those who were financially dependent on the deceased. Courts utilize this discretionary power to provide relief when the will or rules of intestacy do not adequately provide for the applicant. There is also a need for courts to develop equitable remedies to mitigate the harsh consequences of strict application of intestacy rules. The judicial system should adopt such a scheme to correct injustices that will arise more frequently as current family dynamics evolve beyond outdated rules of intestate succession.
—The writer is contributing columnist.
