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No right to inheritance

PETALING JAYA, 8 July 2009: There is no avenue for a deceased Muslim convert’s next-of-kin to lay claim to his or her estate, as civil laws like the Distribution Act 1958 do not apply to the Muslim deceased, lawyers said.

Instead, the estate goes to the Muslim treasury, Baitulmal, which is meant to distribute the assets among poor Muslims, hence denying the right to inheritance among non-Muslim family members.

In response to the High Court judgment that Mohan Singh a/l Janot Singh was a Muslim and his religion at the time of death should be determined by the Syariah Court, lawyers told The Nut Graph that legal amendments to address the distribution of a convert’s estate are imperative.

What happens?

When a non-Muslim dies without a will, the estate is divided among the next-of-kin subject to the Distribution Act.

But for a deceased Muslim, his or her estate is subject to the Islamic laws of faraid (Muslim inheritance and distribution law). Under such circumstances, non-Muslims are prohibited from inheriting Muslim estates, and vice-versa. This is under the Syafie school of thought, which Malaysia adopts for its Islamic laws.

The law has yet to be tested in respect of a deceased Muslim convert who has a will, says lawyer Balwant Singh Sidhu, who represented the Malaysian Consultative Council on Buddhism, Christianity, Hinduism, Sikhism and Taoism. The council was a respondent in the judicial review involving Mohan’s religious status.

“When the Distribution Act was enacted in 1958, nobody thought of converts because there were few at the time. Since this Act applies to non-Muslims only, and Muslims are covered by syariah enactments on inheritance, what about converts who drew up their will when they were non-Muslims?” Balwant said in a phone interview.


Balwant

No rights

The absence of specific laws to address the peculiar scenario involving a convert has led civil courts to side with Islamic laws that prohibit non-Muslims from inheriting the estate of Muslims.

Balwant referred to the case of Majlis Agama Islam Wilayah Persekutuan v. Lim Ee Seng in 2000, where the High Court dismissed a wife’s claim to her Chinese Malaysian husband’s estate because he had converted to Islam.

The wife had commenced proceedings for the Letters of Administration — documents that authorise a court-appointed administrator to manage her late husband’s estate — but the Federal Territory Islamic Religious Council stepped in to lay claim to the inheritance.

Balwant noted that the Shah Alam High Court, in declaring its judgment on Mohan’s case, did not address his next-of-kin’s rights to inheritance despite the matter being raised in submissions.

The appeal against the High Court’s decision has already been filed at the Court of Appeal, and Balwant said he would raise the matter of inheritance rights during the hearing.

Need to amend laws

In the case of Mohan, whose Muslim name, according to his conversion certificate, was Mohammad Hazzery Shah Mohan Abdullah, Baitulmal will be the beneficiary of his estate.

The Muslim treasury in Selangor is managed by the Selangor Islamic Council (Mais).

Lawyer for Mohan’s family Rajesh Kumar said Mohan did not make a will, and as a Muslim, his estate will not be governed by the Distribution Act but by Islamic law.

Besides his sisters and stepfather who are Sikh, he leaves behind a wife and daughter who are non-Muslim, and from whom he is estranged.

“Laws definitely need to be amended to ensure the next-of-kin are not deprived of their rights. In respect of converts, the law also needs to be clearer, such as having the next-of-kin present so that they can acknowledge that the conversion took place,” Rajesh said in a phone interview.

Mais’s lawyer Haniff Khatri Abdulla, when contacted by The Nut Graph, said the religious council was discussing Mohan’s estate this week, and that he would only be able to comment further next week.


Art director Mohan on a film production set
(Pic courtesy of Baldi Kaur, J Belvikohr and Jaswant Kaur)

Religious council’s discretion

K Shanmuga, who also represented Mohan’s family in the High Court, said although the non-Muslim next-of-kin had no legal rights to a convert’s inheritance, the state religious council could decide to “donate” a portion of the deceased’s estate to the family at its discretion.

He said to his knowledge, this has happened once, so far. It was the case of a firefighter in Malacca whose family received RM100,000 or half his estate, 13 years after his death.

The firefighter, Abdul Wahid Lim Abdullah, had died on duty. The family only discovered his conversion to Islam after his death.

In 2005, the Malacca Islamic Religious Council (Maim), in response to his family’s plight, then decided to donate half the estate to help them make ends meet.

In the case of Mount Everest climber M Moorthy, it was out of public pressure and his brother’s compassion that his widow S Kaliammal was able to receive Moorthy’s estate.

Kaliammal’s solicitor at the time, A Sivanesan, told The Nut Graph that the widow received an initial RM100,000 as a gratuity, and after Moorthy was promoted to sergeant posthumously, she also received his pension in full and continues to do so.


Sivanesan
Moorthy’s two properties which went to his brother, who became Muslim through marriage, were later given to Kaliammal, but only after the brother obtained the agreement of the Federal Territory Islamic Religious Council.

“This was an exceptional case and is definitely not the norm. It was exceptional because it shook the whole nation and drew international attention, so the government had to be seen as liberal,” said Sivanesan, who is also a Perak DAP assemblyperson.

“The authorities cannot act like this on a case-to-case basis because each case has a different scenario,” the still-practising lawyer said. He added that there were more cases involving the conversion of one spouse but with different circumstances, which had not been highlighted to the media.

“The government must study all the different scenarios and make changes to the laws,” Sivanesan said.

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16 Responses to “No right to inheritance”

  1. Wartanegara says:

    Jais or Mais appear out of no where when the so-called converted is dead and gone for good to snatch the body away from the family. Why can’t they inform the family of the conversion before [the converted] dies or the moment he/she converts? Why not make it mandatory to have their family members as witness.

    Religion helps humans be better persons. It guides us to the right path but here, religion is [causing agony] to the families. Denying their share [of inheritance] and [causing them agony] them during the funeral. IS this what we call religion? Or is it [that] in Malaysia, it is practised like this?

  2. Arion Yeow says:

    I am completely appalled. Mais is nothing more than a bunch of thieves preying on widows and orphans.

  3. dominik says:

    We must educate our children on what it means to be converted and embrace Islam [in Malaysia]. It is not like in other countries where you can renounce your religion at the time you have no more faith in the religion. Like in Christianity, if you do not believe in the religion, you renounce it, you automatically ‘excommunicate’ yourself from the religion. The church does not expel you or ‘force’ you to remain a Christian because your relationship/faith is with God, not with man.

    So far, what we see and do not see (many cases not high-lighted) that once you embrace Islam [in Malaysia] there seems to be no way out of the religion. Although Islam professes “no compulsion” but in practice it is not the case. So the notion “once in no out” seems to apply..

    Quite a number of remedial proposals were mentioned but as usual the govt is dragging its feet. Proposals like “if one spouse were to convert to Islam, the other half must be notified and acknowledge in writing and presented to the relevant authority. A copy is kept by the non-Muslim spouse.” If no such evidence exists, then the conversion is not valid in the eyes of Malaysian law.

    For existing conversions, these Muslim converts should inform their non-Muslim spouses of their conversion in writing and acknowledged by their non-Muslim spouse so that there will not be any “body-snatching” incidence occurring in the future and family agony will be avoided.

    BN govt – dare to take up this issue and push it through?

  4. ganesh says:

    Is this the compassion and justice practised in the Islamic faith, or is it Islam Malaysian style?

  5. Nicholas Aw says:

    Existing laws favour one party whereas the other party has no legal rights to the property of the deceased. This is indeed gross injustice and sows the seed of bitterness in the alleged Muslim convert’s family.

    The laws pertaining to Islamic conversion, inheritance and other concerns should be urgently addressed so that this matter could be put to rest once and for all.

    I absolutely agree with Wartanegara that one of the steps that could be taken is to inform the family of the conversion and making it mandatory to have family members as witnesses. In the event that the convert-to-be is not able to have the family witness the conversion, then the religious authorities should inform the family in writing. In this manner, there would not be ‘surprises’ when the convert dies.

    At the same time, other provisions of the laws should be looked into so that the family would be able to lay claim to the inheritance. Life has to go on and depriving the family of a stake is obviously cruel especially when the convert is the sole bread winner.

    If the rulers and the government are really sincere in tackling this issue they should give top priority to settling this issue.

  6. Kamal says:

    I wonder if someone can explain if this is applicable to business partnerships as well. Say a Muslim with no Muslim relative dies, does his share of the business go to Baitulmal and does this make Baitulmal a partner in the business?

  7. John Bastille says:

    I smell a conspiracy here. There appears to be a growing number of deceased with the Islamic authorities claiming to be converts but being disputed by family members. Especially when their ICs continue to show that they are non-Muslims. Furthermore, these Free People can still marry other Free People without being subject to Islamic marriages.

    Is it another wealth distribution plan for bumiputeras that we are not aware of?

  8. Kamal says:

    Wartenegara:
    I am sure the way we practice Islam is uniquely Malaysia. If I am not mistaken, the wife to the late Yasser Arafat remained a Christian even after marriage. But we are in Malaysia, and remember, Malaysia Boleh.

    Arion Yeow:
    I am appalled as well. We cannot have a country with two distinct judicial system. This is not about Islamic law or civil law, but this is about legitimizing the process of segregation. Through politics we are making normal unnatural distinctions among people; with laws, we are legalizing the practise of it. Why is all this so familiar – and I am not referring to Iran or Saudi Arabia?

    My point is Islamic law fundamentally rests on the principles of justice. How can we call what we practice as syariah now law, when it cannot address significant issues in our society? Muslims in Malaysia do not live in a bubble separated from other Malaysians. Malaysians of all shades and religions mingle, and co-habitate in the same social and bio space. Laws that are just need to be able to address this. If the civil law has been doing a wonderful job all these years, do we need to introduce a new law as parallel or to replace it? Replacing or creating parallel legal systems will create problems, and yes, thesee problems can be addresds.

    So far though, that isn’t what we see. Non-Muslims feel they are not being fairly represented and that Islamic law protects only Muslims, and the Islamic courts and Muslims feel they are being unfairly judged and misunderstood. As a result we get people feeling there is a need for clarity. That unfortunately is not forthcoming. What then are we to expect? Islam is about justice and fair play. Islamic law therefore in my limited knowledge should not be about protecting Muslims, it should be about upholding justice. Now, if a Muslim convert raises a family with non-Muslims (children and wife) and is responsible to his parents and siblings, who are also non-Muslims, should our syariah deem it appropriate and within their prerogative to extinguished the responsibilities of a responsible father and husband and filial son? Is that fair and just?

    Plus, if the syariah is protecting Muslims, can the non-Muslims expect a fair trial in the syariah courts? It shouldn’t be about the syariah being magnanimous and giving the property to the family of the deceased, it should be about the syariah courts recognizing that they have to serve society in a just and fair manner. And in Malaysia, society means everyone, regardless of their religion.

  9. Kunyit says:

    @Wartanegara. You know when you are going to die huh? If you say that the religious department should inform earlier then in the same context of reason given the person converted themselves should have done that the moment he/she decides. I am not sure but I think the High Court instructed the Syariah Court to make the decision. So the decision is upheld. And if the will is made before conversion the will is still valid until he/she makes a new will (simple). His lawyer knows that but plays dumb.

    @Arion Yeow. MAIS was only doing its job. In the end they did not want the money but to make sure that any one wanting to die a Muslim will be given the proper and rightful burial. Because it is a sin for them if anyone convert to Islam but cremated or others.

  10. Right2Choose says:

    This is definitely making the Islamic authorities out to be evil organizations out to cheat widows and orphans. The immediate family should naturally inherit the deceased’s properties unless specifically instructed by the deceased before his death. There should be laws in place to enforce these.

  11. tanyf says:

    All these conversions are being done so secretively as if it is something shameful. Accuse me of being ignorant or paranoid but I am thinking of making a statutory declaration that I have not converted and on a regular basis. This is to ensure that upon my death my family will not be surprised by body-snatchers and that the fruits of my life go to my family.

  12. yasmin says:

    Oh my God! I am a Muslim and I am absolutely appalled and disgusted with the way this Government practices Islam! What a bunch of lowlife thieves!

  13. Mohd Samad says:

    Those who prey on widows and unsuspecting non-Muslims with shady religous conversion traps will soon fall in one. Never underestimate the tolerance and goodwill of non-Muslim citizens of Malaysia to be taken for granted.

  14. Helen says:

    Once a person converts to Islam, his non-Muslim [spouse], children, parents and [siblings] are no longer considered his [or her] kin and are deemed unqualified to inherit his [or her] assets.

    If such human beings are deemed unfit for inheritance, how is it that the person’s assets earned before he [or she] converted are considered fit enough for Baitumal to take over?

    Can someone explain the logic here? Shouldn’t it be the case where only assets that he [or she] earned as a Muslim be considered fit enough for Baitumal? Therefore Islamic authorities could perhaps make it clear that anyone converting to Islam should renounce all assets that he [or she] earned as a non-Muslim and distribute them out before converting. That way Islam may gain even greater respect than it already has.

  15. Eric says:

    @Kunyit Posted: 8 Jul 09 : 1.07PM
    “Mais was only doing its job. Because it is a sin for them if anyone convert to Islam but cremated or others.”

    Can Mais also use its obviously excessive energy to more useful sin prevention? I believe corruption is haram, right? Preventing Muslims from indulging in corruption would turn Mais into people champions, right?

    Or is it simply, and contrary to what you said, because (i) there is no fast money to be made in anti-corruption and (ii) Mais would never act against the connected and powerful?

  16. rj says:

    The rule is based on a hadith (saying of the Prophet):
    Sahih Muslim, Book 011, Number 3928:
    Usama b. Zaid reported Allah’s Messenger (may peace be upon him) as saying: A Muslim is not entitled to inherit from a non-Muslim, and a non-Muslim is not entitled to inherit from a Muslim.

    But, it should also be noted that:
    A Muslim is free to make a bequest of up to one-third the value of his estate to whomever he pleases aside from the inheritors. This wealth is distributed before the estate is divided up among the inheritors. It is unlawful to give a bequest to someone who is entitled to an inheritance, since in doing so, he increases that person’s share of inheritance. The Prophet (peace be upon him) said: “Allah has given to everyone with a right, his right. There is no bequest for an inheritor.” [Sunan al-Tirmidhī, Sunan Abū Dāwūd, Sunan al-Nasā’ī, and Sunan Ibn Mājah]

    However, it is permissible for a Muslim to make a bequest for his non-Muslim relatives who are barred from inheritance on account of their being non-Muslims. In this way, a Muslim can use his discretion and set aside up to one-third of his estate to provide for any non-Muslim parents, children, or other relatives whom he might have.


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