Penang Properties News

Articles of Law by BHAG SINGH

Advice or help given in family matters does not usually create legal ties. Even if money is involved, there may exist no right to claim it back.

IT IS the case with most families that as long as the parents are alive, the home that they grew up in is a place that they all belong to and is the centre of family get-togethers.

However, when the parent dies, the house is often passed down to the children. Sometimes disputes arise as to who should get how much.

Early on in life, one of the children, sometimes the eldest child, may have been instrumental in the purchase of a family property. He may have helped to pay a part of the initial deposit or down payment.

It may be that the purchase price was RM100,000 and a down payment of RM30,000 was required with the balance coming from a bank loan. If the parent was unable to raise this amount, the eldest child may have helped with RM10,000.

Additionally, the property may have been bought in the name of the parent and the eldest child, to secure and facilitate a loan. The monthly instalments were no doubt paid entirely by the parent. After the loan was repaid, the share of the eldest child in the property was transferred to the parent.

Now there are, in all, 10 children and when the parent dies, there is left a Will giving the property to all the children in equal shares.

This, of course, implies to a non-Muslim family. In the case of a Muslim, only a part of the estate can be willed. The estate must otherwise go to the beneficiaries according to syariah principles.

Unhappiness

This is where dissatisfaction could arise. The eldest child who had earlier contributed towards the initial payment may feel that he should get a bigger share. This is because the house which was bought for RM100,000 is now worth RM500,000.

He may want his contribution in terms of initiative and money contributed at the stage of purchase to be recognised.

To get his share of RM50,000 just like the rest who have contributed nothing would be unfair. Furthermore RM10,000 of this would be his own money handed over many years ago.

This situation gives rise to a variety of issues and possibilities. One is whether the eldest child is entitled to anything more than his share on account of his earlier contribution. Of course, he will get his share as a beneficiary along with the others.

The eldest child may also be unhappy in the thought that if he had invested the RM10,000 on his own, it would have been worth much more after all these years.

Unless the other beneficiaries are prepared to recognise and make a concession to the role played by the eldest child and place a monetary value on it, he will have no further rights as such. This is because the property is registered in the name of the parent and in the absence of any cogent evidence, the provisions of the Will and where the law applies will prevail.

This is because it would be difficult to place a monetary value on the initiative taken by the eldest child in suggesting the purchase of the particular property at the material time.

With regard to the RM10,000 contributed towards the initial payment, further questions may arise.

Was it a loan to the father or was it intended that the eldest child should have one-tenth of the share in the property? If it was a loan, it is unlikely to have been documented and in all probability unlikely to be recoverable.

Personal stake

If, on the other hand, the eldest child was to have a personal stake in the property, then this appears to be not borne out. This is because the eldest child only helped with 10% but was co-owner subsequently.

Later he transferred his whole share to the parent. This would reflect a gift.

Given the above circumstances, the parent was in all respects the owner of the property. Notwithstanding the help given, the provisions of the Will – or in its absence, the applicable law – will apply with regard to who is to inherit the property and in what proportion.

Quite apart from the above, it needs to be pointed out that if any beneficiary is not happy with the provisions of the Will or the direction in which the proceedings relating to inheritance are coming along, an objection must be made at the time of application for probate or administration.

Thus, if the eldest child feels that he is entitled to a bigger share, he must object in the proceedings.

This would be necessary on the basis that he is part owner. Allegations alone will not suffice. Credible evidence will be required.

If he contends that it was a loan given to the parent, then despite the lack of merits as earlier pointed out, this needs to be included as a liability of the estate at the time of the application for administration or probate in the estate of the deceased parent.

This is because once the Grant of Probate or Grant of Administration has been made, it becomes a matter of transmission and distribution of the asset.

To raise such matters at a later stage would not be correct nor provide any relief.

Of course, one can apply to set aside a Grant of Administration or Probate but there must be cogent grounds to satisfy the court.

Conclusion

Looking back at what has been said, there is a need on the part of the eldest child to be very clear about the whole situation.

He should do the needful to reflect clearly the arrangement if there was one recorded. This is if he wishes to have a personal interest in the property in his own right on account of the payment.

The reality of the situation, however, is that when siblings are growing up, they often feel that they are all part of the family.

So if the parent benefits as do the others who are siblings, it is a matter very much within the family.

However, by the time the parent dies, the siblings have grown up and have their own families. A different mindset comes into existence. Added to that, differences may have developed between them over the years, now that they are adults with their own families.

In fact, in some cases antagonism may have developed among the siblings. When the parent dies, the claim to inheritance may provide the avenue for venting feelings which have been restrained so far.

Of course, this is not always the case. There are many families that resolve such issues amicably in the continued family spirit, which is all every laudable indeed.

However, if this is not possible, then any disagreement that leads to litigation can only result in the dissipation of the assets to everyone’s disadvantage.

But then, such disputes may not always be about money alone.