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Q I AM an only child and my father has two sisters and two brothers, all of whom are Muslim.

My father has two landed houses held in joint tenancy with me. I did not contribute financially to their purchase.

He also has investments in some foreign currencies and local bank accounts in our joint names. He holds one local bank account under his name. I’m the nominated beneficiary for his Central Provident Fund money.

Upon his death, which of the assets cannot be contested by his siblings? How should he reinforce my claim so that it will not be subject to the Muslim law of division? Can he draw up a will?

A UNDER civil law, joint tenants of a property have an equal interest in the property, regardless of the amount of money each co-owner has contributed towards its purchase.

When a co-owner dies, his share of the property will automatically pass to the remaining co-owner(s) regardless of whether the deceased joint tenant has left behind a will. Thus, upon your father’s death, you will become the sole legal and beneficial owner of both the landed properties.

However, things are different under Islamic law. You are entitled to only a half-share of the two properties. The other half-share is to be distributed according to faraid, the Islamic law of inheritance.

This is on the assumption that it was your father’s intention to give you a half-share when he included your name as a co-owner.

If not, the whole 100 per cent is subject to faraid.

Where there is a conflict of laws in matters such as joint tenancy, insurance and CPF nominations, the general rule is civil law overrides Islamic law.

Hence, your father’s siblings cannot, in law, claim for their faraid share of the two properties held in joint-tenancy.

However, as a believer, you may wish to consider waiving your rights under civil law and apply the Islamic law instead, and distribute the estate according to faraid as follows:

You as the only daughter/child: Half share

Your father’s siblings: Half share

Alternatively, your uncles and aunties may waive or disclaim their rights to their share after your father’s death. However, for you to deprive them of it is forbidden in Islam.

To avoid the application of faraid and any pressure from your father’s siblings to divide his joint ownership of properties, accounts and assets according to faraid, your father may wish to distribute his assets during his lifetime.

There are several ways to do this, including hibah (gift) and nuzriah (vow). He could seek an expert’s opinion on how this can be done.

As for you being named the beneficiary of your father’s CPF money, under the law, you will receive it for your personal use and benefit.

But under Islamic law, you are to receive it as the representative/trustee for the deceased’s estate for distribution according to faraid.

If it is your father’s intention to leave all his CPF money to you upon his death and to make it Islamic-compliant, then he could execute a nuzriah (subject to certain terms and conditions) in your favour so his siblings cannot contest it in law and in Islam.

As for the will, under the Administration of Muslim Law Act, a Muslim domiciled in Singapore shall dispose of his property by will only in accordance with Muslim law.

It allows a Muslim testator (that is, a Muslim who has a will) to dispose a maximum of one-third of his net estate to his non-waris or those who are not automatically entitled to his inheritance under faraid.

This is after payment of his debts due to God (for example, zakat or tithe), debts to his creditors, estate duty and his last expenses (including his medical, funeral and testamentary expenses).

The process of clearing these expenses is for the purification of a Muslim deceased’s estate.

The balance of his estate must be distributed according to faraid. A Muslim is not allowed to make a will in favour of his heirs, unless approved by the other heirs after his death.

Suhaimi SallehChairman Barakah Capital Planners

Advice provided in this column is not meant as a substitute for comprehensive professional advice. E-mail questions to chanteik@sph.com.sg

Source : Sunday Times - 1 Mar 2006