What happened in case of an invalid will?

[serious_fun]

Screwed immediately, and land go to the state.

What a ridiculous system. All of the funds invested, the blood/sweat & tears to develop something for family, years and years of life working and saving...all thrown away.

Why? Elites pretending to protect the "average" WNI from evil predators (even as the elites are the actual predators) ? Pandering to the ultra-nationalist vote ?

It all reminds me of a bunch of jealous neighbours in a village, eager to steal what the more industrious and hard-working have built. Scheming and planning and waiting for the perfect moment to steal...

 

[jstar]

Well, this is the theoretical interpretation of a law text. As we have seen after the discussions more than 10 years ago, nobody (I’m aware of) ever lost their piece of land because of this. And more importantly, two lawyers and a notary in my F-I-L interpreted that law as preventing someone wanting to mislead* and purposely creating a permanent wrongful situation. Not for someone who has to (and will) give up the land within one year anyway. Obviously some people here always know better than all Indonesian lawyers who according to them are idiots.

*A bit like a gift by a terminally ill person in western countries, two months before dying, to avoid inheritance tax.

 

[centurion]

What a ridiculous system. All of the funds invested, the blood/sweat & tears to develop something for family, years and years of life working and saving...all thrown away.

Why? Elites pretending to protect the "average" WNI from evil predators (even as the elites are the actual predators) ? Pandering to the ultra-nationalist vote ?

It all reminds me of a bunch of jealous neighbours in a village, eager to steal what the more industrious and hard-working have built. Scheming and planning and waiting for the perfect moment to steal...

The Agrarian Law was made in 1960, Sukarno's time, so it is for sure nationalistic. It is pointed against all foreigners at the time (and in the future), especially the ones that had assets through marriage with locals, or inheriting (most of the Dutch were expelled in 1957, this is prevention so they do not come back in some another form).

Of course that the law is not applied strictly, but the possibility that it can be applied, probably selectively, against individuals with significant assets that are not in compliance, is enough, as the provisions are pretty straightforward.

 

[jstar]

Dutch were expelled in 1957

You make a good point; at the time houses owned by Dutch were impounded and their companies were nationalized or taken over by local operations. A great way to make descendants powerless by law. Btw, currently there are still quite some people in The Netherlands who would be willing to challenge the ownership of houses in Menteng (Jakarta Pusat - Weltevreden) since their (grand)parents had to flee the country.

 

[centurion]

You make a good point; at the time houses owned by Dutch were impounded and their companies were nationalized or taken over by local operations. A great way to make descendants powerless by law. Btw, currently there are still quite some people in The Netherlands who would be willing to challenge the ownership of houses in Menteng (Jakarta Pusat - Weltevreden) since their (grand)parents had to flee the country.

I suppose the idea, in border cases, was, if father-Dutch was expelled, and the house stayed in mother's (Indonesian) name, kids cannot inherit. Old citizenship law stated that citizenship goes by the father's line..

 

[serious_fun]

All too confusing for my little brain. Non-Muslim WNA or Muslim dual citizen or female non-Muslim or male child WNA, etc., etc.

Surely there is a concrete law (without regional 'interpretation') regarding inheritance?

Perhaps I'm listening to too many voices/opinions.

 

[centurion]

All too confusing for my little brain. Non-Muslim WNA or Muslim dual citizen or female non-Muslim or male child WNA, etc., etc.

Surely there is a concrete law (without regional 'interpretation') regarding inheritance?

Perhaps I'm listening to too many voices/opinions.

There is. Muslims are following private sharia law (Compilation of Islamic Law or Kompilasi Hukum Islam-KHI), and non-muslims are following Indonesian Civil Law (derivated from the French Code Civil, as all continental European laws).

So saying that in Indonesia sharia law does not exist is wrong.

 

[serious_fun]

There is. Muslims are following private sharia law (Compilation of Islamic Law or Kompilasi Hukum Islam-KHI), and non-muslims are following Indonesian Civil Law (derivated from the French Code Civil, as all continental European laws).

So saying that in Indonesia sharia law does not exist is wrong.

I see. Which set of laws has precedence or carries more weight? In case of dispute, would a non-Muslim have fewer rights or recourse?

maaf for my ignorance.

 

[flavus]

I see. Which set of laws has precedence or carries more weight? In case of dispute, would a non-Muslim have fewer rights or recourse?

maaf for my ignorance.

I'm also curious. I would suspect Islamic law would be friendlier to foreigners as it strictly specifies the distribution of assets among surviving family members?

 

[jstar]

There is no such thing as which one has priority. Only in Aceh the Islamic law for criminal cases is applied. In the rest of Indonesia Islamic law is generally only binding for Muslims and it regulates specifics in the field of marriage, family, and inheritance. Also grants and certain finance is included. So if the Religious Court has authority and is selected, those laws apply.

Now before 2006 for inheritance issues you were free to choose between (western) civil law, customary (adat) law, or Islamic inheritance law. But that changed and Muslims are no longer allowed to go to the civil (District) court, their inheritance cases have become the authority of the Religious Court. So that means Islamic inheritance law applies.

 

[centurion]

I'm also curious. I would suspect Islamic law would be friendlier to foreigners as it strictly specifies the distribution of assets among surviving family members?

First things first, if you are not Muslim and your spouse is, you cannot inherit (except for your 50% of the joint property). If you are all Muslims but do not have a daughter, a male relative from the spouse's family will get a portion (spouse's parents, if dead, brothers, etc). If you have male kids, their portion will be twice as from the female kids.

Civil law would be more just, but it will be applied if the deceased is not Muslim, (surviving spouse/kids could be Muslim). In that case, after deducting 50% of the joint property in favor of the surviving spouse, the remaining goes to the kids and the surviving spouse.

 

[jstar]

À rather good article on the differences in inheritance. The link contains a translation…

https://sugalilawyer-com.translate.goog/pembagian-harta-waris-menurut-hukum-islam-dan-kuh-perdata-bw/?_x_tr_sl=id&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc

This is the original:

Pembagian Harta Waris Menurut Hukum Islam dan KUH Perdata (BW) | SUGALILAWYER.COM

I. Kewarisan Menurut Hukum Islam Pembagian Harta Waris - Hukum Kewarisan menurut hukum Islam sebagai salah satu bagian dari hukum kekeluargaan (Al ahwalus Syahsiyah) sangat penting dipelajari agar supaya dalam pelaksanaan pembagian harta warisan tidak terjadi kesalahan dan dapat dilaksanakan...

sugalilawyer.com

 

[flavus]

First things first, if you are not Muslim and your spouse is

Ah right. I was thinking of the scenario where both are, given interfaith marriages are increasingly hard to register in Indonesia

If the law says foreigners can't inherit but Islamic law say the spouse must get a share, what happens?

 

[flavus]

Civil law would be more just, but it will be applied if the deceased is not Muslim, (surviving spouse/kids could be Muslim). In that case, after deducting 50% of the joint property in favor of the surviving spouse, the remaining goes to the kids and the surviving spouse.

In this case, definitely. I meant in the context where the surviving spouse or one of the children is non WNI - I guess it does not really matter, if there is no will under both systems they get something, and if there is...

• under civil law the will might be considered invalid (foreigners can't inherit)
• under Islamic law are wills recognized?

 

[flavus]

À rather good article on the differences in inheritance. The link contains a translation…

https://sugalilawyer-com.translate.goog/pembagian-harta-waris-menurut-hukum-islam-dan-kuh-perdata-bw/?_x_tr_sl=id&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=sc

This is the original:

Pembagian Harta Waris Menurut Hukum Islam dan KUH Perdata (BW) | SUGALILAWYER.COM

I. Kewarisan Menurut Hukum Islam Pembagian Harta Waris - Hukum Kewarisan menurut hukum Islam sebagai salah satu bagian dari hukum kekeluargaan (Al ahwalus Syahsiyah) sangat penting dipelajari agar supaya dalam pelaksanaan pembagian harta warisan tidak terjadi kesalahan dan dapat dilaksanakan...

sugalilawyer.com

Interesting, I wonder if under Islamic law a will can only be used to make bequeaths to non family members, while the family inheritance is already laid out, or the default "distribution" only applies to anything not specifically willed out

 

[centurion]

Interesting, I wonder if under Islamic law a will can only be used to make bequeaths to non family members, while the family inheritance is already laid out, or the default "distribution" only applies to anything not specifically willed out

Under Islamic law, the will cannot change the parts that inheritors would naturally get. Will is for distributing max 30% of assets to others that are not in line for inheritance, i.e. illegitimate kids, or giving part of the inheritance to charity or similar.

 

[centurion]

In this case, definitely. I meant in the context where the surviving spouse or one of the children is non WNI - I guess it does not really matter, if there is no will under both systems they get something, and if there is...

• under civil law the will might be considered invalid (foreigners can't inherit)
• under Islamic law are wills recognized?

I suppose (but not sure 100%) in a will non-Muslim Indonesian can leave moveable assets to a foreigner (money, shares in PMAs, listed companies, rights, leased land). Foreigners cannot inherit land under a freehold title, in some other cases, it could be possible (leased land), shares in local PTs.

 

[jstar]

would a non-Muslim have fewer rights or recourse

Islamic law would be friendlier to foreigners

According to Islamic inheritance law, people who are not entitled to inherit are:

1. The heir killer, based on the hadith narrated by At tirmidhi, Ibn Majah, Abu Daud and An Nasa'i.
2. An apostate, that is, leaving Islam, based on the hadith narrated by Abu Bardah.
3. People of different religions with the inheritor, namely people who do not adhere to Islam or are infidels.
4. Adultery children, namely children born out of wedlock, based on the hadith narrated by At Tirmidhi (Hazairin, 1964: 57).

 

[serious_fun]

so, as clear as mud.

Am I correct in assuming that with a pre or post-nuptial agreement separating assets, the non-Muslim WNA spouse loses everything in the event of Muslim WNI spouse's death?

(sigh) comedy.

 

[jstar]

And in the event of the non-Muslim WNA’s death?

This is in accordance with the words of the Prophet SAW:

لا يَرِثُ الْمُسْلِمُ الكَافِرَ ، ولا يَرِثُ الكَافِرُ الْمُسْلِمَ

"Muslims cannot inherit infidels (and vice versa) infidels cannot inherit Muslims," (HR. Bukhari Muslim)

Through this hadith, scholars agree that non-Muslims cannot be the heirs of a Muslim.However, if on the other hand, Muslims inherit from non-Muslims, then scholars have different opinions. Some scholars say may and some other words can't.
The majority of scholars from the four major schools of jurisprudence in the world, namely the Hanafi school, the Maliki school, the al-Shafi'i school, and the Hanbali school forbade the inheritance of different religions. The word infidel in the hadith above is not between kafir harbi (who is separate from Muslims) or other than harbi, who does not add Muslims. All of them cannot be heirs.

Different from the opinion above. Imam Ibn Taymiyah and Ibn Qayyim al-Jauziyyah allowed non-Muslims to inherit a Muslim. This opinion is based on several narrations including Mu'az ibn Jabal & contemporary scholars such as Yusuf al-Qaradhawi said that the reason a person inherits is not because of religion, but because of the reason of help. Please help here is please help in the sense of please help between families.
From the permissible and not allowed above, if it is managed with Indonesia in the Compilation of Islamic Law, it is explained that different religions cannot be heirs. This is regulated in Article 171 c Compilation of Islamic Law.

However, in practice in Indonesia, non-Muslims can get inheritance from mandatory wills. What is meant by a mandatory will is to present by will. A will is a message made by someone that will be carried out after death. While the mandatory will is a will that is separated from the subject court in reality the heir just leaves a message.
In several Religious Court Decisions in Indonesia do so. As in Supreme Court Decision Number: 368/K/AG/1995 and Number: K/AG/2010.

Also read the last paragraph!

.