No right to inheritance

By Deborah Loh
thenutgraph.com

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.