بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
INHERITANCE RIGHTS AND FINANCIAL ABUSE
As the Asian population in the UK has become richer over the decades, largely due to rising property prices, family disputes and legal court cases involving the devolution of property from one generation to the next has increased, and is likely to continue to increase in the forthcoming years.
Furthermore, as people in the UK are living longer, this includes, of course, the Asian population, a larger number of these elderly individuals lack mental capacity due to conditions such as dementia. This together with an increasing number of individuals amongst the Asian population who lack full mental capacity due to congenital neurological conditions means that the opportunity and incidence of financial abuse is increasing. I do feel that the decadence of our moral values is also a significant factor, the desire to acquire wealth by whatever means, legitimate or illegitimate has increased for the last few generations.
Red flags which should arouse suspicion and may likely to lead to disputes:
1. Financial transactions which affect the whole family are done in secrecy by one (or a few individuals) without informing other family members.
2. One family member (often the eldest son) is made the sole beneficiary and sole executor of the parents Wills.
3. Not all family members are made aware that the parents have a Will in place.
4. The sole beneficiary and sole executor of the Will also has sole financial LPA (last power of attorney).
5. Certain family members are totally against discussing financial arrangements involving the parents.
Tips:
1. Always seek legal advice where financial abuse has taken place, particularly, if it involves a vulnerable individual.
2. Try to settle the matter without going to court as this can often involve hefty charges. The longer the dispute continues the more difficult it becomes to settle, and more costly. Similarly, if the parent(s) die the dispute becomes more complicated to resolve legally.
3. It is not uncommon for the son, usually, the eldest, living his parents persuading them or using undue influence to get them to transfer the legal title of the family house, or other properties/ businesses into his name. The elderly parents are at the behest this eldest son since they are being looked by him, upsetting him may have dire consequences.
4. Note that merely having the legal title to a property does not automatically mean that you own it. If the legal title has been acquired by deception then ownership is not transferred. If parents transfer a property into the name of one child (usually the eldest son) with the aim that he/ she will distribute it amongst the other children when the parents die then the property is effectively being held in trust and can form the basis of a legal challenge.
5. A LPA (last power of attorney) is only appointed if an individual has full mental capacity. To apply for power to manage the financial affairs of someone who has been shown to lack mental capacity then one needs to apply to the appropriate agency, the Court of Protection (England and Wales) or the Office of the Public Guardian (Scotland) or the Office of Care and Protection (N. Ireland).
6. The importance of choosing the right person as your attorney in a LPA cannot be overemphasised. Needless to say, it should be someone you trust. Despite Gordon Brown, twelve years ago, in 2007, introducing new controls to try to prevent fraud in Britain’s power of attorney system vulnerable people continue to be financially abused often by their own family members, particularly, sons and daughters, the former being more common.
7. If you suspect that an attorney in a LPA is abusing his position in the case of a vulnerable individual, that is to say not acting in line with the desires and best interests of the donor, you can report this to the Office of Public Guardian in England or Office of the Public Guardian (Scotland) or Courts and Tribunals (N. Ireland).
8. Financial abuse of a vulnerable adult can also be reported to the local social services who will take action under The Care Act 2014 (England) and Adult Support and Protection (Scotland) Act 2007.
9. If the matter does go to a court of law, unfortunately, most of these sort of cases do, then it is important to have the right legal approach. The law court will only address the legal matter raised, so it is crucial to raise the right kind of legal objection and file a case which is likely to succeed.
10. Where large amounts of money or businesses are involved consider placing a freeze injunction in consultation with legal advice so that assets/ properties cannot be sold nor a charge put on them nor can they be transferred into a trust. However, this can prove to be a very expensive route.
Points from an Islāmic perspective:
1. Although an Islāmic Will in a non-Islāmic country (e.g. England, Wales, U.S.A., Canada etc) is very important and should be written, it does not guarantee that your estate will be distributed according to Islām. It is necessary to have other measures in place.
2. Parents should treat their children equally when giving lifetime gifts and these should not be used as a means of depriving certain children out of their inheritance rights. The concept of dis-inheriting a legal heir by use of such measures as 'aaq nama is un-Islāmic even if you announce your intentions. Allāh (SWT) has warned those who transgress His law of inheritance in verse 14 of sura Nisa.
3. Discuss any lifetime gifts you make as well as your Will with your children, spouses ad relatives. Explain to them what you are planning to do and why, so that there are no surprises for the relatives. Giving reasons in the Will as to why the estate is distributed as it is, is to be discouraged, as the accuracy of the statement may be challenged after the testator’s death, and the Will may be exposed to testamentary libel.
4. Matters can only be settled if the family members are willing to sit together to discuss the matter transparently. Any meeting should be formal, recorded and individuals should take an oath so as to give credibility to their statements. Any objections to this should be seen as a means of trying to hide the truth.
5. If the family members are Muslims get an Islāmic scholar involved or perhaps even better get a religious ruling on the wrongdoings.
6. More often than not, close friends and relatives know that a wrong is being committed but opt to remain silent and do nothing. It is the duty of a Muslim to try to correct a wrong. The Messenger of Allah (ﷺ) said, “Whosoever of you sees an evil, let him change it with his hand; and if he is not able to do so, then [let him change it] with his tongue; and if he is not able to do so, then with his heart — and that is the weakest of faith.” Ṣaḥīḥ Muslim
7. It is also the duty of the close relatives of the wrongdoer to stand up for justice and the truth. Allāh (SWT ) says in surah Nisa ayah no. 135, "O you who believe! Stand firmly for justice, as witnesses to Allāh, even if it be against yourselves or (your) parents and nearest kin."
8. In Islām assets hidden by the use of legal instruments to deprive a legal heir of his inheritance right does not diminish the rights of the legal heir to claim his legal share of the inheritance without any time limit.
9. Property or other wealth acquired by illegal means or by deception or by misuse of trust cannot be inherited it must be returned to its original owners.
10. Remember that in the end all will be revealed and every act will need to be justified. Don’t spoil your akhira for worldly gains.
Dr. A. Hussain
30th Dec. 2019
