Rules of Successions and Wills in KSA and Other Major Countries

Posted: January 4th, 2023

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Rules of Successions and Wills in KSA and Other Major Countries

It is extremely imperative that a person writes a last will and testament, if they want to have dominance over what happen to their possessions, money, or property after death. If a person dies without a will they cannot be sure their assets and properties will be passed on according to their desires. Dying intestate or without leaving behind a will can cause considerable impediments in the succession and management of the late person’s properties some of which may take several years to resolve. The study pays considerable attention to how the inheritance and succession laws in Saudi Arabia compare with that of other developed countries with the objective of identifying ways through which KSA may improve succession practice and the formation and validation of wills. The research argues that Saudi Arabia still lags behind in the formation of inheritance laws compared to developed nations such as the U.S., the UK, and Australia, which calls for considerable transformations, to achieve a situation where people can create wills without any undue influence and where the wishes of the dead are implemented to the letter. Saudi Arabia can improve its succession practices by restricting its policies and acquiring and implementing lessons from some of the developed nations that have well-structured family laws. 

Description of Succession and Will

It is essential to understand the meanings of will and succession before dwelling further into the laws governing these processes. A will, also called a statement, is a valid document that describes or expresses the testator’s desires and wishes as to how their properties are to be distributed following their demise as to which person is to manage them until after their ultimate distribution (Bonefield, Grossman, LaPiana, 2020).[1] Whereas historically the term will was used to refer to real property and testament applied to personal property, records inform that the two terms have been utilized interchangeably. Thus, the term will validly apply to both real and personal properties (Tilse, Wilson & White, 2016).). Often a will creates a testamentary confidence that takes effect only after the testator’s death. A succession, on the other hand, refers to the processes of settling the properties of a dead person, and distributing them to their rightful heirs. Succession also refers to the rights and transmission of the obligations of the dead to his or her heirs (Tilse, Wilson & White, 2016). The primary function of succession is to offer guidelines for the transfer of property from the dead person to those who survive him or her (Tilse, Wilson & White, 2016).). A succession is also important because it helps to identify the rightful or legal claimants of the testator’s property, and serve tools for resolving disputes between the people claiming to be the rightful heirs (Tilse, Wilson & White, 2016).). Countries usually develop laws and regulations to direct the drafting and implementation of wills and successions with the motive of preventing conflicts or wrangles that could ensue following the death of a person who leaves behind some properties.

Succession Regulations in KSA

The Kingdom of Saudi Arabia (KSA) bases its legal system on Sharia law acquired from the Islamic traditions (Sunnah) of Prophet Mohammed and the Quran. Adherence to the Sharia law has created a scenario where more judicial practices need to be adjusted in the country, thereby creating the urge to improve the content and scope of KSA’s laws (ICNL, 2017). Attempts have been made to supplement Sharia with laws and regulations issued by royal decree to address issues on corporate law and intellectual property (ICNL, 2017).[2] Nonetheless, Sharia still serves as the dominant source of law, particularly in areas such as contract, commercial, family, and criminal law, and Sunnah and the Quran serve as the country’s constitution.

The succession laws and regulations guiding succession matters in KSA are not very much developed. As in most nations in the Arab world, Sharia law applies on issues pertaining to the formation and implementation of laws. The Saudi Arabians rely on the Quran on matters of succession and inheritance. The Saudi Arabians depend on the Quran teachings of Surah Al-Nisa Chapter Four, particularly from verses 7 to 14 as well as 176 (Hussain, 2011).[3] Saudi Arabians believe that it is Allah who created the universe offered clear directives about the act of inheritance and succession to save mankind from the usual act of devolving succession with alienation and injustice (Hussain, 2011). The Saudi Arabian, however, would be able to handle matters of succession and inheritance more effectively if they use the Quran alongside other statutory regulations.

King Abdullah issued royal decrees in 2007 with the objective of transforming the legal system, and among these was the formation of the Law of the Judiciary, which is directed by the Ministry of Justice depending on the government’s directives. Among the changes was the formation of family courts that have several mandates based on Article 33 of the Law of Procedures (Hussain, 2011). One of the fundamental roles of the family court is division and legacy of succession, encompassing shares in wills or endowments, disputed properties, or other similar violations (Hussain, 2011). The judicial arm, nonetheless, experiences considerable limitations from the monarch government, which derails the initiatives to clarify the laws and possibly achieve equal inheritance.

Lack of effective statutory laws on succession and inheritance usually affect the women more whose rights have been severely restricted in comparison with women in other nations because of the strict interpretation and execution of Sharia law. A 2016 Global Gender Gap Report by the World Economic Forum ranks KSA 140 out of 144 nations for gender parity with factors such as seclusion during inheritance being among the factors that contribute to the variation (Human Right Watch, 2020).[4] The Quran directs that daughters can only inherit half of what sons get, which gives men and male children a upper hand in succession matters. Women in some rural settings are denied their entitled shares, as they are perceived to be part of their husbands or fathers (Human Right Watch, 2020). It is even more difficult for women who marry outside the tribe because this limits their chances of getting inheritance. The lack of proper written family laws is a major concern for women, some of who flee to other nations with the hope of finding freedom.

Despite the progress that should take place to improve the nature of succession and the formation of wills, it is imperative to mention that the Arabs’ model of inheritance has made significant strides since the Period of Ignorance when the unawareness and ignorance surrounding inheritance issues was high and unopposed. Prior to the developments existing today, only men who had the capacity to safeguard the family’s honor had the right to inherit property, and the old, the sick, minors, and the weak were not given any share (Hussain, 2011). Furthermore, widows, women, daughters, and minors did not have the right to inherit on the basis that they lacked the capacity to defend their clan or tribe’s honor (Hussain, 2011). Nevertheless, dependence on Quran as the only guide on matters of succession and inheritance without drafting informed regulations may not solve the constraints the Arabic kingdom experiences in terms of executing the wishes of the dead.

Succession Laws in Other Countries

Succession Law in the United States

Succession law in the U.S. does not fall under the directives of the federal government, but is instead regulated by private laws relegated to state authorities. During the colonial period, several states applied the English inheritance laws, but after independence, most states adopted laws that common statutes with some adjustments to English laws and procedures (Nissley & Fialco, 2018).[5] Despite the variations, most states include common features in their inheritance laws, and the directives are relatively detailed compared to that of KSA.

Most American states create their inheritance laws in such a way that they exhibit certain similarities, especially in the way they capture the most essential components of a will. Testamentary intent is a mandatory requirement when drafting wills in many American states and it describes that the testator has subjectively displayed that the document constitutes their will at the time it was written (American Bar Association, 2013). Ordinarily, most states require the testator to use the first person to write the last will and testament (Deaton, 2007). In addition to testamentary intent, the composer of the will must have a testamentary capacity at the time of executing the will (American Bar Association, 2013). Testamentary capacity requires the testator to know the nature of writing a will, know the nature and extent of his or her properties, as well as know the dispositions of the properties called for by the document.

Pace v. Richmond (1986) is an example of a case where the plaintiff argued that the testator lacked testamentary capacity during the drafting of a second will. The Virginian-based case involved Robert Lee Pace (the testator) who had mentioned his nephews (Montie and Hamilton Pace) as his sole heirs in a will he formally created on April 5, 1986 (Justia, 2020). Mr. Pace, however, renounced the initial document saying that he will leave no inheritance whatsoever to his nephews who, according to him, paid little attention to the testator in the past decade and were not able to care for themselves (Justia, 2020).[6] The appellants contested the second will saying that the drafter was open to unnecessary influence, was old, and suffered from weak-mindedness (Justia, 2020). The Supreme Court of Virginia ruled that the testator lacked testamentary capacity, and the lessons from the case illustrates how American inheritance laws put much emphasis on the importance of being free from any influence at the time of drafting the will.

The inheritance laws in most American states put emphasis on signature requirements, although the courts tend to adopt a liberal perception of what the standard form of a testator’s signature, as well as emphasize on witness attestation. Typically, signatures would range from the testator’s initial name, nickname or any other symbol, especially when drafted by an illiterate person (ABA, 2018).[7] Some states do not restrict the position of the signature, while others direct that it appears at the end of the document. Most American states in addition to signing, a witness must append their signature as well. The witnesses must meet certain minimum requirements lest they may be legally incapable to validate the document. Specifically, the inheritance laws in the U.S. require the witness to be of sound mental capacity, mature enough, and if possible being able to attest in a court of law. The states have varying views on whether the testator should append their signature in the presence of the witness, as well as on whether the drafter or the witness should sign first. A will is likely to be challenged in court if they do not have clear signatures and full approval of both the testator and the witness.

The American inheritance laws recognize a will as being valid if no fraud and undue influence and no mistakes occurred during the formation process. Bove (2005) writes that fraud is a major ground to invalidate a will, and mostly entails the production of false statements known to be untrue by the party making the document. Undue influence could occur in a scenario where acts are made with the motive of misleading the testator. Undue influence could also involve substituting the will of another person for that of the testator (Michaud & Aynesworth, 2010).[8] Furthermore, American courts invalidate a will when it contains mistakes such as omission of vital information, misplacements, and misinformation on material facts (Randolph, 2018). Above all, Americans would consider a will to be legally binding if it has an attorney’s approval and if the will is put under safe custody (Clifford, 2017). Many courts assume there was undue influence in scenarios where the lawyer or attorney composed the will. Testators, therefore, should ensure that their wills do not display any forms of fraud, undue influence and mistakes to easily defend their composition and wishes.

Succession Law in the United Kingdom

The UK government and courts put much emphasis on certain key features of a will, and jurists would only affirm legal disputes when either party presents tangible proof regarding the legal aspects protecting succession and inheritance. Even though the details are not as intricate as they are in the U.S., a will is valid when it sets out the beneficiaries, the person who will take care of any child under 18 years, the person(s) going to execute the testator’s wishes after their demise, and what should happen if one of the beneficiaries dies before the composer (Crown, 2020). The UK inheritance laws permit testators to seek professional assistance if necessary, especially if their document is not straightforward (Crown, 2020).[9] A person, for example, may seek legal advice when they want to pass the property to a person who is not their wife, husband, or civil partner, or when they want to leave a property or money to a person who cannot care for themselves (Rajah, 2017). The UK succession law is similar to the American’s in the way it advocates for keeping the document safely, preferably the testator’s solicitor, bank, the London Probate Service, or any reputable firms that provide safe storage of wills (Crown, 2020). Unlike the Americans, the UK does not put much emphasis on factors such as the witnesses and signatures, although documents stand higher chances of being acceptable if they have such important features. Unless a will meets the minimum requirements in the UK, neither the testator nor the beneficiaries can defend it in court. 

Succession Law in Australia

An Australian, unlike an America or a Briton, cannot draft their own will and should seek the services of a Public Trustee, which oversees the drafting to achieve credibility. The Public Trustee is a government institution in each territory, which serves as a trustee in the execution of a last will and testament, especially in instances where the testator does not mention an executor or includes Public Trustee as part of the beneficiaries (Cunich, 2013).[10] The Public Trustee requires the will to be writing, and must be signed by the testator. The Public Trustee puts similar requirements as those of Americans in the way it requires the testator to be of sound mind, understanding and good memory, and in the way the testator’s signature must be witnessed by other parties – neither of which can be a spouse of the testator or beneficiary of the will (Mackie & Pont, 2017).[11] The witness must also sign the document in the presence of the testator and other parties present. The will should indicate clearly that it is the last will and revokes all previous wills and should appoint one or more executors (Mackie, 2017). Furthermore, the will should clarify payment of any debts including funeral expenses, and should indicate how the assets should be distributed. The Australian succession law also provides room for overriding and updating or changing a will (Mackie & Pont, 2017). Wills that do not meet the above requirements are not valid and may not be executed if legally contested.

Suggestions for Future Improvement

Saudi Arabia can make internal transformations as well as borrow lessons from developed nations that would help to improve succession practices. Saudi Arabia should improve its legislations on family laws to develop regulations that advocate for equal chances of inheritance to influence people when they write their will to consider women as equal partners in the succession. The laws should provide chances for sensitization programs to create a society where males understand and value writing wills where they allocate considerable shares of their property to their wives and daughters (Sawyer, 2015).[12] A fundamental lesson Saudi Arabia learns from the developed nations is the need to develop clear structures on how to create a will, including what to include in the document and who ought to oversee the drafting. KSA, for instance, learns from the American and Australian inheritance laws the importance of signing the document in the presence of one or witnesses who is not a beneficiary in the will. Saudi Arabia may also acquire the lesson of getting verification from reputable bodies or individuals as it happens in Australia where the Public Trustee oversees the drafting of wills and in the U.S. where an attorney affirms the authenticity of a will before it becomes fully valid.

Conclusion

Saudi Arabia needs to refine its laws on succession and inheritance as well as acquire lessons from developed nations to achieve a scenario where the guidelines are clear and people get equal shares regardless of their gender. Saudi Arabians should try to use Sharia law together with statutory guidelines to develop well-structured succession and inheritance laws, and to ensure that many women do not suffer the consequences. The kingdom should learn from countries such as the U.S., the UK, and Australia that have clear guidelines supported by law on how to pass the properties of a dead person to their rightful heirs.

References

ABA. (2018). Wills and estates. Kansas: ABA.

American Bar Association. (2013). American Bar Association guide to wills and estates. New York, NY: Diversified Publishing.

Bonefield, L., Grossman, J., LaPiana, W. (2020). Wills, trusts and estates: A contemporary approach. Cambridge: Cambridge University Press.

Bove, A. (2005). The complete book of wills, estates & trusts. London: Holt Paperbacks.

Clifford, D. (2017). Quick & legal will book. Huston, NOLO.

Crown. (2020). Making a will. Retrieved from https://www.gov.uk/make-will/writing-your-will

Cunich, R. (2013). Understanding wills and estate planning: Important things to consider when planning for the future. New York, NY: Oxford University Press. 

Deaton, J. (2007). Intestate succession and heir property: Implications for future research on the persistence of poverty in central Appalachia. Journal of Economic Issues, 41(4), 927-942.

Human Right Watch. (2020). Saudi Arabia: 10 reasons why women flee. Retrieved from https://www.hrw.org/news/2019/01/30/saudi-arabia-10-reasons-why-women-flee

Hussain, J. (2011). Islam: Its law and society. Sydney: The Federation Press.

ICNL. (2017). Saudi Arabia: Philanthropy law report. Washington, DC: ICNL.

Justia. (2020). Pace v. Richmond. Retrieved from https://law.justia.com/cases/virginia/supreme-court/1986/821749-1.html

Mackie, K., & Pont, G. (2017). Law of succession. Melbourne: RELX Group.

Mackie, K. (2017). Principles of Australian succession.  Melbourne: LexisNexis Australia.

Michaud, S., & Aynesworth, H. (2010). “If you love me, you will do my will”: The stranger-than-fiction saga of a trappist monk, a Texas widow, and her half-billion-dollar fortune. New York, NY: Norton. 

Nissley, J., & Fialco, L. (2018). How to probate an estate in California. Huston: NOLO.

Rajah, E. (2017). Last will & testament. Cambridge: Cambridge University Press.

Randolph, M. (2018). The executor’s guide: Settling a loved one’s estate or trust. Huston: NOLO.

Sawyer, C. (2015). Succession, will and probate. New York, NY: Routledge.

Tilse, C., Wilson, J., White, B. (2016). Making and changing wills: Prevalence, predicators, and triggers. SAGE Open, doi.org/10.1177/2158244016631021

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[1] Bonefield, L., Grossman, J., LaPiana, W. (2020). Wills, trusts and estates: A contemporary

                approach. Cambridge: Cambridge University Press. The will, for example, may inform who inherits the late person’s buildings, cars, or land.

[2] ICNL. (2017). Saudi Arabia: Philanthropy law report. Washington, DC: ICNL. The development of supplementary laws suggest that Saudi Arabians are increasingly becoming concerned on the need to achieve better family laws, particularly those touching on succession and inheritance.

[3] Hussain, J. (2011). Islam: Its law and society. Sydney: The Federation Press. The description reveals that the Quran is still a major source of reference on matters of inheritance.

[4] Human Right Watch. (2020). Saudi Arabia: 10 reasons why women flee. Retrieved from

                https://www.hrw.org/news/2019/01/30/saudi-arabia-10-reasons-why-women-flee. Saudi Arabia needs to embrace better ways of incorporating women in family matters, including succession to achieve a society where gender disparity is not so wide.

[5] Nissley, J., & Fialco, L. (2018). How to probate an estate in California. Huston: NOLO. The description indicates that the Americans borrowed lessons from the English on how to create their succession and inheritance laws, but later refined and developed their own versions.

[6] Justia. (2020). Pace v. Richmond. Retrieved from https://law.justia.com/cases/virginia/supreme-

                court/1986/821749-1.html. The renouncing of the initial will serves as the source of contradiction, which prompted Mr. Pace’s nephews to challenge the second drafty in court.

[7] ABA. (2018). Wills and estates. Kansas: ABA. The state laws in the U.S. differ in what constitutes a signature, which give people the freedom to append any symbol that can identify them.

[8] Michaud, S., & Aynesworth, H. (2010). “If you love me, you will do my will”: The stranger-

                than-fiction saga of a trappist monk, a Texas widow, and her half-billion-dollar fortune.

                New York, NY: Norton.  The information encourages testators to avoid influences that could be termed as interfering with their judgment to avoid scenarios where their documents are revoked or challenged in court for lacking testamentary capacity.

[9] Crown. (2020). Making a will. Retrieved from https://www.gov.uk/make-will/writing-your-will. A person can seek legal assistance concerning the creation of their wills from attorneys or relevant legal institutions and professionals to avoid mistakes that could interfere with the nature of their document and composition.

[10] Cunich, R. (2013). Understanding wills and estate planning: Important things to consider when planning for the future. New York, NY: Oxford University Press.  An Australian must seek the guidance of a Public Trustee for their will to be recognized as being valid. Reliance on a third party to create the will makes the practice quite costly for some individuals who may not be in a position to pay the Public Trustee officers.

[11] The need to have witnesses and their signature make the Australian process of composing a will similar to that of America.

[12] Sawyer, C. (2015). Succession, will and probate. New York, NY: Routledge. The laws KSA creates to improve succession matters in the country should also inform members of the public about the importance of passing inheritance without considering the gender variations.