In a quote by Ruth E. Renkel: “Sometimes the poorest man leaves his children the richest inheritance.”
While Ambrose Bierce through her insightful quote elucidates that:
“Death is not the end. There remains the litigation over the estate.”
As I stood at the pews of the St. John the Baptist Church in Benaulim, Salcete attending the funeral Mass of a mother who passed away leaving four daughters as her heirs, the importance of executing an equal and equitable distribution of the estate being left behind was a thought which occurred to me as the Hymns were being recited by the Church Choir during the Mass.
From an Advocate’s perspective, the elusive and obscure idea of treating certain heirs as being preferential inheritors does not do well ethically when tested on the anvil of a parent’s conscience. All offspring who are begotten from the wedlock of the spouses imperatively deserve a proportionally equal representation of their rights to inheritance in the rights of their respective progenitor’s Estate(s).
And a good practice would always be to plan in advance a prior plan of execution of the assets of the estate which is going to be left behind at the time of death of the bequeather in favour of the co-heirs by virtue of their right to succeed to the estate within the bounds of the law. More than often it would be a case of betrayal when the co-heirs come to the knowledge of preferential bequeathals being written in the last testament of the deceased Estate Leaver. The practice of the Law is a precise endeavour and an Advocate’s duty should always be to curb the unpredictability of the last wishes being recorded in the last testament when it comes to the knowledge of the disadvantaged coheir.
In fact two highly relevant Articles of the Portuguese Civil Code, 1867 would be worthy of being reproduced herein adverbatim.
The first being Article 2042:
“Article 2042 - Prohibition of agreement to renounce -
No one shall, not even by ante-nuptial contract, renounce the right to the succession of a living person, or alienate or charge the rights, which eventually might have to the inheritance of that person.”
The second being Article 1565:
“Article 1565 – Sale to children or grand children -
Parents or grand parents shall not be entitled to sell or mortgage to children or grand children if the other children or grand children do not consent to the sale or mortgage.”
The third being Article 2177:
“Article 2177 – Disposal of specified portion of a common property -
A co-owner may not, however dispose of any specific part of the common property, unless the same is allotted to him in partition; and the transfer of the right which he has to the share which belongs to him may be restricted in terms of the law.”
In the famous landmark Judgment of the High Court of Bombay at Goa authored by R.M.S. Khandeparkar in the Appeal of
Jose Antonio Philip And Ors. Vs. Joao Luis Laurente Dos And Ors.
On 31 August, 1998, it was observed that:
“9. Article 2177 of the said Code provides that a co-owner cannot dispose of specifically any portion of the common property without the same being assigned or allotted in partition to him. Thus, it prohibits the alienation of a properly in the form of a gift by any person unless the said property exclusively belongs to the donor. In other words, a gift can be of a property or any share in a property which exclusively belongs to the donor. In case of a property which is owned by a person along with some other person or persons, it would be a case of co-ownership of the property and in such a case, considering the provisions contained in Article 2177 of the Portuguese Civil Code, the co-owner would not be entitled to dispose of either the entire property or any specific portion of such a property unless and until the share of such a co-owner in the property is allotted, partitioned and separated in loco.”
Getting back to the aspect of executing the estate in favour of the potential successors during the lifetime of the deemed estate leaver is one of the greatest honours that a person can confer upon their community.
Not only does this innovative practice evade long drawn litigation between successors who are at odds about the ultimate proportion of their deserved right to inheritance in accordance with the laws of inheritance but a well planned estate that has been administered in favour of the deemed heirs through an execution of the partition prior to their passing away serves the economic interests of the state by saving immovable property from the plague of inordinate litigation and the revenue proceeds thus generated from the estate helps to generate tax revenues for the State and country at large. As per Suze Orman: “Estate planning is an important and everlasting gift you can give your family. And setting up a smooth inheritance isn’t as hard as you might think.”
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
