Bequest to an Heir: When It Is Valid and When It Is Void According to KHI

In many families, a father or mother once gave a verbal instruction: "This house will go to the youngest later, okay." Such a message seems simple, but when the estate starts to be divided, it often causes confusion. Is that message a bequest (wasiat)? Does it override the inheritance shares already established by sharia? The answer depends on who receives the message and on its form and the family's consent.

A Bequest and Inheritance Are Different

A bequest (wasiat) is an instruction from the deceased for part of his wealth to be given to a specific person or used for a specific purpose after he dies. Inheritance is the transfer of wealth to the heirs based on the faraid provisions established in the Qur'an, namely An-Nisa 4:11, 4:12, and 4:176.

Because they are different, the two also have a clear order. Before the wealth can be called inheritance, the following obligations must first be fulfilled:

• the cost of handling the funeral;
• the debts of the deceased, including debts to other people and unpaid installments;
• the bequest, with a maximum limit of one-third of the net estate;
• only after that is the wealth divided among the heirs according to faraid.

This means the bequest must not be calculated from the gross estate. If the deceased still had debts, those debts are deducted first, and the remainder is then the basis for calculating the bequest and the inheritance.

Two Main Limits in KHI

Book II of the Compilation of Islamic Law (KHI) regulates bequests in considerable detail, particularly in Article 195. There are two main limits that Muslim families in Indonesia should remember.

1. A maximum of one-third

A bequest must not exceed one-third of the net estate. This limit protects the heirs so that the family's wealth is not exhausted by instructions that are too large. If a bequest exceeds one-third, the scholars differ on how it should be carried out; some permit the excess if all heirs are willing, while others implement it only up to the one-third limit. Therefore, for cases like this it is best to consult the Religious Court (Pengadilan Agama) or a notary.

2. A bequest to an heir requires consent

This is the part that most often causes misunderstanding. According to KHI, a bequest to a person who is also an heir does not automatically take effect. Such a bequest is valid only if all other heirs consent to it. The reason is clear: each heir's share has already been established by sharia, so an additional instruction from the deceased must not reduce the rights of his siblings without their willingness.

It should be noted that consent must be given knowingly and without pressure. Heirs who are still minors cannot give consent themselves, so the matter needs to involve a guardian and, in many cases, a court determination. This is where expert advice is essential.

Conditions for a Bequest to an Heir to Be Valid

• Its value does not exceed one-third of the net estate.
• All other heirs who are adults and legally competent consent to it.
• Consent is given voluntarily, not because of pressure or reluctance.
• It is preferably made in writing, clearly naming the recipient and the amount, and strengthened before a notary or two witnesses.
• Its purpose is not disobedience and it does not harm other parties.

If these conditions are not met, the bequest is not carried out and the wealth is divided purely according to faraid. It is important to understand: consent is not a formality, but the determinant of whether a bequest to an heir is valid or not.

Calculation Example

The late Bu Siti left a net estate of Rp900.000.000 after funeral costs and debts were paid off. Her heirs are: husband, one son, and two daughters. Before her death, she wrote a bequest giving Rp200.000.000 to her son. This figure is still below one-third (Rp300.000.000).

In the first column, the bequest is void because the husband and both daughters did not consent to it. The husband receives 1/4 because there are children, and the remainder is divided 2:1 between the son and the daughters. In the second column, the bequest is carried out first in the amount of Rp200.000.000, and then the remaining Rp700.000.000 is divided according to the same pattern. Both columns still total Rp900.000.000.

Common Mistakes

• Assuming that a bequest always overrides faraid, whereas for an heir the consent of the others is required.
• Calculating the bequest from the gross estate, before debts and funeral costs are deducted.
• Relying on a verbal message without witnesses, so that it easily gives rise to disputes.
• Equating a bequest with a gift (hibah). A gift is given during one's lifetime and is not limited to one-third, whereas a bequest takes effect after death.
• Assuming that an adopted child automatically becomes an heir. KHI recognizes the obligatory bequest (wasiat wajibah) for an adopted child with a maximum limit of one-third (Article 209), and its implementation needs to be examined carefully.

Practical Steps

1. Calculate the net estate: all assets minus funeral costs and debts.
2. Write the bequest clearly: who the recipient is, how much it is, and for what purpose.
3. Appoint an executor of the bequest (washi) whom the family trusts.
4. If the bequest is directed to an heir, request written consent from all other heirs, preferably before a notary.
5. Consult a notary, PPAT, or the Religious Court about complicated cases before the wealth is divided.

As a comparison, IndoWaris can draw the family tree and calculate each heir's faraid share, so that the family can see clearly how a bequest affects the division.

This article is general information, not a fatwa or legal advice. Every family has different circumstances, and the final decision should be taken after consulting the competent authorities.