Does Last Will in Indonesia Have a Fatal Flaw?

Planning for the future is important, especially when it comes to our loved ones. You and I both know that. One way to ensure that our assets are distributed according to our wishes after we pass away is by creating a last will. But here’s the question: does the legal framework for last wills in Indonesia have a fatal flaw? 

To answer this, let’s dive into the laws governing last wills in Indonesia, including the Civil Code, the 1974 Marriage Law, and the Islamic Compilation Law (Kompilasi Hukum Islam, or KHI).

The Basics of a Last Will in Indonesia

In Indonesia, a last will, or testament, is a legal document where someone declares how their assets should be distributed after their death. The Civil Code of Indonesia (Kitab Undang-Undang Hukum Perdata, or KUHPer) provides the foundation for this. According to Article 875 of the Civil Code, a last will is a unilateral declaration of intent that only takes effect after the testator (the person making the will) passes away.

The Civil Code outlines several forms of last wills, such as an olographic will (handwritten by the testator), a testamentary will made before two witnesses, and an international will (recognized across jurisdictions). While this sounds straightforward, the reality is more complex, especially when we consider the interplay of other laws and cultural factors in Indonesia.

Legal Grounds: The Civil Code and Inheritance Clauses

The Civil Code has specific rules about inheritance and the limits of a last will. For instance, Article 913 introduces the concept of "legitime portie" or the reserved portion. This means that certain heirs, such as children or a surviving spouse, are entitled to a mandatory share of the inheritance. You and I might think that a testator has full freedom to distribute their assets as they wish, but the law ensures that these reserved heirs cannot be entirely disinherited.

Here’s an example: if a parent writes a will leaving all their assets to a charity and excludes their children, the children can challenge the will in court. The court will then enforce their right to the reserved portion, as guaranteed by the Civil Code. This limitation, while protecting heirs, can sometimes lead to disputes and undermine the testator’s intentions.

The 1974 Marriage Law and Its Impact

Now, let’s talk about the 1974 Marriage Law (Undang-Undang Nomor 1 Tahun 1974). This law plays a significant role in determining inheritance rights, especially in the context of marital property. In Indonesia, marital property is divided into two categories: joint property (harta bersama) and separate property (harta bawaan). Joint property is acquired during the marriage, while separate property is what each spouse brought into the marriage or received as a gift or inheritance.

According to Article 35 of the Marriage Law, joint property is owned equally by both spouses, regardless of who earned it. This means that when one spouse passes away, only half of the joint property can be included in their estate. The other half automatically belongs to the surviving spouse. This provision can complicate the execution of a last will, especially if the testator’s intentions conflict with the legal division of marital property.

For example, imagine a husband who writes a will leaving all his assets to his children. If some of those assets are joint property, the wife can claim her half, reducing the portion available for the children. This interplay between the Marriage Law and the Civil Code can create confusion and disputes among heirs.

The Islamic Compilation Law: A Different Perspective

For Muslims in Indonesia, inheritance is also governed by the Islamic Compilation Law (KHI), which is based on Islamic principles. The KHI provides detailed rules about how an estate should be divided among heirs, following the faraid system. Under this system, specific shares are allocated to heirs such as the spouse, children, and parents.

One key feature of the KHI is that a Muslim can only bequeath up to one-third of their estate through a last will. The remaining two-thirds must be distributed according to the faraid system. This limitation ensures that the rights of heirs are protected, but it also restricts the testator’s freedom to allocate their assets as they wish.

Let’s say a Muslim father wants to leave his entire estate to his daughter, bypassing his son. Under the KHI, this would not be allowed. The son is entitled to his share under the faraid system, and the father can only allocate up to one-third of the estate to the daughter through a will. This restriction can lead to dissatisfaction among heirs and challenges in court.

The Potential Flaws in the System

So, does the Indonesian legal framework for last wills have a fatal flaw? You and I might agree that it depends on how we define "flaw." Here are some potential issues:

1. Limited Freedom of Testation. The reserved portion under the Civil Code and the one-third limit under the KHI restrict the testator’s ability to distribute their assets freely. While these rules aim to protect heirs, they can also undermine the testator’s intentions.
2. Complex Interplay of Laws. The coexistence of the Civil Code, the Marriage Law, and the KHI creates a complex legal landscape. This can lead to confusion, disputes, and lengthy court battles, especially in cases involving mixed marriages or families with different religious backgrounds.
3. Cultural and Social Factors. In Indonesia, family dynamics and cultural norms often influence inheritance decisions. For example, in some communities, sons are favored over daughters, even though the law guarantees equal rights. These cultural biases can complicate the execution of a last will and lead to conflicts among heirs.
4. Lack of Awareness and Accessibility. Many Indonesians are unaware of the legal requirements for making a valid will. As a result, they may create informal wills that are not legally binding, leaving their families to deal with the consequences. Additionally, the cost of hiring a lawyer can be a barrier for some people.

Finding a Balance

While the legal framework for last wills in Indonesia has its challenges, it’s not necessarily "fatally flawed." The system aims to balance individual freedom with the protection of heirs, but there’s room for improvement. Here are some suggestions:

1. Simplify the Legal Framework. Harmonizing the Civil Code, the Marriage Law, and the KHI could reduce confusion and make the system more accessible.
2. Promote Legal Awareness. Educating the public about the importance of making a valid will and understanding inheritance laws can help prevent disputes.
3. Encourage Mediation. Inheritance disputes often strain family relationships. Encouraging mediation as an alternative to court battles can lead to more amicable resolutions.
4. Respect Cultural Diversity. Indonesia is a diverse country with various cultural and religious practices. The legal system should continue to respect this diversity while ensuring fairness and equality.

Conclusion

You and I can agree that planning for the future is essential, and a last will is a valuable tool for doing so. However, the legal framework for last wills in Indonesia has its complexities and limitations. By understanding the Civil Code, the Marriage Law, and the Islamic Compilation Law, we can navigate these challenges and make informed decisions.

While the system may not be perfect, it’s not beyond repair. With greater awareness, legal reforms, and a focus on fairness, we can ensure that last wills serve their purpose: honoring the wishes of the deceased while protecting the rights of the living. After all, isn’t that what you and I would want for our own families?

My name is Asep Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.