In principle, all inheritance of a person who pass away becomes the property of his heirs according to the law, as long as he has not made a final provision (Article 874 of Indonesian Civil Code). Nonetheless, what will happen if the Heir has divided his inheritance in a testament?

Based on Article 875 of the Indonesian Civil Code defines :

"A will or testament is a deed containing a person's statement about what he intents to happen after he dies, which can be revoked by him."

Besides, the Islamic Law Compilation ("KHI") itself defines wills in Article 171 letter f which stated:

"A will is the gift of an object from the heir to another person or institution which will take effect after the heir dies."

Furthermore, in the explanation of Article 49 Letter c of Law Number 3 of 2006 on Amendments to Law Number 7 of 1989 on the Religious Court, stated:

"What is meant by "will" is the act of a person giving an object or benefit to another person or institution / legal entity, which is effective after the person giving has passed away."

Legitimate Requirements of a Will

In practice and the legal provisions, according to the Article 931 of Indonesian Civil Code and according to the KHI,  a will must comply with the provision to determine its validity which according to the Indonesian Civil Code it must be written with two witnesses before a Notary or entrusted / kept by the Notary, meanwhile according to KHI it can be verbally or written but still must be in the presence of two witnesses or a notary. When the will is made without the formal requirements, it may implicate that the will is potentially being cancelled and has no legal binding force. And the will cannot be changed because the heir has passed away.

Limitations in The Creating of a Will

In the making of a will, the heir / testator cannot freely determine who he can divide the inheritance to. Which there are limitations and prohibitions in the provision of a will, which is based on the Indonesian Civil Code, the prohibitions and restrictions can be collected in the form of:

1. No heir appointment or hand-jumping testament grant (fidei-commis). In sense that the prohibition of carrying out a Fidei Commis is that the heir is prohibited from giving responsibility to the heirs who within a certain period of time are given the obligation to keep the inheritance which is then handed over to a third party. (Article 879 Civil Code);
2. The heir may not give a will to his partner (husband / wife) who is married without permission (Article 901 Civil Code);
3. The heir may not give a will to the second wife more than the largest portion that the second wife can receive (Article 852a jo. Article 902 Civil Code);
4. The heir is not allowed to make a provision of a will grant whose amount exceeds the right of the heir (testateur) in the union assets (Article 903 Civil Code);
5. The heir must not make an inheritance for the benefit of his guardian; teachers and priests; physicians, healers, pharmacists and other persons practicing the arts, who treat the heir during the illness that ultimately caused him to die; notaries and witnesses in making wills (Article 904 - Article 907 Civil Code);
6. The heir may not give a will to a child outside of marriage beyond its share as in Article 863 of the Civil Code (Article 908 Civil Code);
7. The heir may not give a will to the heir's adulterous friend (Article 909 Civil Code);
8. Prohibition of giving to people who are sentenced to have killed the heir, people who embezzled, destroyed or falsified the wills of the heirs, or people who by force or force prevented the heir to revoke or change his will, as well as his wife or husband and children ( Article 912 Civil Code).

Besides, based on Islamic inheritance law as stipulated in the provisions of the KHI there are also limitations in making a will as follows:

1. The / is at least 21 years old, has a sound mind and without coercion can inherit part of his property to another person or institution (Article 194 paragraph (1) KHI);
2. Ownership of new assets can be exercised after the testator dies (Article 194 paragraph (3) KHI);
3. A will is only allowed as much as one third of the estate unless all the heirs agree to it (Article 195 paragraph (2) KHI).

The Cancellation of a will and The Legal remedies

Referring to the provisions of Article 875 on Indonesian Civil Code that about wills made before a notary can be cancelled if it turns out that the procedure of the will is not in accordance with the provisions of the terms and conditions that applicable to the will. As described in the Legitimate Requirements for a Will and the Limitations in Creating a Will above.

Apart from that, the heirs who have objections and feel that the will is not in accordance with the provisions procedure of creating a will, the heirs can file a lawsuit to court to cancel a will.

Based on the definition, the legitimate requirements for a will and the limitations in making a will explanations above, can be concluded that if there is a will made by the heir and has a valid statute and does not contravene the limitations in the making of a will, the will has the force of law which must and must be implemented by the heirs. However, if a will does not meet the formal requirements and contravene the limitations in the making of a will, the party who feels injured can file a lawsuit in court to cancel a will.

With the cancellation of a will and therefore no force of law, the division of inheritance will follow the system adopted (choice of law), whether the Islamic legal system, Indonesian civil inheritance or customary inheritance.

This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com.

Author: Galuh Dwi Nugroho, S.H.