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Husband died after long desertion by wife. Now wife is back to claim his estate. What redress family of deceased has?

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asked on Apr 18, 2004 at 05:49
by   Confused
edited on Jul 20, 2016 at 20:14
 
A friend of mine registered his marriage in Malaysia to a foreign woman. They got married after a few months culturally and religiously. They lived together for three months and then problems. Woman left and declared she was leaving in front of witness and signed accordingly and has no further claims. Even a police report was lodged that she left.

Friend dies intestate after six years and woman lodges claims. What redress has family of deceased?
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answered on Apr 18, 2004 at 07:34
by   Vince
What sort of claim?

Is it personal gesture like coming to the house, shouting "Mad" for money?

Or claim through proper channels and proper procedures?

Had your late friend filed a divorce petition after the woman left?
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answered on Apr 18, 2004 at 17:57
by   Unni
edited Jul 20, 2016 at 20:18
 
Unless a will surfaces nominating your friends ex spouse as a beneficiary of his estate, she has very little chance of 'making any claims' to all of his estate in intestacy. What your friend's family needs to do is to get a lawyer right now not later, and to get the lawyer to make an application for probate and to deal with his estate.

The lawyer will make an application to the courts get a grant of letters of probate, take control of all his assets and then go through the process of paying off all his debtors and divide the remainder of the estate amongst his living relatives.

The fact that she evinced an intention to forego the matrimonial partnership so early in the piece (3 months???) and that there were witnesses to the event apart from the fact there presumably was no cohabitation for the six years till his death will make it very, very unconvincing for the woman to claim any right to his estate unless she can prove she brought into the marriage very valuable financial contributions that could or would have assisted him in acquiring or leveraging these to acquire his later assets.

If this is the case then other procedures are followed. These are too detailed to go through. But if you need to get a good lawyer first and if problems persist, ask again I will provide the necessary strategies for your friends family to defend the claim.

The fact that two people have a fight and separate or divorce does not mean that further down the track they cannot find the charity in their hearts to think better of each other and make a valid gifty either by will or by other valid means to each other. It has been known to happen before.

She will have to prove that she is entitled to his estate first and foremost. That's what she will be setting out to do. What sort of Family are you talking about in relation to the deceased? Brother? Mother? Sister?
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answered on Apr 19, 2004 at 03:58
by   Confused
edited Jul 20, 2016 at 20:21
 
Thanks for the responses.

The woman in question is making claims based on the marriage certificate. The marriage was not annulled because "good money (of my friend) was not to chase bad money" meaning a lot had been spent on the marriage, e.g. travelling overseas, etc. and now to apply for divorce. Furthermore, the woman lived overseas and this would involve more problems.

Just a few months before the death of my friend the woman approached a lawyer and he phoned my friend to apply for mutual annulment but apparently there were hidden motives, like extortion.  Otherwise, writing a letter would have been more appropriate. No letter followed. Is a marriage certificate the end-all? What about facts? What if the woman herself renounces her marriage, not the court, what protection does the husband have. It beats all cardinal principles of law like being guilty before proven so, because you have to clear your marriage before a court.

To tell the truth, nothing but the truth is not held, because the marriage certificate is the only truth in the world.

The relatives are mother, brothers and sisters.
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answered on Apr 20, 2004 at 21:29
by   Unni
edited Jul 20, 2016 at 20:24
 
You are very correct and have hit the nail on the head. WHAT ABOUT THE FACTS? This is what you will rely on in a court of law. There is nothing that will stop his estate going into probate (going into legal distribution after proof of claims). It is at this stage that that the woman will make her claim. She has to provide evidence of her claim.

Look you people stand a good chance of defeating her claims if you stick together and gather all the evidence you have to provide your lawyer in challenging her claims. The court is assisted in its decision by the evidence and the strength of the evidence that is put before it.

Getting a good lawyer (not someone simply with a law degree). Ask around. That's important. Find someone with a reputation that's good. There is no use compounding your present problem with a bigger one and that is by getting a fool incompetent and greedy to deal with your matter. (your brothers matter).

The marriage certificate must also be supported by the actions or evidence of a working genuine marriage. It is no use having a marriage certificate if the marriage was not genuine or it had broken down and was annulled in all but record.

A marriage has a legal definition and this is not confined to the mere signing of a certificate and going on honeymoon. It is a lifelong partnership recognised in law and in convention (custom). The law looks very hard and unfavourably at people who abuse the institution of marriage. Those who do it for citizenship or new passports or to gain wealth. It is a matter of proving it before a court.

I would be interested to see how you go. Keep us posted.

Cheers!
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answered on Apr 21, 2004 at 05:10
by   confused
edited Jul 20, 2016 at 20:28
 
Thanks Unni.

I have spoken to two or three lawyers. The most senior says the marriage stands because it has not been annulled by a court of competent jurisdiction. A marriage exists with the marriage certificate and entitles the woman to all her rights even after desertion because a court did not annul it. What a piece of ridiculous legislation!

He says the court will only look at the certificate and decides the status and that's that. This is one court where nothing else matters.

Perhaps if you cite some case law that beats this, we will bring it up.

Here apparently the lawyers over-read the law little realising the background of such law, like preventing bigamy. The marriage has to be annulled before one can re-marry. By just saying the woman is the lawful wife, they say she has full rights of a wife without performing wifely duties, having wifely behaviour. This is like sitting on the moon and making laws for earth. It is just like saying we have pictures of dinosaurs, therefore there ARE real dinosaurs now. They don't even think of abuses of the certificate. When there are abuses the onus is on us to bring up in court, like little children running to the mother for every trivial thing. They do not even become smarter after the event. The certificate prevents this.

The woman herself leaves and declares so, yet she is afforded rights. In what principle, law or morality is this anchored?
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answered on Apr 23, 2004 at 18:10
by   confused
edited Jul 20, 2016 at 20:31
 
I am still waiting for responses. The court instead of just stating its word is law must start looking from the point-of-view of society, which is represented by the legislature. What did society want when the legislature passed the laws?

In simple terms, people may just decide not to get married through registered marriage because of enormous difficulties afterwards (vs. so easy to register a marriage). It's what society accepts that matters, for example, we have seen currencies issued but people won't accept them as of any value and when they become unacceptable, they just die off. Similarly, linguists and experts decide on spellings and words, but if people don't use them, they die a natural death. We can see this in the trend of live-ins because of the difficulty of divorce and cost. As was said earlier, we don't need judges, but just machines or computers to carry out laws if no thinking is required, just programmed law.

Any responses?
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answered on Apr 23, 2004 at 23:59
by   Unni
edited Jul 20, 2016 at 20:32
 
No one is suggesting that this woman has no rights. She has no rights under a  will if there is evidence that she was excluded or it was the late husbands desire to exclude her from benefiting from any of his assets and his estate in intestacy. Equity will intervene.

There is such a thing called a secret trust which operates as a will. It is a question of evidence which you and your relatives will have to put together in sworn and affidavit format for the court to prove that the man, did clearly express an intention to exclude her from his estate and claiming any of his assets.

It will also be worthwhile proving that he had formed the opinion (Honestly) that the marriage was over and support the same with evidence. Again affidavits, evidence of her living away from him for years to demonstrate her leaving and deserting the marriage. The fact there were no other joint accounts or anything else held in joint names, the woman may have lived under a different name or lived with someone else or had a relations or relationships with different persons since moving away. These matters can be proved if you obtain the services of private investigator. It is not difficult to do.

You must make the effort and the necessary inquiries before you proceed. If the facts on which you rely and you have provided here are accurate, I simply do not see any real difficulty in his trustee in intestacy defeating the woman's claims. She may be able to prove her marriage certificate is intact, that alone does not mean you are married by definition. A woman or man who shows up with a certificate of marriage to a Malaysian man or woman cannot claim automatic rights of entry as a spouse in Malaysia if they are no longer married or their married genuine. There are certain tests for this.

Another example is the fact that many people who hold foreign citizenship but who also hang on to their Malaysian Identity Cards and Passports. When the heats turned on the question then does not turn to whether or not the test of citizenship is based purely on holding a valid legal document evidencing an event (citizenship or marriage), there are other factors which go to support the claim. Same thing with your family friend. I think the lawyers are not specialised in the area or unwilling to work the issues.
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answered on Apr 25, 2004 at 04:29
by   LoyarMiskin
Ummmm. Unni....one can't apply for letters of probate if one dies intestate.....
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answered on Apr 25, 2004 at 04:33
by   LoyarMiskin
When was this supposed marriage contracted? If this was after 1983 and the marriage was NOT registered, then she would have no claim to anything, despite evidence of cultural and religious ceremonies. The Federal Court has held recently that all marriages contracted after 1983 have to be registered to be recognised as a legally binding marriage. So if the marriage was NOT registered, then no claim from that woman can be entertained.
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answered on Apr 26, 2004 at 06:42
by   confused
edited Jul 20, 2016 at 20:42
 
The marriage was registered in 1996. Nevertheless, it came to an end and society knows it. But the courts, the lawyers say, only consider the legal aspect, that is, there is marriage until a court breaks it.  That may be preposterous, but the courts are so powerful.  Their word is law.

Secondly, only now the government is talking about morality vis-a-vis N or National Integrity Plan. The courts can never abuse their powers? It must be admitted that the law cannot cover everything in the world and the judges must first use their moral sense because the law was made to protect morality.

Furthermore, the courts take time to make judgements and anything can happen in-between, who is responsible? Justice delayed is justice denied. Has the court or judge ever been punished for this?  A person may die waiting for divorce and that was God's Act. But does the judge say he wanted this divorce so I grant it by backdating it so that my act is complete and I know the meaning of relativity of time and don't have to refer too Hawkins.  Likewise, there is no punishment for desertion, as for bigamy. That means the certificate of marriage was simply to prevent bigamy and that's it. After proven desertion, to still recognise the marriage goes against all natural laws.

Our legislature makes unnatural laws?  To say the aggrieved party must bring the matter to court, is making the institution of marriage a sentence. To set aside the sentence the party must get the court to set it aside. For a sentence, at least the prison enforces rules, but in the case of desertion, who enforces rules?
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