Wills: What Can and Cannot Be Arranged

Many families only realize the importance of a will after a dispute arises. For example, someone dies with a will that gives the entire house to one child, while the other children receive nothing. As a result, the other heirs file claims and the inheritance distribution process can drag on for years.

This article discusses what can and cannot be arranged in a will under Indonesian law. You will learn about the limits of the absolute share of heirs, the formal requirements that must be met, and common mistakes that make a will easy to contest. The goal is for you to plan your inheritance with more peace of mind and avoid family conflict.

What Is a Will and What Is Its Legal Standing?

A will is a statement of a person's wishes about what will happen to their property after they die. In Indonesia, wills are governed by the Civil Code (KUHPerdata) and the Compilation of Islamic Law for those of the Islamic faith. A will is unilateral and can be changed or revoked at any time by its maker as long as they are alive and legally capable.

A will is different from a grant (hibah). A grant is made while the maker is still alive and immediately transfers ownership. A will only takes effect after the maker dies. Therefore, a will may not reduce the rights of certain heirs that are already guaranteed by law, unless the requirements for the absolute share are met.

The Limits of the Absolute Share of Heirs (Legitieme Portie)

Indonesian law recognizes an absolute share (legitieme portie) that cannot be eliminated by a will. This share is calculated from the inheritance after deducting debts. Heirs in the direct descending line (children and descendants) and ascending line (parents) are entitled to this absolute share.

The size of the absolute share depends on the number of heirs. If there is only one child, their absolute share is half of the inheritance. If there are two or more children, the absolute share of each child is two-thirds of the share they would otherwise receive. For heirs in the ascending line, the absolute share is half of the statutory share if there is only one person, or two-thirds if there are two or more.

Example: An inheritance worth Rp1.000.000.000. If there are two children, each should receive Rp500.000.000. The absolute share of each is 2/3 x Rp500.000.000 = Rp333.333.333. A will may not reduce this absolute share. The remaining property after the absolute share can be bequeathed to anyone, including a child or another party.

What Can Be Arranged in a Will?

A will can arrange various matters related to property, as long as it does not violate the absolute share of heirs. You can determine who receives certain items, such as a house, vehicle, or shares. You can also make a bequest to someone who is not an heir, such as a nephew or a foundation, within the limits of the absolute share.

In addition, a will can contain the appointment of an executor tasked with managing the distribution according to the instructions. A will can also include instructions about burial or donations. However, a will may not arrange matters that conflict with law, morality, or public order.

What Cannot Be Arranged in a Will?

First, a will may not eliminate or reduce the absolute share of heirs. If a will violates this, the disadvantaged heirs can file a claim to demand their share. Second, a will cannot be used to give property to animals or objects, because the beneficiary of a will must be a person or legal entity with legal capacity.

Third, a will cannot arrange marital status or child custody, as those fall under different family law. Fourth, a will cannot require heirs to perform acts that violate the law. Fifth, a will cannot revoke the rights of heirs established by law without a valid reason, for example a child who commits a serious crime against a parent.

Formal Requirements That Must Be Met

A will must be made in the form prescribed by law. There are three common forms: a public will (notarial), a holographic will (handwritten by the maker), and a secret will. For a public will, you must appear before a notary and state your wishes. The notary will set them out in a deed and keep it.

A holographic will must be written, dated, and signed by the maker of the will themselves. After that, the will is stored with a notary. A secret will is a will made by the maker themselves but handed to a notary in a closed condition. The notary draws up a deed of deposit. All these forms require certain witnesses according to the rules.

Another formal requirement is that the maker of the will must be legally capable, meaning they are an adult (generally 18 years old or already married) and not under guardianship. A will must also be made without coercion, mistake, or fraud. If these requirements are not met, the will can be annulled.

Mistakes That Make a Will Contested

The first mistake is not calculating the absolute share of heirs. Many people think a will can give all property to one person. In fact, the other heirs are entitled to the absolute share. The second mistake is not meeting the formal requirements, for example a holographic will not stored with a notary, so its validity is doubtful.

The third mistake is coercion or fraud at the time the will is made. If the heirs can prove that the will was made under pressure, the court can annul it. The fourth mistake is not including the date and signature on a holographic will. Fifth, the will is not registered or stored properly, making its authenticity difficult to prove.

Practical Steps to Draft a Strong Will

Here are steps you can follow to minimize the risk of dispute. Assumption: the inheritance consists of one house and savings, with two children as heirs.

1. 1Calculate the total inheritance after deducting debts. Example: house Rp800.000.000 + savings Rp200.000.000 = Rp1.000.000.000.
2. 2Determine the heirs and their absolute shares. With two children, the absolute share of each is 2/3 x (1/2 x Rp1.000.000.000) = Rp333.333.333.
3. 3Determine the property to be bequeathed. The remainder after the absolute share: Rp1.000.000.000 - (2 x Rp333.333.333) = Rp333.333.334.
4. 4Choose the appropriate form of will. For legal certainty, use a public will before a notary.
5. 5Prepare supporting documents: ID card, family card, list of assets, and proof of ownership.
6. 6Appear before a notary with two witnesses, then read and sign the will deed.
7. 7Keep a copy of the will in a safe place and inform the executor.

After the will is made, review it periodically, for example every 3-5 years or when there is a major change in the family or property. Changes can be made by drafting a new will that revokes the old one.

This guide is general in nature and is not personal legal or financial advice. Every family situation is different, so consult a notary or inheritance law expert for the right decision.