The Family Land and the Widow's Share
Tenzin dies intestate in Thimphu, survived by his widow Deki, two sons (Ugyen and Karma) and a daughter (Chimi). The family holds 6 acres of registered agricultural land in Punakha, a house in Thimphu registered in Tenzin's sole name, and a joint savings account of Nu. 2.4 million. Tenzin's elderly mother also survives him. Before his death, Tenzin told the family that the Punakha land should go to Ugyen because Ugyen had farmed it for 12 years, and that the Thimphu house should go to Karma, who lived there with his wife. Chimi was told she would receive "a suitable amount" from the savings. No will was executed. Ugyen has since taken physical possession of the Punakha land and refuses to account for its produce; Karma has changed the locks on the Thimphu house.
1. Explain how Tenzin's estate devolves, and address the effect of his oral statements.
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Tenzin died intestate, so his estate devolves according to the statutory rules of intestate succession, not according to his wishes. An oral declaration of testamentary intent is not a valid will; Bhutanese law requires a written will executed with the prescribed formalities and, where land is concerned, registration. The statements to Ugyen, Karma and Chimi therefore create no legal entitlement and cannot be used to displace the statutory shares.
The estate comprises all three assets: the Punakha land, the Thimphu house, and the Nu. 2.4 million account, subject to any proof of joint ownership in the account. On intestacy the widow, the surviving children and the surviving mother take their prescribed shares. The widow's share cannot be reduced by family arrangement. The court should first determine whether the Punakha land is registered as family land held jointly, in which case the widow's and children's interests may already be recorded, or as Tenzin's sole property, in which case it falls into the estate. The oral wishes are relevant only as evidence of what the family understood, not as a disposition.
2. Ugyen and Karma have taken possession. What remedies are available to Deki and Chimi?
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Both sons hold the assets as de facto possessors without legal title. Deki and Chimi may sue for partition and for an account. For the Punakha land, the court can order partition by metes and bounds if physically practicable, or sale and distribution of proceeds if not. Ugyen must account for the produce he has taken since Tenzin's death, less the reasonable cost of cultivation, because a co-heir in possession cannot keep the whole income of joint property.
For the Thimphu house, Karma's change of locks is an ouster of co-heirs. The court should order restoration of access and either partition, sale, or an occupation arrangement with compensation to the excluded heirs. Interim relief is appropriate to prevent further dealing with the property, including a restraint on transfer or mortgage. The widow's residence in the family home should be protected during the proceedings. Costs should follow the event, and the court may direct that the Nu. 2.4 million account be frozen pending determination of the shares.