Definition and terms of customary law of inheritance
In Indonesia there are three legal systems governing the issue of inheritance, ie Islamic law, Western law and customary law. Each legal system has style and characteristics of its own. Customary inheritance law has the complexion and distinctive characteristics of Indonesia, as stated by Hilman Hadikusuma:
It has the customary law of inheritance patterns and distinctive characteristics of Indonesia, which is different from Islamic law and Western law. Because the only difference from the natural background of the Indonesian people's mind that berfalsafah Pancasila with communities which are diverse yet. Background it is basically a life together that is mutual help in order to realize and peace in life. (Hilman Hadikusumah, 1983: hlm.19)
Besides the customary inheritance law is a rule governing the issue of customary inheritance. As stated by Soepomo. The customary law of inheritance includes the rules that govern the process to continue and pass down property goods and goods that do not materialize objects (immateriele goederen) from a human force (generatie) to the derivatives. (R. Soepomo, 1980: hlm.81 -82).
Inheritance law not only contained in customary law, but also found in Islamic law and Western law. This is not only due to the division in article 163 and article 131 IS, but the reality now is still felt and there is division.
To distinguish between inheritance law in one legal system with inheritance laws in other legal systems, so in this case used the term customary inheritance law. The term beneficiary there is no unity of meaning, whether found in legal dictionaries and other sources. There are interpreting the term beneficiary with "legacy, inheritance or doubtful debts left by a person who dies wholly or partially to the right of the heirs or the person specified in the will." There was also a beneficiary interpret "the right to receive inheritance from the deceased."
It appears there are differences, on the one hand defines the term heir to the heritage and on the other hand defines the persons eligible to receive the family inheritance. The difference of opinion shows the lack of uniformity in the language of our laws.
To get a clear understanding of the need for unity of opinion on a term. To achieve that, the work done is to trace the etymology.
The term comes from the Arabic heritage that was taken over into Indonesian, which is derived from the word "warisa" means to inherit property, "meaning heir heirs, beneficiaries". Waris indicate people who receive or inherit property from someone who had died. This also can be seen from the "Word of the Prophet Muhammad. : Ana warisu manla warisalahu means I became heir of people who had no heirs (Ahmad and Abu Dawood). "
In terms of customary law of inheritance broader meaning than the meaning of its origin, not only because the beneficiary after the death of the world but while he still lives of people who will leave his property to bequeath to their beneficiaries.
Customary inheritance law or some call it with the customary law of inheritance is customary law that essentially governs the person who left the property or give his property (Heir), estate (inheritance), heir (heirs and not the heiress) and property transfer and forwarding heir of the heir to the beneficiary.
To know in depth, following the opinion of the experts pointed out the customary law, such as Ter Haar, Soepomo, Faith Sudiyat, Soerojo Wignyodipoero and Hilman Hadikusuma.
According to Ter Haar BZN:
... Customary law of inheritance that includes the legal rules relating to the process over the centuries has attracted the attention, is the process of forwarding and switching of material wealth and of the derivative immateriel offspring.
The customary law of inheritance includes the rules that govern the process forward and turn over the goods do not materialize objects (immateriele goederen) from a human force (generatie) to derivatives.
According Soerojo Wignyodipoero:
The customary law of inheritance include legal norms that define both the material wealth of a person who does that can be handed over to their offspring and simultaneously also regulate when, how and transitional processes. (Soerojo Wignyodpoero, 1985: 161)
According to Faith Sudiyat:
Customary inheritance law covers the rules and legal decisions relating to the router / transfer and transition / transfer of material and immaterial wealth from generation to generation.
According to Hilman Hadikusuma:
... Customary inheritance law is customary law that includes provisions on the lines of the system and the principles of inheritance law of inheritance, the heir and the inheritance and the way how the estate was transferred control and ownership of the heir to the heir.
Of the several opinions in the above there is a similarity that, customary inheritance laws governing inheritance forwarding and transfer wealth from one generation of offspring. This indicates the occurrence of customary law for inheritance must meet four basic elements, namely:
1. the Heir;
2. Treasure of Inheritance;
3. Inheritance of experts; and
4. Forwarding and estate transfer.