Introduction
When you execute a last will in Indonesia, you are doing more than writing down who should receive your property after your death. You are creating a legal document that must comply with Indonesian rules on inheritance, marriage, property ownership, religion, and formal execution.
This becomes more complicated when your family or assets involve another country. You may be a foreign national living in Indonesia, an Indonesian citizen with overseas property, or part of a mixed-nationality marriage. In those situations, your heirs may later encounter a document called an Affidavit of Foreign Law.
You may never see this affidavit while preparing your will. That is because it is usually not the will itself. Instead, it is a sworn legal explanation prepared for a foreign court, lawyer, or government authority. Its purpose is to explain how Indonesian law applies to your estate.
What Is an Affidavit of Foreign Law?
An affidavit of foreign law explains the Indonesian laws to the legal authorities of another country. For example, if you execute a will in Indonesia but your estate is being administered in another jurisdiction, the foreign court may need to understand Indonesian legal concepts.
The affidavit might explain whether your will was validly executed before the two witnesses, how Indonesian law treats marital property, or which heirs have legally protected shares. It may also explain the difference between a civil-law testament and an Islamic wasiat.
The important point is this: an affidavit does not repair an invalid will. It does not allow you to avoid mandatory inheritance rules. It simply helps a foreign authority understand the Indonesian legal framework that governs part of your estate.
The Civil Code and Testamentary Freedom
The Indonesian Civil Code, or Kitab Undang-Undang Hukum Perdata, provides the main framework for wills and inheritance for matters governed by the civil-law system.
Article 874 states that a deceased person’s estate belongs to the legal heirs unless the deceased has made a valid testamentary arrangement. Article 875 defines a will as an act containing a person’s wishes concerning what should happen after death. It also recognizes that the will can be revoked during the testator’s lifetime.
That means you remain free to change your will while you are alive, provided you have legal capacity and comply with the required formalities. A will is not a permanent promise to your heirs. It is your revocable legal expression of what you want to happen after your death.
The Civil Code recognizes different forms of wills, including a public will made before a notary, an olographic will written and signed by the testator, and a secret or closed will. Although several forms may be legally available, I would strongly favor a testamentary last will. It provides a clearer record and reduces disputes about authenticity, capacity, coercion, or improper execution.
The Limitation of the Legitime Portie
Your freedom to distribute your estate is not unlimited. Articles 913 and following of the Civil Code recognize the concept of the legitime portie, or reserved portion.
The legitime portie protects certain heirs in the direct line, particularly children and, in some circumstances, parents. It represents the part of the estate that the law reserves for them. You cannot simply use a will to defeat these mandatory rights.
For example, if you leave your entire estate to a friend while ignoring children who are protected heirs, those children may challenge the will or demand restoration of their reserved shares. The will may not automatically disappear, but its provisions can be reduced to protect the legal entitlement.
This is why a will should not be drafted as though you own unlimited power over every asset. You may only distribute property that legally belongs to you, and even that power may be restricted by protected heirship rules.
The 1974 Marriage Law and Marital Property
The Marriage Law, originally enacted as Law No. 1 of 1974 and later amended, is also important when preparing a will. It affects the question of what actually belongs to you before your estate is divided.
Under Article 35, property acquired during the marriage is generally treated as joint marital property, or harta bersama. Property owned before the marriage, or received individually through inheritance or a gift, is generally treated as separate property, or harta bawaan, unless the spouses have agreed otherwise.
This distinction is essential. Suppose you and your spouse bought a house during the marriage. You normally cannot write a will giving away the entire house as if you owned it alone. Your spouse’s legal interest must first be identified. Only the portion belonging to you can become part of your estate.
Before executing a will, you and I should therefore consider whether the asset was acquired before or during the marriage, whether there is a prenuptial or postnuptial agreement, and whether another person has an ownership interest.
A will that ignores marital property is not clever planning. It is a dispute waiting to happen.
The Islamic Compilation Law
For Muslims, inheritance and wills may also be governed by the Islamic Compilation Law, or Kompilasi Hukum Islam(KHI). The KHI was disseminated through Presidential Instruction No. 1 of 1991 and includes provisions concerning marriage, inheritance, and charitable endowments.
Article 171 defines important inheritance concepts, including wasiat, which is a bequest taking effect after death. Article 195 recognizes several methods for making a wasiat, including making it orally before witnesses, in writing before witnesses.
However, Article 195 also limits a wasiat to a maximum of one-third of the estate unless the heirs consent to a larger amount. A bequest to an existing Islamic heir generally requires the consent of the other heirs.
In practical terms, a Muslim’s will operates alongside the faraid system. It does not replace the mandatory inheritance shares of Islamic heirs. You may use a wasiat to support a non-heir, a charitable organization, or another chosen beneficiary, but you cannot casually rewrite the fixed shares provided by Islamic inheritance principles.
When the Affidavit Becomes Relevant
An affidavit of foreign law becomes especially useful when another country must understand the Indonesian legal position. It may be requested where the deceased owned Indonesian property, executed an Indonesian will, married under Indonesian law, or had heirs whose rights are determined under Indonesian law.
The affidavit might explain that the will was made before you died, that joint marital property must be separated from the deceased’s estate, or that the Civil Code protects certain heirs through the legitime portie. For a Muslim testator, it might explain the one-third limitation under Article 195 of the KHI.
The document may also need an official translation, legalization, or apostille, depending on the requirements of the foreign jurisdiction.
Conclusion
A last will in Indonesia can make your wishes clearer and reduce uncertainty for your family, but it cannot override every mandatory legal rule. The Civil Code regulates testamentary formalities and reserved portions. The 1974 Marriage Law helps determine which property actually belongs to you. The Islamic Compilation Law imposes additional rules for Muslim testators.
My practical advice is straightforward: prepare the will with assistance from a legal expert like Wijaya & Co, identify your marital-property regime, list your assets accurately, consider your nationality and religion, and coordinate the document with any foreign estate plan.
You may never see the affidavit of foreign law that your heirs later use. That is fine. If your will was properly prepared, the affidavit should simply explain your legal position, not rescue a badly drafted document. The best estate planning is clear, lawful, and understandable before your family is forced to interpret it after you are gone.
My name is Wijaya, writing for Wijaya & Co. We orchestrate to assist you navigate. Thank you for reading my posts.
This post is general information, not legal advice. A qualified Indonesian legal expert or inheritance lawyer should review any actual will, especially where foreign nationals, mixed marriages, Muslim heirs, land, or overseas assets are involved.