An elderly parent, no longer earning, is dependent on children who have stopped providing. Sometimes the property they own has already been transferred to one of those children, on an assurance of care that was never honoured.
This is among the most common situations families bring to us and the one they are most reluctant to litigate — which is precisely why it persists.
There is a legal obligation
The duty to maintain parents is recognised in Pakistani law, and legislation has been introduced at provincial and federal territory level in recent years providing elderly parents with a mechanism to claim maintenance from children who are able to provide it.
The essential elements are consistent: a parent unable to maintain themselves, a child with the means to do so, and a forum that can order periodic payment.
Because these statutes are provincial and relatively recent, take advice on the mechanism applicable where the parent resides.
Separately, and importantly, this is not only a matter of statute. Maintenance obligations within a family arise under personal law as well, and a parent is not without remedy simply because a particular statute does not apply.
What a claim involves
Broadly:
Establish need. That the parent lacks sufficient means of their own — income, pension, or property producing income.
Establish the child's means. Employment, business, property. A child genuinely without means cannot be ordered to pay what they do not have; a child arranging their affairs to appear without means is a different matter.
Quantify what is reasonably required — food, accommodation, medical care, which for an elderly person is frequently the largest element.
Apportion, where there are several children. The obligation does not fall wholly on the one who happens to be nearest or most dutiful.
Orders are for periodic payment and can be enforced. They can also be varied if circumstances change.
The property problem
This is the harder and more common issue.
The pattern: an elderly parent transfers a house to one child — by gift, or by a sale for a nominal price — on the understanding that they will be cared for and may live there. The care does not follow, and sometimes the parent is asked to leave.
Several things are worth knowing.
A gift requires delivery of possession. A "gift" where the parent continued to live in and control the property as before is open to challenge as no valid gift at all. See gift, will or sale.
Undue influence and lack of understanding are recognised grounds for setting a transfer aside, and the circumstances the courts look at — an elderly, unwell or dependent transferor, a transaction of no benefit to them, secrecy from other family members, the transferee arranging the paperwork — are exactly the circumstances in which these transfers are made.
Transfers made to defeat other heirs are separately challengeable by them. See who inherits what in Pakistan.
Conditional transfers. Where a transfer was genuinely made on an agreed condition of care and residence, that condition matters — and is far easier to prove if it was written down.
Protecting an elderly person properly
For families who want to do this well rather than litigate later:
Do not transfer the home outright in exchange for a promise. If a transfer is intended, reserve a right of residence for life in the instrument, and record the care obligations expressly.
Consider a will instead of a lifetime transfer, remembering the one-third limit and the requirement of the other heirs' consent for a bequest to an heir — see making a will with assets in two countries.
Keep other heirs informed. Secrecy is the strongest predictor of both litigation and abuse.
Where capacity is in question, obtain a contemporaneous medical assessment before any transfer. It protects the transaction if genuine and protects the parent if not.
Guardianship of property may be appropriate where an elderly person can no longer manage their affairs, and it is better arranged deliberately than left to whichever relative takes control.
Financial abuse of the elderly
Beyond property, we see: pensions collected by a relative and not passed on, bank accounts operated under a power of attorney beyond what was authorised, cards and documents withheld, and property let out with the rent retained.
Where a power of attorney has been misused, it can be revoked — and the revocation should be registered where the power was registered — and the attorney is accountable for what they did with the authority. See giving a power of attorney from abroad.
Where documents or identity records are being withheld, that is itself worth acting on. See what to do when your CNIC is blocked.
For children living abroad
Overseas children are frequently the ones paying, and frequently the ones excluded from decisions about a parent's property while another sibling manages everything locally.
If you are supporting a parent from abroad, keep the record of remittances, and take an interest in the property position before a transfer happens rather than after. See our work for overseas Pakistanis.
How the firm can help
We act for elderly parents claiming maintenance and for children responding to such claims, and we advise on protecting an elderly person's home and finances — rights of residence, conditional transfers, revocation of powers of attorney, and proceedings to set aside transfers obtained by undue influence.
These matters are handled discreetly, and wherever a family arrangement can be reached we will pursue that first — litigation between a parent and a child is rarely a good outcome even when it succeeds.
Contact the firm, or telephone the chambers if the situation is urgent.