A document that contains a person’s wishes regarding the disposition of that person’s property is known as a will. A person’s property is distributed among the heirs of the deceased by two methods: by testamentary succession and by intestate succession. Intestate succession is the succession in which the deceased dies without leaving any will, while testamentary succession is when the deceased leaves a will for the disposition of his assets when he dies.
The federal law no. 28 of 2005 on civil status (hereinafter “the law”) provides for the regulation of succession – testamentary and intestate of the deceased’s property. The law establishes the rules that must be followed with respect to wills for the purposes of testamentary succession. This article analyzes the essential elements and the conditions that must be met for a valid will.
The term ‘will’ is defined by law as the disposition of an estate that is enforceable after death. Therefore, it is a process of disposition of the estate of the deceased in accordance with the wishes of the deceased. A will may be absolute, that is, the disposition must take place as specified in all the circumstances, or it may have several conditions on which the intended dispositions may depend, and the will may be contingent, dependent, or restricted by such condition. When said condition provided in the will is valid, the will is enforceable as long as that condition is met. Any condition that is against the principles of Islam is considered an invalid condition and when a will is combined with invalid conditions, the will is still enforceable but without the condition. The nullity of said condition is discarded and the will is applied as if such condition were not foreseen.
Another important regulation provided by law for wills is that relating to the scope of a will. Under the law, the will can only be made out of a third of the decedent’s assets, and this third is calculated after deducting amounts that are any person’s rights or obligations of the decedent. If the distribution by will exceeds a third of the inheritance, it may be satisfied with the quotas of the heirs of legal age, if they allow it.
The important elements of a will are as follows:
1. Legante – the person who draws up the will that will be executed after your death.
2. Legatee – the person in whose favor the will is drawn up. The legatee can be one or more than one, it can also be a group of determined or non-determined persons.
3. Legacy object: it is the patrimony of the Legatee who draws up the Will that must be delivered to a Legatee after the death of the Legatee. The thing bequeathed must be property of the Legante and legitimate. The legacy object must be common or specific. The bequeathed common object shall include all the present and future assets of the Decedent. The specific thing bequeathed shall include properties and furniture, fungible things, valuable things, real estate, utilities and the use of real estate or furniture for a specified or indefinite period of time.
4. The formula – refers to the form arranged by the Legant in the Will for the disposition of the bequeathed assets.
In addition, it is established that the Legator of a Will must have the capacity to draw up said Will. People in their Last Sickness are said to have such an ability. The latter disease is described as the disease during which the man cannot handle his usual affairs and in which he is most likely to die in this condition within a year. If his illness continues for a year or more while in the same state, his dispositions will be considered as effective as those of a healthy person. Likewise, the cases in which the man is threatened with danger of death and in most similar cases in which death is more likely even if he is not sick, will be considered as last illnesses. Even a will created by lavish people is considered valid if the court allows it.
A Legant is also permitted to retract his Will at any time during his lifetime and the loss of property so bequeathed by the Will has the effect of retraction of the Will.
A will can be made in favor of a specific person and to validate it, said person must accept the will in life or after the death of the Grantor. If acceptance occurs during life, it must continue until after death. In the event that the person is a minor, the acceptance must be given by his guardian on his behalf, prior authorization for the same from the judge.
Wills created for unspecified persons do not need to be accepted or rejected and in the case of entities, establishments or institutions, the will must be accepted or rejected by their legal representatives.
The legatee is not required to accept the will immediately after the legatee’s death and may do so at any time thereafter, but the rejection of the will must be made within a period of thirty days from the day the legatee learns of said will and is informed of the details specified in the will regarding the part of the property that was bequeathed to him. If the legatee remains silent for a period of thirty days after said will comes to his knowledge, he will be deemed to have accepted the will. When the will is encumbered with an obligation, said period of thirty days will be extended to a period of fifty days. In the event that the legatee has a permissible reason for not being able to respond within the specified period, more time may be granted if he so requests.
In the event that the legatee dies after the death of the legatee but before accepting or rejecting the will, the will will fall to the heirs of the legatee. This provision is valid only when the will is not burdened with obligation(s).
