Section 1 – The Will*
*The expression (…. and inheritance) mentioned in the heading of Section 1 of Chapter 8 of the law
was cancelled by virtue of the first amendment law № 11 of the year 1963.
The will is the disposition of the legacy after the death of the testator, intended to pass ownership without compensation.
1- The will shall not be considered legally valid unless it was written by the testator and joined with his signature, his seal, or his thumb fingerprint. If the bequest is real estate or movable property the value of which is no more than 500 Dinars, it shall be certified by the notary public.
2- The will may be established by testimony if there is a material hindrance that prevents the acquisition of the written evidence.
The will prepared by courts and competent authorities shall be applicable if no concerned party objects to it.
The testator must be legally qualified to donate and he must be the owner of what he bequeaths.
The beneficiary must:
1- Actually or presumably be alive at the time of making the will and upon the death of the testator. The will is considered valid for moral persons, charities, and organizations of public interest.
2- Not have murdered the testator.
The bequest must be capable of appropriation after the death of the testator.
Bequeathing by will more than one third of the estate is not permissible except with the authorization of the heirs. The state shall inherit from the one who has no heir.
The will is valid only for movable property when the heir is of a different religion. It is also valid only for movable property when the heir is of a different nationality, on the condition of mutual treatment by the heir’s country of nationality.
The will shall become void in the following cases:
1- If the testator retracts his will. However, retraction shall not be established except by proof that is equal to that establishing the existence of the will.
2- If the testator loses competence until his death.
3- If the testator uses the bequest in a way that alters its name or most of its characteristics.
4- If the bequest was destroyed or consumed by the testator.
5- If the beneficiary refuses his bequest after the death of the testator.
The will shall take into consideration the provisions of articles 1108 to 1112 of the Civil Code.
1- If the child, male or female, dies before his father or mother, he shall be considered as alive upon the death of any of them. His share of the legacy shall be handed down to his own children, males or females, according to Shari’a laws. It shall be regarded as a binding will provided that it won’t exceed one third of the legacy.
2- The binding will, by virtue of paragraph 1 of this article, shall gain priority over other wills in the settlement of one third of the estate.*
*Article 74 was cancelled by virtue of the first amendment law № 11 of the year 1963. A new text was added to article 74 by virtue of the third amendment law № 72 of the year 1979. This amendment took effect as of its publication in the official gazette, and its provisions shall apply to the deaths of grandfathers and grandmothers taking place after its entering into effect.
Section 2 – Appointing an Executor
The executor is nominated by the testator to carry out the directions of the will after his death.
The executor must enjoy legal and legitimate competence.
1- If the executor accepts the nomination in the life of the testator, it shall become binding on him after the latter’s death and he shall not withdraw his acceptance unless he was given the right to choose.
2- If the executor withdraws his acceptance of the nomination during the life and with the knowledge of the testator, his renunciation shall be valid.
1- If the testator appoints more than one executor, the latter will have no right to solely dispose of the will. In case one of them did, his decision shall not be effective but with the authorization of the other.
2- The disposition of the will by one of the two executors without the permission of the other shall be effective in the following cases:
a- If it does not go against common sense.
b- If it involves no collection or receipt of money. c- If its delay will cause harm.
3- If the testator had requested that his executors be unified or independent from one another, his request shall be observed.
4- In case of a dispute between the executors, the judge will oblige them to cooperate; otherwise he shall replace them with others.
The executor shall observe each condition stipulated by the testator in the will unless it is against the law and the Shari’a.
The executor is the guardian of the money he is entrusted with, so he shall not be penalized unless he breaks the trust or fails to perform his mission.
If a person dies without having appointed an executor, the judge shall appoint an executor in the following cases:
1- If the deceased is owed money and he has no heir to establish the debt and collect it.
2- If the deceased owes money to another person and he has no heir to settle it.
3- If he has a will but there is no executor to implement it.
4- If one of the heirs is a minor and has no guardian.
Section 3 – Cessation of Custody
The guardian’s mission ceases to exist in the following cases:
1- The death of the minor.
2- The minor reaches 18 years (unless the court decides that custody must continue).
3- The father or the grandfather recovers custody after it ceases to be his.
4- The completion of the work the guardian was appointed to supervise or the expiration of his temporary appointment period.
5- The acceptance of his resignation.
6- The cessation of his competence.
7- His disappearance.
8- His dismissal.
1- The testator has the right to dismiss the guardian he had appointed without the latter’s knowledge.
2- The judge does not have the right to dismiss the chosen guardian unless for a legitimate reason. If he is partially incapable, the judge has the right to appoint someone to assist him, and if he is totally incapable, he can replace him with another.
The guardian is dismissed in the following cases:
1- If he is convicted with a dishonorable crime or a felony.
2- If he is sentenced to more than a one year period of imprisonment.
3- If a legal litigation or family dispute occurs between the minor and one of the guardian’s ascendants or descendents, or his wife in a way that might harm the minor’s interest.
4- If the court deems the guardian’s actions and negligence threatening to the minor’s interest.
5- If some cheating occurred in the accounts of the guardian.
The guardian shall be dismissed as of the date of loss of competence.
Next: Chapter 9 – The Legacy