Display Map
Hide Map

Shiite Personal Status Law of Afghanistan (2009) – 3: Provisions of Will, Inheritance, Devotion & Gift

PART THREE: PROVISIONS OF WILL, INHERITANCE, ENDOWMENT AND GIFT
CHAPTER ONE: WILL
Definition and Types of Wills

Article 196:

A will is the manifestation of a person’s intent, [whether in writing or oral] which becomes effective on the person’s death and can be of two types:

  1. An ownership will results when a person transfers the ownership of property or profit to a beneficiary, and the beneficiary verbally or by his actions accepts the property before or after the person’s death. However, if the beneficiary rejects the property or profit before or after the death of the person, the will is invalid.
  2. A committing will results when a person commits or requests someone else to do something after the person dies that does not directly involve the transfer of assets.

The Method of Making a Will

Article 197:

(1). A will is made when a person makes a clear written or oral declaration of his intentions, or by his actions makes his intentions clear, or if he is unable to speak by making clear gestures.

(2). If a will is conditional as to time or special circumstance then the will is valid upon the occurrence of those circumstances. For example, if a person says that if I die from this disease or if I die during the current year [the beneficiary will inherit the said property].

Elements of a Will

Article 198:

A will has the following elements:

1. Testator: the person who makes the will
2. Purpose of will: the testator shall identify the use to be made of the bequest. 3. Beneficiary: the person who receives the bequest.
4. Bequest: the subject of the will.
5. Executor: the person who is appointed to implement the will.

Conditions to Validate a Will

Article 199:

(1). The testator must be sane, not acting under duress, and own the goods or financial rights that are the subject of the will. An executor or guardian of a ward cannot make a will on behalf of the ward.

(2). The purpose of the will must be Sharia-permitted. A will made for an immoral purpose is invalid.

(3). The beneficiary shall meet the following conditions: 1. Be alive at the time the will is made.
2. Have the competency to possess goods.

(4). The bequest shall meet following conditions:

1. Exist when the will is made or be capable of exiting in the future, including the actual property or the benefits flowing from the property such as right to Tahjeer.

2. Must be specific or have the capability of being determined, such as a specific weight [item] in an unspecific total.

3. Must be capable of being property regardless of quantity.

4. Must have the capability of being possessed. Making a will that includes alcohol, gambling equipments or pork is prohibited.

5. Must be capable of being transferred.

6. Must be the current property of the testator, or become his property in the future.

(5). Only one third of the bequest under a will that is made on the verge of dying is valid, and more than that [1/3] is subject to the other heirs’ permission. If some of the heirs give permission [to the distribution of the bequest] than that amount shall be deducted from their share of inheritance. In the case of a one third will, if the testator is murdered, one third of the dia [blood compensation to the victim] shall be included in the will.

(6). In the case of a one third will, if the heirs agree to give more than one third of the bequest to the beneficiary, then the beneficiary will receive more than one third.

(7). Making a will to deprive legitimate heirs of their share of the estate is invalid.

(8). If the testator is wasting his/her estate [with an intention to deprive the heirs of their lawful inheritance] the testator’s will that may harm the heirs is invalid.

(9). A son who is ten year of age and is sane can make a will for charity.

(10). The will of a periodical insane and the will of a bankrupt person are valid; however, payment of a bankrupt person’s debts and executing his/her commitments shall take priority over the provisions of the will.

(11). When a person seriously harms him/herself with the intention of committing suicide, his will is invalid, unless he makes his will after recovery and treatment.

Ownership Will

Article 200:

(1). The beneficiary shall accept the will either before or after the death of the testator by his oral statement or action or that of his agent in order to validate the will. If the beneficiary accepts some but not all of the bequest the will is valid as to the accepted part of the bequest.

(2). A will is valid as to forgiveness of debt without the express acceptance of the beneficiary [debtor].

(3). Rejection of ownership of a will during the life of testator is invalid, but acceptance after rejection and rejection after acceptance, after the death of the testator does not affect the validity of the will.

(4). If the beneficiary dies before acceptance [of the bequest] during the life of the testator or after his [the testator’s] death, the heirs of the beneficiary have the right to accept or reject the will, unless the testator changes the will during his life [after the death of the beneficiary].

(5). The guardian of an unborn child, after the child’s birth, and the guardian of a minor and an insane person and an imbecile can accept or reject a will in the best interests of the ward.

(6). The rejection of a will by a bankrupt person, after the issuance of court order for the purpose of preventing him from possession of assets, is valid.

(7). Profits (definite or indefinite) derived from the bequest, after the death of the testator and the acceptance by the beneficiary, belong to the beneficiary.

(8). If delay in the acceptance or rejection of the bequest caused by a beneficiary creates damage to heirs, the court shall require the beneficiary to make an immediate decision regarding the acceptance or rejection of the bequest.

(9). If the bequest is not specific, the composition of it [bequest] will be determined by the heirs, unless it is described sufficiently in the will.

(10). A fetus can be the beneficiary under a will. If the fetus is not born alive then the will is invalid. If the fetus is born alive and dies after being born, then the fetus’ heirs become the beneficiaries under the will.

(11). If the identity of the beneficiary cannot be determined in the will then the executor or the heirs will determine the identity of the beneficiary. If the beneficiary rejects the will, then the bequest will be given to another person in the same class.

(12). A beneficiary can be an heir or someone who does not have any relationship to the testator.

(13). If the bequest is wasted [destroyed] during the period between the death of the testator and the acceptance by the beneficiary, in the case where the bequest is a specific asset, the will is invalid; and the bequest will be removed from the estate.

(14). If a bequest cannot be specifically identified then the heirs shall determine it [the bequest]. But if a specific object is mentioned then one sixth of that object will become the property of the beneficiary. If the word Sahm or [share of the object] is used then one eighth of the object will become the property of the beneficiary. If the word Joz’a [portion of the object] is used then one tenth of the object will become the property of the beneficiary.

(15). The profits from a definite asset included in the bequest belongs to the heirs; the expenses of protecting the asset will be provided from the profits.

A Committing Will

Article 201:

(1). If the profit from the use of a definite asset for a specific time is the bequest, but the beginning time of the use is not specified in the will, the heirs will determine when the use commences.

(2). [in a committed will] the executor appointed by the testator has limited authority in performing the following affairs:

  1. Guardianship of a child.
  2. To manage one third of the assets designated for a specific purpose.
  3. Management and distribution of the estate.
  4. Any other tasks assigned to the executor, for example, printing the writings of the testator, collection of asset’s income, and selling products [of the estate].

Requirement for an Executor

Article 202:

(1). The executor should meet the following requirements:

  1. He/she should be an adult; if the executors are a minor and have not reached puberty, then the minor does not have the right to execute the will until he/she has reached puberty.
  2. He/she should be sane.
  3. He/she should be a Muslim.
  4. He/she should be trustworthy [honest].
  5. He/she should be competent to exercise property [related] and financial rights.

(2). If special qualifications are required of the executor and if he/she loses those qualifications then executor shall be dismissed.

(3). If the deceased has not appointed an executor the court upon request by the heirs and other interested persons shall, in consultation with Shiite scholars in that community, assign a trustworthy person [trustee]as the executor in which case [the court] shall consider the following:

  1. Account for the estate and its distribution including payment of expenses, payment of debts and separating the assets that have been included in the deceased’s will [from overall estate].
  2. File law-suits against the debtors in case of nonpayment.
  3. Pay the required funeral expenses of the testator.
  4. Take necessary measures to maintain and prevent the estate from being wasted.
  5. Perform all other tasks such as protection of minors and those with mental illness, and carry out economic transactions etc.,

(4). If the estate is wasted during administration of the will, the trustee is not responsible, unless he/she has acted against the provisions set by the testator in the will, or if he/she neglects to perform his/her duties according to the provisions of the will.

(5). The executor can reject appointment as executor of the will, and inform the testator before the testator dies. Otherwise the executor is obligated to execute the will, unless he/she is unable to execute the will, or he/she faces obstacles in the execution of the will, or if the execution is considered harmful to him/her [executor].

(6). The testator can appoint several executors, one after another, to execute the will.

(7). If the testator appoints several executors with a specified authority they should perform accordingly. Otherwise they [executors] are required to consult with each other. However, if that [consultation] is not possible the court shall split the task of the executors and if that too is deemed impossible the court shall appoint two other executors.

(8). The executors shall act in accordance with the terms of the will. If they are required to act collectively then they may not divide the assets in order to administer them separately.

Appointment of an Supervisor and a Trustee

Article 203:

(1). The testator can appoint one or more persons as supervisor to oversee the performance of the executor(s).

(2). In case of absence, inability, illness or death of one of the executors, with the same authority, or supervisor the court shall appoint another person as a trustee alongside the remaining executors.

(3). If the authority of the supervisor is not specified whether he/she is an Etlayee informant] or a Esteswabi [corrective supervisor: someone with authority to correct the actions of the executors] then he/she shall be considered Etlayee.

Expenses of Preserving the Properties or Objects Included in the Will

Article 204:

Expenses related to safe keeping of the estate of the testator until the completion of the administration of the will, shall be paid from one third of the estate, and benefits of the above mentioned assets belong to the beneficiary.

Withdrawal of the Will

Article 205:

The testator may revoke his/her will in total or in part by words or acts, which is considered withdrawal under existing traditions, before he/she dies. Also the testator can withdraw the will after the beneficiary dies.page79image21992
page79image22152

Two Contradictory Wills

Article 206:

If there are two wills contrary to each other, the last [most recent] will shall be valid, but if the date of both or one of the wills is unknown, the applicable will shall be selected by drawing lots.

Determining 1/3 of the Original Assets of the Estate and Payment of the Sharia-specified Duties from the Original Assets

Article 207:

(1). One third of the bequest shall be determined from the actual estate of the deceased, keeping in mind, the time of the death of the testator, and after paying debts, religious obligations, burial expense, maintaining of the estate, fee of the executor and other anticipated expenses in this law.

(2). If the will specifies completion of religious duties such as a fifth (khams), religious tax, hajj expense or payment of a debt and so forth, those expenses shall come from the actual or original estate even if that [those expenses] includes the entire estate, unless the testator has specified one third of his/her estate [for this purpose]. If the will cannot be covered from one third, then the remaining portion shall be paid from the actual estate.

Proving the Will

Article 208:

(1). The will shall be proven through the following:

1. Confession of the interested people and heirs.
2. Testimony of two righteous men or one righteous man and two righteous women or one righteous man together with the beneficiary’s oath regarding ownership will.

3. Existence of a reliable handwritten will with the signature of the testator.

(2). The entire property of the ownership will shall be proved by testimony of four righteous women; half of the property of the ownership will shall be proved by the testimony of two righteous women; and a quarter of the ownership will shall be proved by the testimony a woman; but a committed (Ahdi) will shall only be proved by the testimony of two righteous men.

(3). If some of the heirs and interested persons confess to a will, the will shall only be executed as to their share, providing that they meet the requirement for proving the will.

 

CHAPTER TWO: INHERITANCE

Definition of Inheritance and Estate

Article 209:

(1). The deceased persons’ estate shall be transferred to his/her relatives in accordance with the provisions of this law.

(2). Estate is property or transferable objects and financial rights that could be transferred after natural or legal death of a person, and includes the right of rescission, right of pre- emption as well as well as debts and commitments.

(3). The estate is considered a legal person before payment of debts, execution of deceased person’s commitments, and distribution of the heirs’ portions.

Grounds for Inheritance

Article 210:

(1). The grounds for inheritance are as following:

1. Genealogical relationship between the deceased and his/her relatives.

2. Marital relationship between the deceased and others.

3. Wala (Relation between slave and his/her master).

(2). In case of existence of several grounds for inheritance, the heirs shall be given priority in accordance with the provisions of this law.

Loans, Rights and Obligations

Article 211:

(1). The heirs cannot conduct any transaction with regard to the estate prior to the payment of the deceased person’s loans and financial rights deriving from the estate, unless a proportion of the estate remains unclaimed. In this case, the additional parts of the estates can be used.

(2). The creditor’s debts, Hajj expenses, Khoms [charity given to religious clergy], and Zakah [alms] shall be paid from the deceased person’s estate. If the portion dedicated to Hajj is not sufficient, it shall be deducted from other financial duties. If the creditors’ portion is insufficient for the payment of the entire debt, the above-mentioned portion shall be deducted from each creditor’s portion proportional to their respective debts.

(3). The privileges given by the government or insurance companies to the deceased person’s successors after his/her death shall be considered part of the estate, unless the contract states otherwise.

(4). The deceased person’ debts shall be considered due after his/her death.

(5). Transfer of the estate is deemed compulsory, refusal or any agreement to not transfer is null and void.

(6). If the deceased person does not have heirs, the court assigns a judicial executor if deemed necessary.

(7). The creditor of the deceased person and other persons of interest can demand their [payment of] debts and portions from the executor or heirs, and or judicial executor.

Requirements for the Inheritance

Article 212:

(1). Requirements for Inheritance are as following:

1. Natural or legal (hukmi) death of the decedent

2. The heir must be alive

3. Existence of estate

(2). A fetus shall be considered an heir, provided that he/she is born alive.

(3). If a deceased person’s sperm is combined with a woman’s egg after his/her death, the child who is born as a result, is not entitled to inheritance.

(4). If after dividing of the estate, the woman [heir] appears pregnant, the fetus’ portion [of the inheritance] shall be restored from the rest of the heirs’ portions in accordance to the provisions of this law.

(5). If the fetus disinherits other relatives from the deceased person’s estate, in such instance if the executor is not appointed by the deceased until the fetus is born, the court assigns a trustee for the estate. If the fetus disinherits some of the heirs [not all] the portions of other inheritors who will not be disinherited shall be given.

(6). If the fetus does not disinherit the heirs, his/her portion shall be separated based on its [fetus] sex and number. If the determination of the sex and number is impossible, the fetus’ portion shall be separated equally in proportion to two male children from the estate.

(7). If the portion allocated to the fetus is less than what the fetus is entitled, its deficiency is recovered from the portions of the remaining heirs. If the allocated portion is more than what the fetus deserves [i.e., female or twins]or if the fetus was born dead, or if the fetus’ death cannot be determined, in this case the estate shall be distributed proportionally to each heir’s portion.

(8). If two or more persons die, burn, drown or are torn by animals, and/or if a building collapses upon them at the same time, they do not receive inheritance from each other; rather, their heirs receive inheritance from them.

(9). If the time of the death of persons who are inheriting from each other is unknown, or the date of their death is doubtful, in this case they do not inherit from each other, unless they die as a result of drowning or the falling of a building upon them. Presuming that one person was deceased prior to the other, he/she inherits from the other. However, the inheritance proportion arising from the presumed death of each of the persons is not inheritable to each other.

(10). If a person is considered dead because of mistake of experts or relatives or a court order, and his/ her property is distributed, and later it appears that he/she is alive, any acts done to his/her property and financial rights shall be considered invalid. The distributed estate shall be returned in its original form. In case of damage, the same object or one similar to it with the same value shall be returned and if the asset [animal] is disabled/injured the person shall be compensated for the damage according to the provisions of this law.

(11). If a hermaphrodite person’s sexuality is medically proved to be male or female, his/her portion of inheritance shall be specified according to the provisions of this law. Otherwise his/her sexuality shall be determined by Islamic jurisprudential evidence.

(12). If the sexuality of the person is unknown and there is no way to distinguish [whether the person is male or female], then the person is entitled to half of the share of a male or a female relative who is of the same rank. However, if the sexuality of the person is impossible to know or if the person’s sexual organs are completely mutilated by drowning, burning or other incidents, the person’s sexuality should be specified through drawing lots.

Estate Without Heir

Article 213:

The estate of a deceased person who does not have heirs will be used under the supervision of a spiritual leader after payment of his loans and dues.

Hajb (Disinheritance)

Article 214:

Disinheritance means when some relatives deprive other relatives from inheritance either completely (which is called Hajb Hirmani), or partially (which is called Hajb Noqsani).

Hajeb Hirmani [the person who can cause complete disinheritance to others]

Article 215:

The foremost degree in any class deprives [of inheritance] the later degree of the same class and the following classes. The following are excluded from this provision:

  1. First class [category]: the children of children from the second degree and below, substitute their parents, and shall receive their share of the inheritance even if the parents of the deceased person are alive. And foremost degrees of descendents deprive the later degrees of the children from inheritance.
  2. Second class [category]: the children of the deceased’s brother and of the deceased’s sister and below replace their mother and father and shall receive their portion of inheritance even if the grandparents of the deceased are alive, and the foremost degrees of the children of a brother and a sister deprive the later degrees from inheritance.
  3. Third class [category]: The father and mother of the ancestors replace the ancestors.
  4. Fourth class [category]: The children of uncles (father’s brother and mother’s brother) replace them [the uncles].
  5. Fifth class [category]: The son of an [who is related to both the father and the mother of father] deprives the paternal uncle from inheritance, provided that the deceased person has only two heirs [the abovementioned relatives]. If the paternal uncle and the paternal and the maternal cousins are more than one [person], or the husband or the wife of the deceased is alive, a negotiation shall take place between the uncle and the cousin.

Hajeb Noqsani (Partial Disinheritor)

Article 216:

A partial disinheritor is:

  1. Children or the descendents of the children of the deceased [partially] exclude the parents of the deceased from [their entitlement] of two thirds and one thirds respectively to one sixth each.
  2. Children or the descendents of the children of the deceased [partially] exclude the husband of the deceased from one half [of his entitlement] to one fourth, and the wife of the deceased will be excluded [partially] from one fourth [of her entitlement]to one eight.
  3. Two brothers or one brother with two sisters, or four full sisters or four paternal sisters of the deceased who are Muslims and are born [not a fetus], and their father is alive and they are not disinherited, will cause the reduction of the deceased’s mother’s share from one third [of her entitlement] to one sixth. The remaining estate shall not be distributed to the mother of the deceased. For example, if the deceased has a daughter in addition to his/her parents, each parent shall get one sixth and the daughter shall get half [of the estate], and the remainder of the estate shall be redistributed, one fourth to the father and one fourth to the daughter.

Heirs Based on Genealogy

Article 217:

Classification of heirs by parentage is as follows:

  1. First class [category]: father and mother, children and children’s children and their descendants [of the deceased].
  2. Second class [category]: grandfather and grandmother and above, brother and sister of the deceased and their children and their descendants.
  3. Third class [category]: uncles (father’s brothers), aunts (father’s sisters), uncles (mother’s brothers) and aunts (mother’s sisters), and uncles and aunts [paternal and maternal] of the parents and ancestors of the deceased and their children.

Inheritance Based on Farz (fixed share) and on Relationship

Article 218:

(1). Inheritance of some heirs is either determined by fixed share or by relationship, and inheritance of some heirs is sometimes determined by relationship, and sometimes by fixed share.

(2). Farz or fixed share is a specified proportion of the estate such as half, one third, one fourth, one eight, two third and one sixth as determined by the Quran.

Inheritance Based on Fixed Share

Article 219:

Inheritance share of those entitled to fixed share is as follows:

  1. Mother is entitled to one third of the estate if the deceased has no children, and if there is no disinheritor, and if the deceased has children the mother is entitled to one sixth. If after the distribution, based on fixed share, if there is any estate remaining, then the remaining [estate] shall be redistributed.
  2. Wife is entitled to one fourth if the deceased has no children, and one eight if he [deceased] has children.
  3. Husband is entitled to one half if the deceased has no children, and one fourth if the deceased has children. And if the deceased has no other heirs, except the Imam (spiritual leader), the remaining shall be given to the husband.
  4. Maternal grandparents, whether together or alone, are entitled to one third of the estate and the maternal brothers and sisters are entitled to one sixth [if only one sister or one brother], and one third if there are more than one.
  5. Maternal uncles and their children are entitled to one third of the estate whether they are alone or more than one.

Inheritors by Fixed Share and by Relationship

Article 220:

The following persons sometimes inherit by relationship and sometimes by fixed share:

  1. Father of the deceased, if the deceased has no children left behind, father shall inherit by relationship, otherwise he shall inherit one sixth of the estate by fixed share.
  2. Daughter of the deceased, if she is the only heir she will receive one half [of the estate] by fixed share, and if there is a male child, she will inherit by relationship.
  3. Two or more daughters, if they are the only heirs, they will receive two thirds by fixed share, and if there are male children with them they will inherit by relationship.
  4. A full sister or a paternal sister who is the only inheritor will receive one half [of the estate] by fixed share, and if she is with a full or paternal brother [and no sister] she will inherit by relationship.
  5. Two or more full sisters, if they are the only heirs, they will receive two thirds by fixed share, and if they have full brother(s) or paternal brother(s), they [the sisters] shall inherit by relationship.
  6. Maternal sisters and brothers in the absence of grandfather shall inherit one third by fixed share, and in if there is a grandfather shall inherit by relationship, and the estate shall be distributed among them equally.

Inheritance by Relationship

Article 221:

Relatives who always inherit by a relationship are as follows: 1. Male children in the first class.

2. Paternal grandfather and grandmother and above, also full brothers, and their children and below in the second class.

3. Paternal and maternal uncles and aunts, paternal uncles and aunts and maternal uncles and aunts and their children and below.

Inheritance of the First Class [category]

Article 222:

(1). Parents and children of the deceased from the first class are first degree, and children of the children and downward are the second class; likewise every descending class is considered one degree.

(2). If heirs of the deceased from the first class are confined to the father and mother, mother shall inherit one third of the fixed share, and in the existence of a disinheritor, shall receive one sixth, and the rest shall go to the father.

(3). If heirs of the deceased from the first class are only the parents, they[parents] shall inherit the entire estate based on their relationship, and the mother shall receive one third, and in the existence of a disinheritor the mother shall receive one sixth by fixed share and shall inherit the rest accordingly [redistribution].

(4). If heirs of the deceased from the first class are the parents and the surviving spouse, the surviving husband shall inherit one half, the surviving wife one fourth and the mother, if an disinheritor does not exist, one third, and if an disinheritor exists, the mother shall inherit one sixth, and the rest shall go to the father based on relationship.

(5). If the heirs of the deceased from the first class are confined to children, and there are one or more sons, the estate shall be distributed equally among them according to their relationship.

(6). If heirs of the deceased from the first class are confined to children, and there is [only] one daughter, she shall receive half of the estate by fixed share, and the rest will be given to her accordingly to rad [by redistribution].

(7). If heirs of the deceased from the first class are confined to children, or there are two or more daughters, they will receive two thirds, divided equally, by fixed share, and the rest [of the estate] shall be distributed to them equally according to their relationship.

(8). If heirs of the deceased from the first class are confined to children, male and female, the entire estate shall be distributed among them based on the principal of one man equals two women.

(9). If heirs of the deceased from the first class are confined to children, children of children and below each generation will receive the share of the person through whom they are related to the deceased, and if they are male and female the estate shall be distributed [among them] based on the principal of one man equals two women, and each following generation will be deprived [of the inheritance] by the prior generation.

(10). If heirs of the deceased from the first class are father, mother and one daughter, one sixth of the estate shall go to the father or the mother by fixed share, and one half shall go to the daughter by fixed share, and one fourth of the remaining estate shall go to the father or mother if there is no disinheritor, and three fourths will go to the daughter based on redistribution.

(11). If heirs of the deceased from the first class are mother and father with [only] one daughter, parents are entitled to two sixths of the estate equally, and one half shall go to the daughter by fixed share, and one fifth of the rest shall go to the father, and one fifth to the mother; and if there is no disinheritor three fifths shall go to the daughter.

(12). If heirs of the deceased from the first class are mother and father with more daughters, two sixths of the estate shall be given to the parents equally, and two thirds shall be given to daughters by fixed share.

(13). If heirs of the deceased from the first class are mother and father or one of them with one son or more than one son, or at least one son and one daughter, each of the parents receives one sixth of the estate, and the remaining estate shall be distributed among the children of the deceased based on the principal of one man equals two women.

(14). If heirs of the deceased from the first class are parents, children and husband or wife, husband receives one forth by fixed share, and wife receives one eighth by fixed share. Each parent shall receive one sixth by fixed share, and if there is only one daughter she [the daughter] receives half [of the estate], and if there is more than one daughter they receive two third of the estate, and if there are one daughter and one son the remainder of the estate shall be distributed among them based on the principal of one man equals two women.

Share of Inheritance that Exceeds the Estate

Article 223:

If the inheritance by fixed share (Saheban-e-Farz or the inheritors who are entitled to fixed share) is more than the estate of the deceased, the amount of deficit shall be recovered from the share of the daughter or daughters [for example:]

  1. In presence of husband with father or mother and two or more daughters, or their children (one forth + one sixth + two thirds = thirteen twelfths).
  2. In presence of parents and husband and one daughter or her children (two sixths + one forth + one half = thirteen twelfths).
  3. In presence of wife and parents and two or more daughters or their children (one eighth + two sixths + two thirds = twenty seven twenty fourths).
  4. In presence of parents and husband and two or more daughters (two sixths + one forth + two thirds = fifteen twelfths).

Inheritance of the Second Class [category]

Article 224:

(1). Grandfather, grandmother, brother and sister of the deceased from the second category are first degree, and parents of the grandfather and grandmother and brother and sister progeny are second degree, any ascending generation in ancestors and descending generation in sister and brother, are to be counted at the same degree.

(2). Paternal brothers and sisters, including brothers and sisters [from the same parents], and paternal sister and brother progeny including brothers and sisters [from the same parents], are deprived of inheritance.

(3). If the heirs of the deceased are the maternal grandfather and grandmother, and or any one of them, they shall get one third of the estate by farz, and the remaining will be redistributed to them equally.

(4). If the heirs of the deceased are the paternal grandfather and grandmother, and or any one of them, they receive the whole estate by relationship, and in case there are more than one, they will receive according to the principle of one man equals two women.

(5). If the heirs of the deceased are paternal grandfather and grandmother and sister of the same parents, or paternal sister and maternal grandfather and grandmother, one third of the estate is given to the maternal grandfather and grandmother equally based on farz, and the remainder is divided to paternal grandfather and grandmother by relationship and the paternal sister of the same parents or paternal sister may inherit according to principle of one man equals two women.

(6). If the heirs of the deceased are paternal grandfather and grandmother, and paternal brother and sister of the same parents, or paternal or one maternal brother or sister, one sixth of the estate is given to the maternal brother or sister by farz and the remainder is divided among the other heirs according to the principle that one man equals two women.

(7). If the heirs of the deceased are maternal grandfather, grandmother, sister and brother, and one sister of the same parents, one third of the estate is given to the maternal relatives by farz, and half of the estate is given to the sister of the same parents or paternal sister by farz, and the remainder is redistributed to the sister from the same father or from the same parents.

(8). If the heirs of the deceased are one or more brothers of the same parents, and or one or more paternal brothers, and or, one or more maternal brothers, they will receive the entire estate equally according to relationship.

(9). If the heirs of the deceased are one sister of the same parents and or one paternal sister, and or one maternal sister, they will receive one half of the estate by farz, but if there are more than one sisters of the same parents and or more than one paternal sister, and or more maternal sisters, they shall receive two thirds of the estate by farz and the remainder will be redistributed to them.

(10). If the heirs of the deceased are one or more brothers and sisters of the same parents, and or one or more paternal brothers and sisters, and or one or more maternal brothers and sisters, the two first categories shall receive the whole estate according to the principle that one man equals two women; and the third category (maternal brothers and sisters) shall inherit equally.

(11). If the heirs of the deceased are one brother and sister of the same parents or paternal brother and sister, and or one maternal brother and sister, one third of the estate shall be divided equally between the maternal brother and sister, and two thirds of the estate shall be given to brother and sister from the same parents or the paternal brother and sister.

(12). If the heirs of the deceased are two or more brothers and sisters from the same parents or two or more paternal sisters and brothers, or two or more maternal brothers or sisters, one third of the estate shall be given to the maternal brother and sister equally by farz, and two thirds of the estate shall be divided between the brother and sisters from the same parents, or the paternal brother and sister according to the principle one man equals two women.

(13). If the heirs of the deceased are a wife and two or more sisters and brothers of the same parents, and a maternal brother and sister, one fourth of the estate shall be given to the wife by farz, and one third shall be given to the maternal brother and sister, and the remainder [2/3] shall be given to the brother and sister of the same parents.

(14). If the heirs of the deceased are a husband and two or more sisters of the same parents or paternal sister(s), and two or more maternal brothers and sisters, one half of the estate is given to the husband by farz, one third to maternal brothers and sisters by farz, and the remainder of the estate instead of two thirds, shall be given to brothers and sisters of the same parents or paternal brothers and sisters by farz.

(15). If the deceased does not have any brothers and sisters, their children take in their place considering that the degree in each generation deprives the more distant degree in each generation of inheritance. Also if the deceased does not have a grandfather and grandmother, the grandfather and grandmother of the parents shall substitute for them.

(16). If the existence of a husband and a wife among the heirs of the second category of the relationship causes a deficiency in the estate, then the amount of the deficiency is recovered from the portion given to the brothers and sister of the same parents or the paternal brothers and sister, or the paternal grandfather.

Share of Inheritance of the Third Category of the Relatives

Article 225:

(1). If the heir of the deceased is in the third category of relationship to the deceased, the inheritance is given to the father’s brothers and sisters and the mother’s brothers and sisters. In their absence, the inheritance is given to their children in descending order. In the absence of their children in descending order, the inheritance is given to the deceased parents’ father’s brothers and sisters. In their absence, the inheritance is given to their children in descending order, and then to the deceased’s next generation uncles and aunts (from both father’s and mother’s side) and their children.

(2). Paternal and maternal uncles in the existence of uncles of the same parents, and the children of paternal uncles in the existence of the children of uncles of the same parents in consideration of the degree of relationship do not inherit.

(3). When the heir of the deceased is one uncle or one aunt, and or one uncle and one aunt together, and or several uncles and several aunts, all of whom are either from the same parents or paternal or maternal, the entire inheritance is given to them in consideration of their degree of relationship.

(4). When the heirs of the deceased are uncles of the same parents or paternal uncles, one sixth of the inheritance is given to the maternal uncle if there is just one, and one third is given to maternal uncles equally, in case there is more than one. The remaining portion is given to uncles of the same parents or paternal uncle according to the principle of one man equals two women.

(5). Children of paternal uncles and maternal aunts may receive a portion of the inheritance according to their degree of relationship to the deceased.

(6). When the heir of the deceased is one uncle (mother’s brother) or one aunt (mother’s sister) or together maternal uncle and aunt, or several maternal uncles and aunts, one third of the inheritance is given to them by farz, and the remainder is redistributed equally between males and females.

(7). When the heir of the deceased is one maternal uncle or uncle of the same parents, or aunt of the same parents, or paternal sister, and or maternal uncles and aunts, the maternal uncle and aunt shall receive one sixth of the inheritance if there is only one. If there are more than one, they receive one third of the inheritance in equal portions, and the remainder is given to the uncle [mother’s brother] or aunt [mother’s sister] of the same parents or paternal uncle and aunt in equal portions.

(8). When the heir of the deceased is one uncle (mother’s brother) or one aunt (mother’s sister) along with one uncle (father’s brother), or one aunt (father’s sister), even if they are from the same parents or paternal or maternal, one third of the inheritance is given to the mother’s brother and sister by farz, and the remainder is given to the father’s brother or sister in consideration of the degree of relationship.

(9). When the heir of the deceased is the uncle [father’s brother]and aunt [father’s sister] of the same parents, or paternal uncle and aunt or a maternal uncle and aunt and or one uncle (mother’s brother) and one aunt (mother’s sister), one third of the inheritance is given to the mother’s brother and sister by farz, and the remaining is given to the father’s brother and sister in consideration of the degree of relationship, even if they are of the same parents or paternal or maternal uncle and aunt.

(10). When the heirs of the deceased are an uncle (mother’s brother) and aunt (mother’s sister), from the same father, or uncle and aunt of the same parents, maternal uncle and aunt and if there is one uncle [father’s brother] and aunt [father’s sister], one third shall be given to the mother’s brother and sister equally, and remainder is given equally to the father’s brother and sister in consideration of the degree of relationship, even if they are of the same parents or they are paternal or maternal uncles and aunts.

(11). When the heirs of the deceased are uncles (father’s brother and mother’s brother of the deceased’s parents), or the uncles (father’s brother and mother’s brother of grandparents), or their children, one third of the inheritance is given to the mother’s uncles and aunts and their children by farz, and the remainder is given to the father’s uncles and aunts or the father’s parents or their children in consideration of the degree of relationship.

(12). From the total share of the deceased mother’s uncles and aunts or the deceased mother’s parents or their children, one third is given to the aunts or their children, and the remainder is given to the uncles or their children.

(13). From the total share of uncles (father’s brothers), one sixth of the inheritance is given to the maternal uncles if there is only one uncle, but in case there is more than one, one third of the inheritance is given to both males and females equally, and the remainder share of the children of the same parents or paternal uncles is given to males and females equally.

(14). From the total share of paternal uncles (deceased father’s brothers) and aunts (deceased mother’s sisters), and deceased father’s parents and their children, one third of the inheritance is the share of aunts and their children.

(15). From the total share of father’s uncles (father’s mother’s brothers) and father’s parents of the deceased, one sixth, if there is only one uncle, and one third if there is more than one, are given to maternal aunts, and the remainder will be given to uncles of the same parents equally.

Causal (Relatives by Marriage) Heirs

Article 226:

(1). A married couple, based on the marital relationship and according to the provisions of this law, has the right to inherit from all levels and degrees of each level during the period of the permanent marriage contract.

(2). The wife and husband in a marriage inherit from each other during the edat of revocable divorce.

(3). If the permanent marriage is established at a time when the husband is ill, and the same illness causes his death, or if the wife dies during the same period, and no sexual penetration has occurred, they do not inherit from each other and the wife is not entitled to Mahr, however if sexual penetration has occurred then the wife inherits from her husband and also is entitled to Mahr.

(4). When a husband divorces his wife while he is sick and he dies from that sickness, if the death of the husband occurs before the expiration of one year from the divorce date (revocable or irrevocable), and the wife has not remarried, she inherits from the husband. However, if the death of the husband occurs one minute after the expiration of one year from the divorce, the wife does not inherit. But, if the wife has requested the divorce and the divorce is Khola, and or if the divorce is with the consent of both parties, and or the wife remarries, then the wife and the heir negotiate about the amount of inheritance.

(5). If an ill husband divorces his wife and the wife dies during the revocable divorce period, then the husband inherits from the wife. If the wife [dies while she] is not in the edat of a revocable divorce, the husband does not inherit from the wife.

(6). The husband inherits half of the share of a childless wife, and the wife inherits one fourth of the share of a childless husband. If there is no other heir except for the imam [religious clergy], the husband inherits half of the inheritance of the fixed share of an heir, and the other half of the inheritance is redistributed, and the wife inherits one fourth of the current share. The remainder is given to the imam and may be spent by Mujtahed.

(7). The husband inherits from all moveable and immovable assets of his wife; however, the wife inherits from the moveable assets of her husband, and she does not inherit from the land and its proceeds, whether it is empty land [undeveloped], or land with buildings or trees on it or if it is used for agriculture [developed]; however, she inherits from the buildings, trees and other fixed assets on the land, and the heir of the husband can give the value of her portion to her.

(8). The wife inherits from the actual water of wells and other irrigation systems.

Barriers to Inheritance

Article 227:

Barriers to inheritance mean a quality in an heir that causes him or her to be deprived from inheriting, despite the existence of the inheritance components (genealogy or marital relationship).

Consequence of Murder in Inheritance

Article 228:

(1). Murder bars the murderer from inheriting from the murdered person provided that:

  1. The murder is deliberate when a person orders an insane or minor child to murder someone; however if a person induces a sane and free [not under duress] person, the one who gives the order is not considered the murderer. In an unintentional homicide, the murderer inherits except from the dia (blood money or compensation to victim), but the dia must be negotiated between the heir and the murderer.
  2. The murderer must not be a minor, under seven years of age, or insane.
  3. The murder must not be in accordance with provision of Sharia, or for self defense or defense of property, or honor.

(2). The murderer does not become an disinheritor; for instance, if someone kills his/her father, and there is no other heir, the son of the murderer inherits from his grandfather’s inheritance.

(3). If a mother aborts her fetus, she must pay its dia, according to the provisions of Sharia, to the heir of the fetus and she does not have any right to dia either; if the father makes her abort, then the dia goes to the mother.

(4). Direct or indirect (hiring another person to commit the murder) murder, whether individual or collective, is a barrier to inheritance.

Consequences of Blasphemy in Inheritance

Article 229:

(1). A Muslim inherits from a non-Muslim; and in the instance of a Muslim heir a non- Muslim does not inherit from a non-Muslim. However, if there is no Muslim heir, then the non-Muslim can inherit from another non-Muslim.

(2). Relatives of a non-Muslim whether Mortad ( by birth) or Meli [a person whose parents were not Muslims during his/her birth and after becoming an adult accepted the Islamic faith and subsequently became a non-Muslim], shall not inherit from a Muslim unless they become Muslim before distribution of the inheritance; however, if they become Muslim during or after the inheritance is distributed, they do not inherit. If the heir is a non-Muslim, and even if he/she becomes Muslim after the death of the decedent he/she does not inherit; however, the wife can inherit if she becomes a Muslim after the death of her husband, and she inherits one fourth of the estate provided that there is no heir except for the imam.

(3). An illegitimate child and his/her adulterous father and relatives do not inherit from each other. An illegitimate child and his wife and their children do inherit from each other.

(4). Sworn maledictions which result in negation of parentage according to the provision of this law, bars inheritance between the child and father, and his/her relatives through the father, if the father confesses his/her affiliations after the sworn malediction, he/she inherits from the father. Between the mother and the same son/daughter and between the son/daughter and his/her relatives through the mother, inheritance is valid.

(5). Between children born under false claim of adultery and their parents, inheritance is valid.

(6). Between children born as a result of artificial insemination and owners of the semen inheritance is valid.

Inheritance Based on the Principle of Lezakar Masal Hazul’esneen(one man equals two women)

Article 230:

The following heirs deserve inheritance based on the above principle:

1. First level, the children of the deceased and their children as the generation continues downwards.

2. If father and mother are the only heirs. If the deceased has no children, his father receives two thirds, and his mother in case of lack of excluder takes one third.

3. Second level, father’s forefathers and brothers and sisters related through parents and father and their children as the generation continues downwards.

Equality of Inheritance

Article 231:

The following heirs inherit equally whether they are male or female:

  1. Father and mother of the deceased receive one sixth each.
  2. Second level, forefathers and maternal brothers and sisters and their children as the generation continues downwards.
  3. Third level, uncles and aunts related through the mother and their children as the generation continues downwards.

Redistribution of Remainder of Estate

Article 232:

In cases where the inheritance is more than the fixed shares of the heirs, the extra portion is redistributed proportional to the fixed portion of each, except for the wife and the husband provided that there are genealogical heirs and the mother has a disinheritor.

Representation in Inheritance

Article 233:

Those heirs that inherit because of representation must be eligible as follows:

  1. The representing heir must be closest to the deceased so that he/she is the closest generation without intermediation to the deceased.
  2. The representing heir must not be deprived of the inheritance.
  3. A person from the generation of the deceased without an intermediation to the deceased.
  4. The generation which inherits because of his representation must not be deprived of the inheritance. If the deceased child is a non-Muslim, his Muslim son can inherit from his grandfather.
  5. The generation which inherits from his representation must not have died before the deceased.

The Deceased’s Dia

Article 234:

(1). Dia of the deceased, no matter for what reason, is the same as the inheritance of the deceased which is given to the heirs after the debt is paid, and will is prepared; however, relatives through the mother such as brothers and sisters, aunts and uncles and maternal forefathers of the deceased do not inherit from dia.

(2). If the person who is murdered does not have any heir except for the imam, the deputy imam has the right to ask for the retaliation or take dia if the murderer agrees. If the murderer does not agree to pay the dia, the deputy imam has only the right to retaliate.

(3). If a crime or violation occurs to a deceased’s corpse after his/her death, the dia for this crime is not given to the heirs, but is used to pay the deceased’s debts or will be used for charitable activities on behalf of the deceased.

Personal Items to the Eldest Son

Article 235:

The deceased’s clothing, ring, Quran and sword are given to his eldest son, and other heirs do not have any right to them, only if the deceased’s debt is equal to the inheritance, or the deceased has left instructions for those items. If the deceased has let instructions regarding one third of the inheritance, one third of the estate (including the personal items to the eldest son) are excluded. If instead of a sword there are one or two guns, distribution of those items must be negotiated between the eldest son and the rest of the heirs. If there are two eldest sons [if two wives give birth at the same], the personal items are shared between them; eldest means the one who has been born first, not the one who had been conceived first.

Liability in Inheritance (based on friendship)

Article 236:

In liability of an inheritance, the guarantor of the payment of dia takes precedence over the imam. If a person promises someone else to pay the dia of all crimes [the other person commits] and in return will inherit after his death, the commitment is valid, and the guarantor is his legal heir; but this agreement is valid only if the deceased does not have any other heir. If the guarantor is the husband or the wife of the deceased, he or she will be entitled to the maximum share which means the husband will receive one half and the wife will receive one fourth of the inheritance.

Distribution of Inheritance of a Missing Person

Article 237:

If research is conducted for four years to find a missing person, and his being alive is not clarified, the heir can distribute his inheritance based on the provisions of this; if the person is missing for ten years, the heir can divide his inheritance without doing any research.

CHAPTER THREE: ENDOWMENTS AND PROFITS THEREFROM

Definition of Endowment

Article 238:

Endowment is defined as a corpus of property and the positive use of its profits under the management of a designated legal representative.

Elements of Endowment

Article 239:

The elements of Endowment consist of the following:

  1. Endower: a person who endows his property.
  2. Recipient: a person who is the beneficiary of the profits from the management of the endower’s property.
  3. Substance of endowment: the property which is endowed.
  4. Trustee of the Endowment: a person or institution which has the legal authority to manage the endowment.

Types of Receivers of Endowment

Article 240:

Recipients of endowment are of two types:

  1. Public Endowment: property dedicated for the public welfare such as schools or those who are not prohibited from receiving endowment, such as students.
  2. Private Endowment: property dedicated to the welfare for particular causes or individuals, such as children.
Conditions of Endowment

Article 241:

(1). Endowment is an absolute offer, by word or action, which indicates the intention of the endower and receiving of endowment by the first degree of recipients, or their guardians before the death of the owner or his/her withdrawal of the offer. However, if endowment is conditional on anything even if the item has been received it is invalid, unless the validity of the endowment is dependent on the condition.

(2). Public endowment is accepted by Marja Taqleed of Shias in Afghanistan, or the representative of that authority, or the executor; a private endowment is accepted by the receivers of the endowment. Moreover, if the endowment is used for public purposes, only using the item in a public way is sufficient to be considered accepted, such as praying in the mosque and burial in the cemetery.

(3). Lack of acceptance or rejection of the endowment by an earlier generation does not deprive the latter generation from the endowment.

(4). The endower must be the owner of the endowed property and must have the competency to financially manage the property. A male child who is at least ten years of age can make a will with an endowment of property.

(5). The identity of the recipient of an endowment must be known, and in private endowment the recipient must be alive, however, the dependents of the recipient are exceptions to this condition. For example if the endower says “I give this land to my children and thereafter to their children.”

(6). Endowment during pregnancy to an unknown and unborn child is invalid.

Conditions of Property of Endowment

Article 242:

(1). A property eligible for endowment should meet the following conditions:

  1. It should be the actual property [not its value]; endowment of a debt or an unspecified endowment such as a shop or the profits from anything is invalid.
  2. Profiting from endowment or the continued existence of the actual endowment should be possible and legal. Thus, if taking benefits from the actual property in not possible without destroying it, and or profiting from the actual property is illegal in Islam, then the endowment is invalid.
  3. The endowed property must be owned by the endower.
  4. Withdrawal and release of the property must be possible in the future.
  5. The purpose of the endowment must be legal; therefore, an endowment for illegal purpose is invalid.

(2). Anything that according to customs and tradition is considered part or a component of the endowment shall be included in the endowed property.

(3). The trustee, who manages the endowment, and the purpose of the endower must be legal.

(4). The endower can set a precondition so that if the endowed property is needed by the endower later, it must be returned to him/her. A condition which is contrary to the requirements of the contract or a condition which is illegal invalidates the endowment.

Managing the Endowment

Article 243:

(1). The endowment is a legal person and the trustee is its lawful representative.

(2). The endower can individually or jointly appoint himself or someone else as his/her trustee to manage the endowment.

(3). The endowment trustee has the competency to manage the property and its financial benefits, and can resign from being a trustee after he has accepted the responsibility.

(4). If the endower does not appoint a trustee in a private endowment, the recipient of the endowment has the position of trustee; but if they disagree on the management of the endowment, then representative of the Shiite Marja Taqleed, can appoint a receiver or a third person as a trustee.

(5). If the endower in a public endowment or private endowment has not appointed a trustee, not because of cost but because of giving possession, the Shiite Marja Taqleed or his deputy will assign a trustee.

(6). The endower or the Shiite Marja Taqleed cannot remove the trustee once he is assigned, but may do so only according to the terms and conditions of the endowment contract.

(7). The supervisor and trustee are trustworthy, but they are not the guarantors of anything except that arising from their misuse or waste. If the supervisor and/or trustee are due a fee according to the endowment, they can withdraw an amount equal to the fee from the profits of the endowed property with authorization from the court; but if the contract shows that the endower has intended the trustee to serve without remuneration, there is no fee.

(8). The trustee cannot transfer his position to someone else during his/her life or after his/her death; except if he has such permission from the endower.

(9). If the trustee’s supervision is not provided for in the contract of the endowment, the trustee can hire a representative to manage the endowment.

(10). An endowment made for an unknown use may be used for reasonable purposes, either according to the endower or based on the opinion of the Shiite Marja Taqleed.

(11). Extra income from endowment will be spent in consultation with the endower to the extent possible, or based on the opinion of the Shiite Marja Taqleed.

Duties of the Endowment’s Trustee

Article 244:

The duties of the endowment’s trustee are:

1. Registration of the endowed property in governmental centers as soon as possible.

2. Maintenance and positive management of profits from the endowed property.
3. Payment of taxes and other government requirements and supervision fee if they are entitled to it.
4. Filing a legal case against those who have illegally occupied or misused the endowment.
5. Maintenance of the endowed property from destruction, spoilage, breaking, as well as, its repair and refurbishment as necessary.
6.Spending of the endowment’s profits based on the endowment contract.Trustee and Supervision Fees

Article 245:

(1). The fees of trustee and supervisor and other necessary costs of the endowment take priority over the charges of the person given the endowment, unless the endower has stated otherwise. If the endowed property is about to be wasted and may not remain for future generations, then it is obligatory to rehabilitate it even if the current generation is deprived of its profits.

(2). If the endowment is not capable of generating profits, the trustee can give it on lease and can use its profit to the intended purposes. But if lease is not possible, the trustee can sell part of the endowment and use the profits on the remaining part to build its capacity, in order to make profit. Otherwise, he can exchange it for another property on which profit is possible. If exchange is not possible, he can sell the endowment and direct the profits of the sale to the purpose for which the endowment was dedicated.

(3). The fee for trustee and supervisor is paid in accordance with the terms of the endowment contract. If no allocation is made in the contract, the trustee is paid a reasonable amount for his/her work.

Removal of Supervisor and Trustee

Article 246:

(1). The supervisor and trustee are removed for the following reasons:

1. Lack of qualification mentioned for each of them;

2. Proof of betrayal;

3. Lack of capacity to manage the endowment;

4. Resignation;

5. Proof of violation, waste or negligence in performance.

(2). If based on sections (1, 2 and 3) of this article’s section (1) another person is assigned by the Shiite Mujtahed (to work with them); the trustee and supervisor assigned by the endower will not be removed.

(3). If a mosque is destroyed, its premises will not be changed from being a mosque and will stay a mosque forever, but if the benefit considered for the ones this mosque has been endowed for vanishes, and there is no use as a mosque anymore, the endowment is declared invalid and it returns to the possession of its owner or his heir.

Termination of Endowment

Article 247:

Endowment is terminated as soon as its legal existence or its endowed property vanishes.

Complete Use of Profits

Article 248:

(1). The right to receive benefits is an agreement under which the owner who is competent transfers financial benefits to another person.

(2). The right to receive benefits is based on an offer by the owner by word or action, and acceptance or receipt of the profits by the receiver or his/her representative.

(3). The right to receive benefits based on limitation is as follows:

  1. Right to receive benefits for lifetime: profit of the property for the life of the owner, or the life of the recipient or a third person’s lifetime.
  2. Right to receive benefits for a prescribed period: profit of the property for a determined duration, such as ten years or more or less.
  3. Right to receive benefits based on residency: profit for the period of residency whether based on age or prescribed periods.

(4). If the right to receive benefits is based on the lifetime of the receiver or third person, it does not terminate by the owner’s death or his withdrawal, but if the right to receive benefits is based on the owner’s or third person’s lifetime, and the receiver dies, then the right to profit transfers to the heir of the receiver until the owner and third person die.

(5). The method of profiting from the property is based on what the owner determines; if the receiver acted against the owner’s determination, or violated or wasted it, he will be responsible to compensate for the losses.

(6). The costs of facilitation of the profits and maintenance of the property is the responsibility of the owner, but customary costs are the responsibility of the receiver, unless the owner has accepted them [the cost].

(7). The owner can restrict the use of his property based on any reason that is allowed in the endowment; in this case the property that has been withheld shall remain in the owner’s possession; but if the owner has intended the withholding for the sake of Allah and the withholding is permanent, he cannot invalidate the withholding, but if the withholding is subject to a time limitation, he cannot withdraw the property prior to that time. For example, if he says my car will be at the disposal of orphans or students for ten years just for the sake of Allah, he must be accountable for that. But if the withholder dies before ten years, the mentioned property will be transferred to his heirs after ten years. If there is no time period mentioned then the withholder can invalidate the endowment any time he wishes. This provision is also applicable for a lifetime endowment, prescribed time period, and the right to benefit from the living in a residence, and even if the withholding is not for the sake of Allah, the withholding can be terminated.

CHAPTER FOUR: GIFTS

Definition and Components

Article 249:

(1). A grant is an agreement on the basis of which the ownership title of a property is transferred to another person by the owner as a gift.

(2). The components of such an agreement are:

1. Granting party: the person who owns the property and transfers the ownership of the gifted property at will.

2. Granted party: the person who takes ownership of the gifted property.

3. Granted property: the gifted property.

Conditions under Which Grant is Valid

Article 250:

(1). A grant occurs when the granting party offers the grant verbally or by his/her actions and the granted party of his/her representative accepts or receives the granted property by word or action. If the representative happens to be the granting party or the granted property is with the granted party, the grant is automatically approved.

(2). To be considered approved, the grant must happen immediately and not be conditioned on anything, unless the condition is part of the validity of the grant.

(3). The granting party is entitled to impose a condition on the granted party, such as declaration of a statement, performance of an action, or sale of a property in return for the grant.

(4). After reaching the agreement, the granting party can delay the transfer of the granted property. Permission of the granting party is necessary for the granted party to take possession of the property. Without the granting party’s permission the granted party cannot take physical possession of the property simply because the grant agreement is reached, unless the granted party has been given new permission to take possession of the property by the granting party.

(5). The granting party must have legal ownership of the property that is being granted; and must be legally competent to financially manage the property

(6). Acceptance of a granted property can happen before the death of the granting party or his/her withdrawal of the agreement.

(7). Death, denial, or exile of the granting party after reaching the agreement, and death of granted party before accepting the grant, shall terminate the agreement. Death of either party before the physical handover of the granted property shall terminate the agreement.

Conditions of the Granted Property

Article 251:

(1). The granted property shall have the following characteristics:

1. Must exist or potentially exist.
2. Must have value.
3. Can be possessed legally. Granting alcoholic beverages and pork is not legal for a Muslim, even if the granting party is a non- Muslim.

(2). If the granted property is commonly owned, the permission of all other owners is necessary.

Revocation of Grant Agreement

Article 252:

(1). The granting party can revoke the grant agreement at any time as long as the property exists.

(2). The profits from the Noma-e-Mofasel (a profit separate from the actual property) earned after the physical transfer of the property when the granting party revokes the grant agreement are considered to be the granted party’s property. However, Noma-e-Motasel which cannot be separated from the actual property such as weight, height and length [of an animal] belong to the granting party. The profits earned from Noma-e-Mofasel after the grant agreement but before the property is received, belongs to the granting party.

(3). Pregnancy/fetus of a granted animal is considered a Noma-e-Mofasel. If the granted property is believed to be defective, the granting party shall not have the responsibility to make remedial payment after he/she revokes the grant agreement.

(4). After revocation of the agreement by the granting party, the additional value due to any modification of the granted property by the granted party shall be returned to the granted party.

(5). A creditor who has forgiven a debt, cannot revoke the forgiveness of the debt.

(6). Individuals donating their property for the purposes of charity (for the sake of Allah), Nazr, zakat (alms), Khoms (1/5 of the property) and religious dues, and other religious obligations cannot revoke their agreement.

(7). If the granted party includes parents, child, child of child, relatives, or spouse of the granting party, the granting party shall not have the right to revoke the agreement.

(8). A grant agreement conditional on getting property in return for the grant shall not be revoked.

(9). Any substantial change, loss or damage in the granted property shall overrule the right to revoke the grant agreement. Death of the granting party and physical transfer of the granted property will also overrule the right to revoke the grant agreement.

Date of Enforcement

Article 253:

This law is enforceable from the date of endorsement, and it shall be published in the Official Gazette.

page104image4600