Circumvention of Inheritance Provisions via Wills in Islamic Jurisprudence and Yemeni Law: A Comparative Study

Abstract

This study examines the issue of circumventing the rules of inheritance through wills in Islamic jurisprudence and Yemeni law. It addresses the concept of circumventing the rules of inheritance through wills, its types, and the forms of overt schemes used to circumvent inheritance rules through improper wills, such as bequeathing more than one-third of the estate and making a will in favor of an heir. It also examines the forms of covert schemes used to circumvent inheritance rules through concealed wills, including sham sales, gifts disguised as wills, and the acknowledgment by a person suffering from a terminal illness of a debt during the illness preceding death. The researcher concludes that circumventing the rules of inheritance through a will refers to the effect resulting from making a testamentary disposition through hidden and deceptive means with the purpose of nullifying the mandatory rules of inheritance, thereby depriving some heirs or reducing their shares as prescribed by Islamic law and statutory law. The study further finds that Islamic jurists unanimously agree that bequeathing more than one-third of the estate is impermissible, in order to prevent overt circumvention of the heirs’ prescribed shares, and that a will made in favor of an heir is valid subject to the approval of the other heirs. It also concludes that a sham sale disguised as a testamentary disposition is not legally effective and is instead subject to the rules governing wills; that a gift in which the donor retains possession of the property and continues to benefit from it until death does not constitute a genuine transfer of ownership and is therefore subject to the rules and conditions governing wills in order to prevent circumvention; and that an acknowledgment of debt by a person suffering from a terminal illness is valid where there is no suspicion of circumvention or harm to the heirs, but is invalid where such suspicion or fraudulent intent exists. The study further finds that the Yemeni legislator has affirmed the prohibition of circumventing inheritance rules through both overt and covert schemes. The researcher recommends amending Article (469) of the Yemeni Civil Code by establishing specific criteria for defining terminal illness, fair market value, the degree of minor and gross unfairness in price, and the presumptions by which collusion to deprive heirs can be established, so that the ambiguity of these terms cannot be exploited to facilitate a sham sale or a sale made on preferential terms. The researcher also recommends adding provisions addressing the legal rules governing sham transactions.