The public prosecutor's office, the legal representative, the family council, one or more close relatives may, at the end of the inventory, present their observations to the judge in charge of guardianships concerning the estimation of the maintenance allowance necessary for the interdicted person and on the choice of the means…
Family Code (Moudawana)
Unofficial translation. The English interface is for information only — only the Arabic text published in the Bulletin Officiel is authentic. Read this page in العربية · Français
The two adoul, after having informed the public prosecutor's office thereof, shall proceed, on an order and under the supervision of the judge in charge of guardianships, to the definitive and integral inventory of the property, rights and obligations, in the presence of the heirs, the legal representative and the interdicted pe…
The testamentary or datif guardian must record in the register referred to in Article 250 above all the acts concluded in the name of the interdicted person whose guardianship he ensures, with their date. 11 - Order of the Minister of Justice No. 275-04 of 12 hija 1424 (3 February 2004) fixing the form and content of the registe…
If property that has not been inventoried comes to be added to the patrimony of the interdicted person, the testamentary or datif guardian must mention it in an annex which shall be attached to the first inventory.
The testamentary or datif guardian must present to the judge in charge of guardianships, through two accountants designated by the judge, an annual account, supported by all the supporting documents. The said accounts shall be approved only after having been examined, checked and judged to be sincere. If the judge notes an anomaly in the accounts, he shall take the measures likely to protect the rights of the interdicted person.
The testamentary or datif guardian must, at any time, respond to the request of the judge in charge of guardianships to provide him with any clarification on the management of the property of the interdicted person or to render an account thereof.
The testamentary guardian is liable for the failures in his commitments concerning the management of the affairs of the interdicted person. The provisions relating to the liability of the salaried agent are applicable to him, even if he exercises his mission gratuitously. He may, where appropriate, be criminally liable for his acts.
The mission of the testamentary or datif guardian terminates in the following cases: 1) the death of the interdicted person, the death or absence of the testamentary or datif guardian; 2) when the interdicted person has reached majority, unless he is maintained under interdiction, by judicial decision, for other reasons; 3) the…
When the mission of the testamentary or dative tutor ends for a reason other than death or loss of his civil capacity, he must present the accounts supported by supporting documents, within a period set by the judge in charge of guardianships, provided that this period does not exceed thirty days, except for compelling reason. The court shall rule on the accounts presented to it.
The testamentary or dative tutor shall be liable for damage caused by any unjustified delay in presenting the accounts or handing over the property.
The property shall be handed over to the interdicted person upon reaching majority, to his heirs after his death, and to the successor of the testamentary or dative tutor in other cases. In the event of non-handover, the provisions referred to in Article 270 below shall apply.
In the event of the death of the testamentary or dative tutor or in the event of loss of his civil capacity, the judge in charge of guardianships shall take the measures likely to protect and preserve the property of the interdicted person. The claims and compensation owed to the interdicted person from the estate of the decease…
The interdicted person who reaches the age of majority or whose interdiction is lifted retains his right to bring all actions relating to accounts and to acts prejudicial to his interests against the testamentary or dative tutor or against any person who has been entrusted with safeguarding his interests. - 81 - The said actions…
The testamentary or dative tutor may request to be remunerated for the duties of legal representation. His remuneration shall be set by the court, as from the date of the request. CHAPTER III: JUDICIAL CONTROL
The court shall ensure control of legal representation in accordance with the provisions of this Book. This control aims to ensure the protection of the interests of incapable persons and persons not fully capable, to order all necessary measures to preserve those interests and to supervise their management.
When a person dies leaving minor heirs or when the testamentary or dative tutor dies, the local administrative authorities and the close relatives with whom the deceased lived must inform the judge in charge of guardianships thereof, within a period not exceeding eight days. The same obligation shall lie with the public prosecut…
The judge in charge of guardianships shall order the drawing up of a deed of inheritance (iratha) mentioning the heirs and the adoption of any measure he considers appropriate for the preservation of the rights and financial and personal interests of minors. - 82 -
The judge in charge of guardianships, after consulting, where appropriate, the family council, shall set the costs and compensation entailed by the management of the property of the interdicted person.
If the legal representative intends to undertake an act that opposes his interests, those of his spouse or those of one of his ascendants or descendants, to the interests of the interdicted person, he shall refer the matter to the court, which may authorize him for that purpose and appoint a representative of the interdicted person for the conclusion of the act and the preservation of the interests of the interdicted person.
If the testamentary or dative tutor does not comply with the provisions of Article 256 above or refuses to present the accounts or to deposit the balance of the sums of the interdicted person, the judge in charge of guardianships, after a formal notice that has remained without effect during the period he has set, may order, in…
The testamentary or dative tutor may not carry out the following acts without the authorization of the judge in charge of guardianships: 1) sell an immovable or movable property of the interdicted person whose value exceeds ten thousand dirhams (10.000 DH) or create a real right over that property; 2) contribute, by way of parti…
No authorization shall be required with respect to the sale of movable property whose value exceeds five thousand dirhams (5.000 DH) if they are susceptible to deterioration. The same shall apply to immovable or movable property whose value does not exceed five thousand dirhams (5.000 DH), provided that such sale does not constitute a means of evading judicial control.
The preceding provisions shall not apply if the price of the movable property is set by regulation and the sale is carried out in accordance with that price.
The sale of the movable or immovable property that has been authorized shall be effected in accordance with the provisions of the Code of Civil Procedure.
Any partition of property in which the person under interdiction is a co-owner shall be the subject of a partition project submitted to the court, which shall approve it after ensuring, by means of expertise, that it does not prejudice the interests of the person under interdiction.
The decisions of the judge responsible for guardianships, taken under Articles 226, 240, 268 and 271, shall be subject to appeal. - 84 - BOOK V: OF THE WILL TITLE ONE: CONDITIONS OF THE WILL AND MODALITIES OF ITS EXECUTION
The will is the instrument by which its author constitutes, over one third of his property, a right that becomes enforceable upon his death.
To be valid, the will must not contain contradictory, ambiguous or unlawful stipulations. CHAPTER ONE: OF THE TESTATOR
The testator must be of age. A will made by a person suffering from dementia during a moment of lucidity, by a spendthrift or by a person of weak mind is valid. CHAPTER II: OF THE LEGATEE
A will may not be made in favour of an heir, except with the permission of the other heirs. However, this does not prevent an instrument from being drawn up to that effect.
A will made in favour of any legatee who may legally become owner of the object bequeathed, in a real or virtual manner, is valid.
A will made in favour of a legatee existing at the time of the instrument or whose existence is to come is valid. - 85 -
The legatee must fulfil the following conditions: 1) not have the status of heir at the time of the testator's death, subject to the provisions of Article 280 above; 2) not have voluntarily killed the testator, unless the latter, before his death, made a new will in his favour. CHAPTER III: OF THE OFFER AND ACCEPTANCE
The instrument of will consists of the offer emanating from a single party, namely the testator.
The effect of the will may be subject to the fulfilment of a condition, provided that such condition is valid. A valid condition is any condition that presents an advantage for the testator or for the legatee or for third parties and is not contrary to legal objectives.
The testator has the right to revoke his will and to annul it, even if he undertakes not to revoke it. He may, as he wishes and at any time, whether in good health or ill, insert conditions therein, institute a co-legatee or partially annul the will.
Revocation of the will may take place either by an express or tacit declaration or by an act such as the sale of the bequeathed object.
A will made in favour of an undetermined legatee does not need to be accepted and may not be refused by anyone. - 86 -
A will made in favour of a determined legatee may be refused by the latter if he has full capacity. The right to refuse is transmitted to the heirs of the deceased beneficiary.
The refusal of the legatee shall be taken into consideration only after the death of the testator.
The will may be refused or accepted partially. This right may be exercised by some of the legatees if they have full capacity. The annulment of the will shall concern only the refused part and shall produce effects only with respect to the person making the refusal. CHAPTER IV: OF THE OBJECT OF THE LEGACY
The object of the legacy must be capable of appropriation.
If the testator has made an addition to the determined object of a legacy, the addition shall be incorporated into the legacy if it is among those considered negligible, or if the testator intended to annex it to the bequeathed object, or if what has been added cannot by itself constitute an independent asset. If the addition is…
The object of the legacy may be a real asset or a usufruct, for a determined period or perpetually. The costs of its maintenance shall be borne by the usufructuary. - 87 - CHAPTER V: OF THE FORM OF THE WILL
The will is concluded by means of any expression or writing or by means of any unequivocal sign, in the case where the testator is unable to express himself verbally or in writing.
For it to be valid, the will must be the subject of an adoular deed or recorded by any official authority empowered to draw up instruments or by a handwritten instrument of the testator signed by him. Where an imperative necessity makes it impossible to record the instrument of the will or to write it, that will is admissible wh…
A will written in the testator's hand must contain a declaration authorizing its execution. CHAPTER VI: OF TESTAMENTARY EXECUTION
Testamentary execution belongs to the person designated for that purpose by the testator. Failing that, and where the parties do not agree on execution, it shall be carried out by the person designated for that purpose by the judge.
The will may not be executed against an estate whose liabilities exceed its assets, unless the creditor having full capacity consents thereto or there is extinction of claims. - 88 -
Where the legacy is equal to the share devolving upon an undetermined heir, the legatee shall be entitled to a share calculated by reference to the number of persons entitled to succeed, but may not claim more than one third, except with the permission of the heirs of age.