The one third shall be calculated on the succession mass, determined after deduction of the rights encumbering it; those rights must be deducted before the legacy.
Family Code (Moudawana)
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Where legacies of the same rank exceed the disposable third, the beneficiaries shall share that third in proportion to their respective shares. Where one of the legacies concerns a specific property, the beneficiary of such a legacy shall take his share from that property itself. The share of the beneficiary of a legacy concerni…
If the heirs have, either after the death of the testator or during his last illness, ratified the will made in favour of an heir or the will covering more than the third of the estate, or if the testator had previously requested their authorisation to that effect and they have given it, those among them enjoying full capacity shall, by that fact, be bound.
Where a person dies after having made a legacy in favour of a child to be born, his heirs shall have the usufruct of the thing bequeathed until the child is born alive; the child shall then receive the legacy.
The usufruct belongs to the one of the legatees existing at the time of the testator's death or after that time. Any legatee who - 89 - is revealed after the death participates in the benefit of the usufruct until the day on which the non-existence of other legatees becomes certain. The existing legatees then take the bare ownership and the usufruct; the share of any one of them who shall die shall form part of his own succession.
Where a specific object is bequeathed successively to two persons, the second will revokes the first.
A legatee who dies after being born alive shall be entitled to the legacy. The latter shall form part of the estate of that legatee, who is deemed to have lived at the time of the devolution of the inheritance.
A legacy constituted for the love of God and in favour of charitable works, without precise indication of its destination, shall be used for the benefit of charitable works. A specialised institution may, where appropriate, be entrusted with the use of the legacy, subject to the provisions of Article 317 below.
A legacy made in favour of places of worship, charitable institutions, scientific institutions and any public service shall be used for their benefit as well as for the benefit of their works, their indigent persons and any other action falling within their purpose.
A legacy shall be valid when it is made in favour of a determined charitable work whose creation is envisaged. If such creation proves impossible, the legacy shall be allocated to the benefit of a work having a similar purpose.
In the case where the legacy concerns only the usufruct, the value of full ownership shall be taken into consideration to determine the share of the legacy in relation to the estate. - 90 -
In the event of the loss of the specific thing that is the subject of the legacy or of its allocation to a third party during the testator's lifetime, following a claim, the legatee shall no longer have any right. However, if such loss or allocation affects only part of the object of the legacy, the legatee shall receive the rem…
Where a property is bequeathed for the benefit of a child to be born of a third person who dies without leaving a child born or to be born, that property shall revert to the estate of the testator.
A will shall be annulled by: 1) the death of the legatee before the testator; 2) the loss, before the death of the testator, of the specific thing that was the subject of a legacy; 3) the revocation of the will by the testator; 4) the refusal of the legacy, after the death of the testator, by the legatee of full age. TITLE II: OF THE SUBSTITUTION OF HEIR (TANZIL)
Tanzil is the act of instituting a person as heir although he does not have that capacity, and of placing him at the same rank as an heir.
Tanzil is formed in the same manner as a will when its author says: “such person shall inherit with my child or with my children”, or: “include such person among my heirs”, or: “cause such person to inherit from my property”, or, where the testator has a grandchild descended from his son or his daughter: “cause my grandchild to…
Where, in the case of Tanzil, there is a reserved heir (Fardh) and if the author of the Tanzil expressly states his wish to allocate to the beneficiary of the Tanzil a share equal to that of the heir to whom he is assimilated, the determination of the shares shall be carried out by means of fractions (aoûl), and the Tanzil shall…
Where, in the case of Tanzil, there are no reserved heirs (Fardh), the person instituted as heir (Monazzal) shall be assimilated, as the case may be, to male or female heirs.
In the case of Tanzil, where there are several persons, of male or female sex, instituted as heirs and the author of the Tanzil has expressed his wish either to allocate to them the share that their father would have received during his lifetime, or to substitute them for him, the division shall be carried out among the beneficiaries in such a way that the man receives a share double that of the woman.
Cases that cannot be resolved under the provisions governing the Tanzil are resolved by referring to the provisions governing the will. - 92 - BOOK VI: SUCCESSION TITLE ONE: GENERAL PROVISIONS
The succession is the whole of the property or patrimonial rights left by the de cujus.
Five rights are included in and deducted from the succession, in the following order: 1) the rights encumbering the real property forming part of the succession; 2) the funeral expenses paid within the limits of propriety; 3) the debts of the de cujus; 4) the valid and enforceable will; 5) the succession rights according to the order established in this Code.
Inheritance is the transmission of a right, upon the death of its holder, after liquidation of the succession, to the person legally claiming it, without any gratuitous transfer or consideration.
Inheritance arises as of right upon the actual or presumed death of the de cujus and upon the certain survival of his heir.
A person is presumed deceased when no further news is received of that person and a judgment of presumption of death has been rendered in respect of that person. - 93 -
A reported missing person is considered alive with respect to his property. His succession may be opened and divided among his heirs only after a judgment declaring his death has been rendered. He is considered alive both with respect to his own rights and with respect to the rights of others. The share in doubt is set aside until his case has been decided.
When a person has disappeared in exceptional circumstances making his death probable, a declaratory judgment of death is rendered upon expiry of a period of one year running from the day on which all hope is lost of knowing whether he is alive or deceased. In all other cases, it is for the court to set the period at the end of w…
When several persons who are heirs of one another die, without it being possible to determine which of them died first, none of them inherits from the others, whether or not they perished in the same event. TITLE II: CAUSES OF SUCCESSIBILITY, ITS CONDITIONS AND ITS IMPEDIMENTS
The causes of successibility, such as conjugal ties and ties of kinship, are legal causes and not contractual or testamentary. Neither the heir nor his predecessor may renounce their capacity as heir or predecessor. They may not relinquish it in favor of another.
Successibility is subject to the following conditions: - 94 - 1) certainty of the actual or presumed death of the de cujus; 2) the existence of his heir at the time of the actual or presumed death; 3) knowledge of the tie conferring the capacity of heir.
A newborn has a right to the succession only when it is established that he was born alive, as shown by first cries, breastfeeding, or other similar indications.
There is no successibility between a Muslim and a non-Muslim, nor where paternal filiation is legally disavowed.
Anyone who intentionally kills the de cujus does not inherit his property, is not entitled to blood money (Diya), and does not exclude anyone, even if he invokes doubt. Anyone who unintentionally kills the de cujus inherits his property, but is not entitled to blood money (Diya) and excludes other persons. TITLE III: THE DIFFERENT MEANS OF INHERITING
There are four categories of heirs: - by Fardh only; - by Taâsib only; - by Fardh and by Taâsib at the same time; - by Fardh or by Taâsib separately.
Fardh is a determined succession share assigned to the heir. The succession devolves, in the first place, upon the heirs by Fardh. Taâsib consists in inheriting the whole succession or what remains thereof after allocation of the shares due to the heirs by Fardh. - 95 -
In the absence of an heir by Fardh, or where one exists and the Fardh shares do not exhaust the succession, the succession, or what remains of it after the heirs by Fardh have received their shares, goes to the heirs by Taâsib.
The heirs by Fardh only are six in number: the mother, the grandmother, the husband, the wife, the uterine brother, and the uterine sister.
The heirs by Taâsib only are eight in number: the son, the son of the son to infinity, the full brother, the consanguine brother and the son of each of them to infinity, the full uncle, the paternal uncle and the son of each of them to infinity.
The heirs who are at the same time by Fardh and by Taâsib are two in number: the father and the grandfather.
The heirs by Fardh or by Taâsib, but who cannot combine the two capacities, are four in number: the daughter, the daughter of the son, the full sister, and the consanguine sister. TITLE IV: THE HEIRS BY FARDH
The Fardh shares are six in number: one-half, one-quarter, one-eighth, two-thirds, one-third, and one-sixth.
The heirs entitled to a Fardh share equal to one-half of the succession are five in number: 1) the husband, on condition that his wife has left no descendants with succession vocation, whether male or female; - 96 - 2) the daughter, on condition that she is not in the presence of any other child of the de cujus, whether male or…
The heirs entitled to a Fardh share equal to one-quarter of the succession are two in number: 1) the husband, in concurrence with descendants of the wife having succession vocation; 2) the wife, in the absence of descendants of the husband having succession vocation.
A single Fardh heir may receive one-eighth of the estate: the wife, when her husband leaves descendants having inheritance rights.
Four heirs are entitled to two-thirds of the estate: 1) two or more daughters of the de cujus, in the absence of a son; 2) two or more daughters of the son of the de cujus, provided that they are not in the presence of a male or female child of the de cujus and of a son of the son at the same degree as them; 3) two or more full…
Three heirs are entitled to a Fardh share equal to one-third of the estate: 1) the mother, provided that the de cujus leaves no descendants having inheritance rights, nor two or more brothers and sisters, even if they are subject to eviction (Hajb); 2) several uterine brothers and/or sisters, in the absence of the father, the pa…
The beneficiaries of one-sixth of the estate are: 1) the father, in the presence of a child or a child of a son of the de cujus, whether male or female; 2) the mother, provided that she is in the presence of a child or a child of a son or of two or more brothers and/or sisters actually taking part in the estate or being subject…
There are three kinds of asaba heirs: 1) asaba heirs in their own right; 2) asaba heirs through another; 3) asaba heirs with another.
The asaba heirs in their own right are classified in the following order of priority: 1) male descendants from father to son in infinitum; 2) the father; 3) the paternal grandfather and the full and consanguine brothers; 4) male descendants of full and consanguine brothers in infinitum; 5) the paternal uncles, full or consanguin…
1) When, in the same category, there are several asaba heirs in their own right, the estate belongs to the one who is of the closest degree of kinship to the de cujus. 2) When, in the category, there are several heirs of the same degree, priority is based on the strength of the kinship tie: the full relative of the de cujus has…