Obligatory Will in the Civil Code of Afghanistan: Analysis, Sharia Verification, and Case Solutions

Abstract

Sharia status of Obligatory will is a controversial issue among Islamic Law's jurisprudents, with two leading views in this regard as follows: 1. According to Imam Abu Hanifa, if the deceased person has left some wealth behind, there will be no will obligatory upon him unless there is some right left on him that there is no way for its fulfillment except through a will. The author of Tafsir-al-Jassas emphasizes on the necessity of obligatory will in this case. 2. A number of jurists and Hadith scholars such as Saeed ibn Musayyab, Hassan Basri, Davood Zahiri, Isaac ibn Rahvaih, Ibn Hazm Zahiri and Imam Ahmad ibn Hanbal hold that will is obligatory for some of the relatives who are deprived of the inheritance. In order to provide social interests, and to prevent from hatred and jealousy among the non-heir grandchildren who have lost their father while their grandfather has been alive, so they are deprived of their grandfather's inheritance, the Afghan civil code does not regulate the obligatory will in accordance with Hanafi jurisprudence. But rather, it deems the will obligatory for non-heir relatives, specifically the grandchildren who could inherit from their parents by either quota or residuary, with certain conditions, under articles 2182 to 2188. Accordingly, it states that obligatory will has priority over any other wills.