Inheritance Law Research Articles

Inheritance agreement: harmonization with the law of the European Union

At present, work is underway to harmonize the norms of national civil law with the legal norms of European and international law. In most countries of the European Union the institution of inheritance agreement is quite common, and the procedure for its conclusion and implementation is regulated in detail, in contrast to our country, where the inheritance agreement is still inferior in regulation to established institutions of inheritance law - inheritance by law and inheritance by will. This necessitates a legal analysis of the main provisions of European and national legal regulation of the inheritance agreement. The implementation of the inheritance agreement is conditioned by the needs of the present and confirmed by the practice of application in the countries of the European Union. Given its legal structure, the lack of a common scientific position on the legal nature of the inheritance agreement, its ambiguity and lack of consistent case law on the application of this institution, the inheritance agreement is an extremely relevant topic for research in scientific terms. This necessitates a legal analysis of the main provisions of European and national legal regulation of the inheritance agreement and identify common and distinctive features of this institution, which will identify gaps in Ukrainian legal regulation and find ways to transform, modernize and bring national standards in line with European and international standards. Thus, given the European integration aspirations of our country, the harmonization of the institution of the inheritance treaty with the norms of the European Union is a topical issue today. The model of inheritance agreement under the civil law of Ukraine differs significantly from its counterpart in foreign law, where the inheritance agreement is aimed primarily at appointing an heir and is considered along with inheritance by will and law as the basis of inheritance and, accordingly, creates inheritance The introduction of European legislation into domestic practice, in particular the harmonization of civil law with the norms of the European Union, is necessary for the effective use of this legal structure and to fill the gaps in national legislation in the field of inheritance contract regulation.

THE PROBLEM OF POVERTY IN ISLAM AND THE PECULIARITIES OF APPROACHES TO ITS REDUCTION

Islam commands those who can afford to work and strive to earn enough to provide for themselves and their families. Those who are unable to work, as well as those who have not acquired anything materially on the basis of inheritance law, and who do not have the means to cover their needs, attach their wealthy relatives to them and impose a pension obligation on them. However, not all the poor have rich relatives. Islam does not ignore such desperation. Allah has commanded the rich to give to the poor out of their wealth. This is an undeniable ruling and it is called zakat. The greatest purpose of making zakat obligatory is to make the poor rich.

Will and the legal reserve of inheritance in Korean law

Part V of the Korean Civil Code regulates legal relations in respect of inheritance. Of the three chapters that comprise Part V, the first Chapter stipulates general provisions, thereby governing inheritance in the absence of a will. The second Chapter lays down the legal norms regarding wills, whereas the last of the chapters is dedicated to the ‘legal reserve of inheritance’, the reserved portion in the inherited property of the deceased person. From a comparative law perspective the legal reserve of inheritance is far from an institution unique to Korea. On the contrary, most jurisdictions have legislation that addresses issues of disinheritance in some form or other. The trait that is relatively characteristic of Korean law is that it chooses to strongly protect the right of the legal reserve of inheritance, which in turn results in limiting the freedom of testation. This was a conscious decision made by the legislator in the late 1970s, some 17 years after the Civil Code was enacted and entered into force, when Korean lawmakers inserted a new Chapter on the legal reserve of inheritance into Part V (Inheritance) in an effort to reflect traditional family values that placed special emphasis on family ties. This objective of this paper is to offer an overview of wills and the legal reserve of inheritance in Korean inheritance law. Looking at how the inheritee voluntarily (by means of a will) and involuntarily (by means of the legal reserve of inheritance) disposes of his/her assets after passing away, will hopefully help shed light on some characteristics of Korean inheritance law.

ДО ПИТАННЯ РЕЦЕПЦІЇ РИМСЬКОГО ПРАВА В ЛИТОВСЬКИХ СТАТУТАХ (НА ПРИКЛАДІ СПАДКОВОГО ПРАВА)

The purpose of the article is a comprehensive historical and legal analysis of the peculiarities of the reception of Roman law in the Statutes of the Grand Duchy of Lithuania on the example of inheritance law. The reasonableness of theoretical propositions, conclusions, scientific analysis and the reliability of research results are ensured by using of a set of philosophical, general scientific and special scientific methods, namely: historical and legal, comparative and legal, historical and functional, formal and legal, etc. The research was carried out from the perspective of the historicism principles, objectivity, versatility, complementarity, and reasonableness, which created a reliable methodological basis for a comprehensive analysis of the research subject. The article provides a comparative legal analysis of Article 14 of Chapter V of the Statute of 1529 with the provisions of Justinian's Institutions and Digest, as well as Article 13 of Chapter IV of the Statute of 1529 and Article 7 of Chapter VIII of the Statute of 1566 with Justinian's 115th novella. It is proved that the active transplantation of the norms of Roman law to the Lithuanian-Russian soil did not begin in the Statute of 1566, but during the work on the Statute of 1529. It was established that the reception of the provisions of Roman law in the Lithuanian statutes is mostly superficial, the theoretical part and complex legal categories Roman jurisprudence is almost never used, and borrowings often turn into a literal translation of one or another norm. The author comes to the conclusion that in some cases the Lithuanian-Russian law adopted the Roman norms of inheritance law so much that it even used identical exceptions from the general rules. The problem of ways of reception of Roman legal norms, especially regarding the Statute of 1529, remains debatable and relevant enough to be analyzed in detail in a separate scientific study in the future.

POKLON ZA SLUČAJ SMRTI U NACRTU GRAĐANSKOG ZAKONIKA REPUBLIKE SRBIJE

In the draft of the Republic of Serbia Civil Code the legislator regulates the matter of a gift in prospect of death in the section entitled Gift. The complexity of this institute is reflected in the dilemma - is it exclusively characterized by its contractual nature, or it contains the elements of inheritance law as well. If one of its characteristics is that the gift donor has the right to unilaterally terminate the gift agreement at any time, as much as a testator may withdraw his legacy from the will, than a gift in prospect of death undoubtedly represents a legal action which contains the elements of inheritance law. The other dilemma refers to the subjects whom a gift donor may terminate the rights from the gift agreement made in prospect of death – is it just the donee who the donor may deprive of the gift or his heirs as well in case the donor survives the donee. Having analyzed the proposed provisions regulating the issue of the gift in the prospect of death in the draft of the Republic of Serbia Civil Code, the author presents his views on issues and dilemma related to this concept, as well as to its characteristics and legal nature.

Kierunki zmian szwajcarskiego prawa spadkowego

Article Directions Swiss-inheritance law-changes deals with the issues of the wider rights of inheritance law in force in Switzerland. Given that the close ties of Polish law with European law are not without influence on the Polish civil law, including inheritance laws, there is an attempt to analyze the wording of the standards of modern Swiss inheritance law and jurisprudence BGer exegesis in this regard. Not to mention the role of the Swiss Civil Code, which became the model for many other laws, including the Polish legislation. In the era of draft amendments to Polish law of inheritance may have a value of retrospective look at the evolution of a European legal systems. The article is thus an attempt to describe the influence of the most significant revision of choices in Swiss inheritance law (including those relating to the following : equal rights for descendants of heredity, changes in the inheritance by a spouse, inheritance rights of a surviving spouse, registered same-sex partners) at present condition of inheritance law in this country. Analysis of the above solutions allowed to reply the question: what conditions underlay the choice of orders of succession operating in Switzerland, and what conditions determine a wide selection of the class of persons appointed to inherit. The specific practices of legal succession in force in that legal system based on different assumptions of succession (the reserve system, the conventional inheritance) were also taken into account. There were analyzed the following: development of succession rights of selected groups of relatives of the deceased, including above all the deceased spouse and descendants, but also registered partners. Attention was paid to include Such a solution – not found in the Polish legal system – was also indicated, i.e. the accumulation of shares of succession and vested right to use the inheritance by a spouse in force until 1988. Significant practical importance can have also the discussed in the article Erbschleicherei phenomenon concerning all the legal systems, which have had a risk of fraudulent acquisition of inheritance by third parties. The analysis of the descendant rights vested in those connected with the testator only by factual relations, and also detailed arrangements within contractual orders of succession, where a wide choice – after decades of application – is found in Swiss law, may provide a clue to the Polish legislature as to the possible future legislative changes.

یہودیت و عیسائیت میں خواتین کے احکام وراثت کا تنقیدی مطالعہ A Critical Study of Women's Inheritance in Judaism and Christianity

The ancient method of inheritance in early Judaism and other ancient nations was that all the property of the deceased was given to his close blood relatives. Usually, the first son becomes the head of the family and becomes the owner of the family property. If the deceased had no son, he would appoint a friend as his heir. For those Christians who claim to be followers of Jesus (AH), there is no mention in the Bible of any family, social or economic laws, nor any special law of inheritance. Christians have therefore followed Roman and Jewish laws of inheritance, and have used the laws of other religions. This article critically examines the laws and rules of women's inheritance in Judaism and Christianity.

Pelaksanaan Waris Masyarakat Suku Baduy Muslim Di Desa Kanekes Kecamatan Leuwidamar Kabupaten Lebak Provinsi Banten

The Muslim Baduy community adheres to the customs and traditions they profess from their ancestors. The inheritance system used in the Baduy customary inheritance uses the Bilateral system, which is that the mother and father are equally strong. Issues that will be discussed are how the implementation of the inheritance of the Baduy Muslim tribe. This type of research used in this study is empirical normative legal research, with exposure to data used primary and secondary data and analyzed qualitatively. The difference between Baduy inheritance law and Islamic inheritance law in Pikukuh as an unwritten inheritance rule in Islamic inheritance law is based on the Koran and As-Sunnah. There are similarities that the heirs are the descendants of the deceased and the inheritance can only be distributed after the death of the testator, but the Baduy community does not distribute the inheritance to the lineage to the top.

The Superiority of Customary Law over Islamic Law on the Existence of Inheritance: Reflections on Snouck Hurgronje's Reception Theory

In colonial history in the Dutch East Indies, customary law was superior to Islamic law. By utilizing the historical approach of social thought, this article aims at exploring how and why customary inheritance law was more applicable than Islamic inheritance law. After observing the practice in several areas, including in Surambi Masjid, Snouck Hurgronje found that customary law dominated people's lives. In turn, this idea was implemented in Dutch legal regulations that weakened the roles of penghulu of the Religious Courts in resolving family and inheritance issues that required approval from the District Court judges. In addition, the penghulu’s decision was not valid if it was not in line with customary law. Based on Hurgronje’s advice, the competence of the Religious Court at inheritance was transferred to the District Court. He considered that inheritance was under the state’s authority, and at the same time, it had not been fully accepted by customary law.

Negligence of support duty and Limitation of inheritance rights

Recently, in society, there has been a consensus that inheritance rights should be limited for those who do not fulfill their duty of support or harm their family. In response to this, various bills have been proposed. In addition, the Ministry of Justice announced the amendment to the Civil Code, known as the ‘Late Goo Hara Act’, on January 7, 2021, and submitted to the National Assembly on June 18, 2021. The amendment primarily deals with how in case the spouse of the decedent, or a person who becomes an heir pursuant to Article 1000, commits a reprehensible act against the decedent, the loss of inheritance rights may be filed with the Family Court. However, many criticisms have been raised regarding the issues related to the aforementioned amendment, and as one of the alternatives, the introduction of a system for loss of inheritance for legally reserved portion along with the expansion of the inheritance disqualification system have been introduced. Accordingly, the following study reviews the main legislative issues focusing on the details and problems related to the amendment to the system for loss of inheritance rights. The societal impact therefrom is expected to be huge, including the private legal relationship of the citizens. It is necessary to thoroughly examine how to rightfully put the amendment into practice in ways not contradictory to the existing inheritance law system in consideration of the people s feelings towards the inheritance law system.

Kontekstualisasi Hukum Waris di Indonesia: Tinjauan Maqashid Syari’ah terhadap Hak Waris Ayah pada Pasal 177 Kompilasi Hukum Islam

This article aims to analyze the renewal of Islamic inheritance law in the Compilation of Islamic Law (KHI) regarding inheritance rights for fathers from the perspective of ijtihad, maslahah, and maqashid sharia. This study is a part of legal research using the library method. The approach used in this study is historical and juridical normative. The data obtained were then analyzed with the interactive qualitative analysis of the Miles and Huberman model, namely data reduction, data verification, and concluding. This study found that the provision of the father's inheritance was rejected as a valid product of ijtihad. Viewed from the perspective of maqashid al-syar'iyyah, this provision does not at all try to maintain the five basic principles above, both the maintenance of religion (din), soul (nafs), reason (aqal), offspring (nasab), property (mal). On the other hand, these provisions only bring harm.Keywords: Compilation of Islamic Law; Father inheritance share; Inheritance Law

Does Batak Toba Widower Get the Wife’s Family’s Inheritance?

The problem that will be discussed in this article is about the inheritance rights of a widower according to the customary inheritance of the Batak Toba, whether the widower according to the customary inheritance law of the Batak Toba gets an inheritance from his wife's family. The type of normative legal research used in this article is supported by references or secondary data as the basic material for research related to the issues discussed, that is the rights of the inheritance of widowers in Batak Toba. The data sources used are primary data and secondary data. The data from the results of this study will be analyzed with a qualitative approach, then will be described descriptively. The conclusion obtained from this study is that a Toba Batak widower, in the customary inheritance law of the Batak Toba does not inherit from his wife's family because the wife is a family member of the husband (honest marriage), because the wife herself does not also get an inheritance fromhis parents, because in Batak Toba community, only sons (his wife's brother) get a share of the inheritance and become the heirs of the wife's parents.

A Critique of Muḥammad Shahrūr's Views on the Qur’ān, the Ḥadīth Corpus, Sharīᶜah, and Early Islamic Scholarship

This article describes the life, education, and thoughts of Muhammad Shahrūr, whose discourse on Islam generated confusion and much in the way of polemical debate. His controversial bias favoured modernity, influenced by modern Western epistemology, traditions, and secularism. The author applies qualitative content analysis to select writings. The analysis unveils his position (s) in light of mainstream Islam and focusses on Shahrūr’s approach to Islamic religious thought via (1) theories of Non-Synonymity and Limit; (2) his view of the Ḥadīth and Sharīᶜah; (3) the status of Muslim women with regard to polygamy, dress code and feminism; (4) the law of inheritance; (5) western culture and civilization; and (6) evolution; democracy, nationalism and pluralism, etc.

Statut spadkowy w postępowaniu dotyczącym podatku od spadku. Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 16 maja 2019 r., II FSK 1811/18

The Supreme Administrative Court has correctly adjudicated that without determining which inheritance law is applicable to the inheritance from the testator, the tax authority cannot categorically claim that an heir subject to inheritance and donation tax acquired the ownership of things or rights by inheritance at the time of the testator’s death. The ruling of the Supreme Administrative Court is also an opportunity to take a broader look at the provisions of the Act of the 28th of July 1983 on inheritance and donation tax which go beyond the issues covered by this jurisdiction. That act also raises other issues the resolution of which requires the application of conflict-of-law rules or, at the very least, of the methods of qualification specific to private international law.The position adopted by the Supreme Administrative Court in this verdict should contribute to the increase of the interest of tax authorities in conflict-of-law issues. Inheritance and donation tax is a public levy with which, due to the nature of the legal events covered by it, there are cases with the so-called „foreign element”. These are also of interest to the conflict-of-law rules. When considering them, as follows from the ruling of the Supreme Administrative Court, it is necessary to refer not only to our own (Polish) provisions of civil law, but also, by applying appropriate conflict-of-law rules, to the provisions of foreign civil law.

Regionalne ujednolicenie prawa prywatnego międzynarodowego w Skandynawii ze szczególnym uwzględnieniem spraw spadkowych

The aim of the following article is to introduce characteristics of the Nordic countries’ cooperation in the field of private international law, with particular emphasis on legislative cooperation concerning matters of inheritance law. The study discusses the genesis, characteristics and methods of legislative cooperation, along with selected Nordic conventions on private international law. As an example of a legal act of such kind, the article presents the Convention of 19 November 1934 comprising private international law provisions on succession, wills and estate administration, the detailed analysis of which was based on the author’s translation of the act from Swedish to Polish. Selected detailed issues discussed in the content of the Convention were also presented, some of which were compared to the solutions adopted by Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012.

AHLI WARIS TUNGGAL PEREMPUAN MENURUT HUKUM WARIS ISLAM (ANALISIS PUTUSAN AGAMA MATARAM)

The purpose of this study is to determine the application of Islamic inheritance law in the settlement of inheritance disputes at the Mataram Religious Court, so that it can be seen whether there is gender discrimination in inheritance distribution according to Islamic inheritance law rules. This is done by analyzing the decisions of inheritance cases, which are decided by the Mataram Religious Court. The method used in this study is a normative legal approach which aims to analyze the decisions of religious courts related to inheritance cases. Aspects that will be studied are: Application of Islamic inheritance law in the settlement of inheritance disputes and discrimination against women in Islamic inheritance law. The results of the study show that the legal regulation of daughter inheritance in Islam is shown in Surat An-Nisa (IV): verses 11, 12, 33, 176 and in the hadiths of the Prophet. then in the Compilation of Islamic Law (KHI) the distribution of inheritance for only female children is stated in article 176, where if "a daughter if only one then she gets half the share; if two or more persons, they jointly get two-thirds of the share; and if the daughter is together with the son, then the share of the son is two to one with the daughte.

Pentadbiran Undang-Undang Harta Pusaka Mualaf Di Malaysia: Satu Sorotan Literatur

Inheritance is something that has material value left by a person after his death which is obtained during his life truly and becomes the perfect property during his life and is eternally owned by simati until he dies. In Malaysia, the distribution of Islamic inheritance is subject to faraid law, in which non-Muslims cannot inherit Muslim property. However, for the property of non-Muslims, there is a law that protects it, namely the Distribution (Amendment) Act 1997, Act 1004. This Act does not state that Muslims cannot inherit the inheritance of non-Muslims. The distribution is made to the heirs based on the kinship relationship and marriage regardless of religion. This means that Muslims also inherit the property of non-Muslims. The two main methods of distributing inheritance that is practiced in Malaysia are the distribution method according to Islamic law for the death of a Muslim and the distribution method according to civil law which affects the Act of Dispensing 1958 (Act 300) for the death of non-Muslims. Both mechanisms involve converts, either converts as the dead or as heirs. Those with the title of convert to Islam have their uniqueness in the distribution of inheritance which is different from the usual inheritance distribution mechanism. Due to these differences in distribution, this study was carried out to highlight the administration of inheritance laws involving converts to Islam in Malaysia. This study was conducted using a qualitative method by taking a literature review approach, also continuing the content analysis design. The results of the study highlights that have been carried out show that there have been many writings, ideas, and discussions regarding this case made by the reviewers. The results of the study found that there are procedures and provisions for laws in the settlement of inheritance involving heirs of converts if they are not Muslim, as well as if converts are heirs to the property of the dead who are not Muslim. Therefore, with an explanation of the administration of the law in this study, it can resolve errors to the public regarding the issue of inheritance and property inheritance involving converts in Malaysia.

DA'WAH STRATEGIES TO INCREASE THE UNDERSTANDING OF FARAIDH SCIENCE IN SOCIETY

This study aims to analyze the implementation and constraints that affect the application of Islamic inheritance law among Muslims. This research is a qualitative research, using the methods of descriptive approach, sociology, normative theology and historical. Research shows that the implementation of Islamic inheritance law is more dominantly done in the family due to various factors. The special portion provided for the heirs is owned by the parents and is in absolute control. The application of the law for the division of property is always done by distributing it to the heirs by family without looking at the provisions of God's law. Problems in the application of Islamic inheritance law include the thickness of customary law and the low understanding of Islamic inheritance law (Ilmu Faraidh). Here the da'wah to teach the Science of Faraidh and various sciences of jurisprudence that began to understand the science of Faraidh became a must done by the community. And there is a need for systematic strengthening of da'wah so that knowledge is understood in a kaffah manner so that the application of maqashid syariah becomes more comprehensive.

Application of Inheritance Law in Minangkabau According to Islamic Law

The majority of Minangkabau people’s inheritance are given to their daughter not to their son. Hereditary inheritance property becomes a high heirloom while the inheritance of parents’ work are low heirlooms. In Islam, the inheritance are arranged in faraidh science. This research is a descriptive analysis, the type of research used was empirical juridical. The sources of data used in this study are: 1.Document studies, 2.Interviews, 3. Questionnaires. The issue of high heirlooms is intended for the daughters, low heirlooms have the son’s right in it. The sample given by Mr. Amrizal as the head of the Nagri costume density in the Nanggalo subdistrict still upholds Islamic law because that is where the source of strength is used as a guide in the application of this heritage. It's just that the terms are different. Meanwhile in the Koto Tangah subdistrict, Buya Darmis Muar as the niniak mamak at Aia Pacah and the head of the MUI subdistrict, Koto Tangah had explained it already. This problem would not find a bright spot / solution regarding the costume with Islamic law / faraidh.

Najmuddīn Al-Tūfī's Thoughts on The Dynamics of Inheritance Law 2:1 Perspective of Maṣlaḥah

Islamic hereditary law in the reality of human life demands legal dynamism to vouch for the flexibility and adaptability of genetic law following the characteristics of modern Muslim societies. This article elaborates on the dynamics of the 2: 1 inheritance law between heirs, male and women, from the perspective of the maṣlaḥah of Najmuddīn al-Ṭūfī. To analyze the conception of inheritance 2:1 division, this study attempts to dissect it with the theory of maṣlaḥah Najmuddīn al-Ṭūfī. The studies and analysis have been discovered, resulting in the conclusion that the dynamics of the 2: 1 hereditary law has been subject to embodying the benefits properly. In the view of Najmuddīn al-Ṭūfī, the help is the goal of sharia, even the highest argument if it is contradicted between text and maṣlaḥah. This view, when applied to the verse of the Holy Qur'an, An Nisa (4): 11, will open up opportunities for responsive reinterpretation. Based on this concept, it is understood that deviating from the law of text in the distribution of inheritance is permissible to create benefits for the heirs and avoid disputes.