ابراهیم کریمی

Abstract:

This research examines the institution of "Mandatory Will" in comparative jurisprudence and analyzes the relevant religious sources, legal documents, and associated rulings. The Mandatory Will, as an emerging institution in the legal systems of Islamic countries, particularly Egypt, Syria, Iraq, and other Arab nations, is designed to protect descendants who are deprived of inheritance in cases where parents die before their grandparents. This study employs an analytical-descriptive and comparative approach to investigate the religious and jurisprudential sources of the Mandatory Will, including the Quran (with an emphasis on verse ۱۸۰ of Surah Al-Baqarah), Tradition, social welfare, and jurisprudential rules such as the principle "al-Tasarruf al-Raiyati Ma'nut bil-Maslahah." It also precisely analyzes the rulings and conditions of the Mandatory Will, including the death of the parents of descendants before their grandparents, the deprivation of inheritance due to the presence of closer heirs, and the limitation of the Mandatory Will to one-third of the estate.

The findings of this research indicate that the Mandatory Will not only possesses legitimacy based on religious and jurisprudential sources but also, considering social welfare and the necessity of protecting descendants who are deprived of inheritance, can serve as a solution for achieving social justice in the Iranian legal system. In the Islamic Republic of Iran, in accordance with Article ۴ of the Constitution, both legal and religious capacities exist for the legislative establishment of the Mandatory Will. This article obligates lawmakers to adhere to Islamic norms and avoids confinement to any specific sect, thus providing a suitable context for the legislation of this institution. Ultimately, this study suggests that, by modeling the experiences of Islamic countries, this institution should be legislated in Iranian laws to effectively protect the rights of orphans and descendants deprived of inheritance and to take a step towards reducing economic and social inequalities.

Keywords: Mandatory Will, Obligatory Will, Inheritance, Discretionary Will, Comparative Jurisprudence.