التخارج في الوصية دراسة فقهية مقارنة بالقانون اليمني د. هادي حزام الصرابي(1)

Abstract

Abstract

The paper discusses the topic of "Excluding a Beneficiary from a Will Deed by Consensus Consent", a jurisprudential study in comparison with the Yemeni law, where the research aims to know what is meant by exclusion in the will, its legitimacy, evidence and conditions, the cases of the will, and the forms of the exclusion, as a solution to conflict and discord as well as the ways to categorizing its issues. The research included an introduction and four topics that show In the first topic what is meant by the exclusion in the will which is: for the heirs to reconcile to the removal of the a beneficiary or more from the will in exchange for money paid by all or some of the heirs from the estate or other sources to the beneficiary. It is clear in the second topic that the exclusion is permissible and that it is a type of reconciliation between partners or heirs in their funds, and it became clear in the third topic that there must be general conditions for the exclusion, such as the eligibility of the exclusion parties and the ownership of what is being excluded, and that it is known, valid to be compensable, and with the consent of the two parties. It also became clear that there must be conditions in the will in which the exclusion takes place, to be within the limits of a third or less, for non-heirs, and in permissible matters that are not forbidden. It was found in the fourth study that the will must be valid or dependent on the permission of the heirs, so that it becomes valid if the heirs allow it; but if they refused the exclusion, it is rejected or what exceeds the third. If there is no dispute or disagreement, then the will is taken out before the distribution of the inheritance in order to avoid being imperfect or incomplete, then the estate is distributed according to the beneficiaries. It has been shown that the exclusion in the will has many forms and methods of dividing it, illustrated with examples for each form, and that it is a solution for disputes and conflicts between the beneficiary and the heirs.

In conclusion, the researcher recommended the need to strengthen religious conviction by raising awareness of the penalty for depriving the beneficiary person of the will, and he also recommended working on amending the civil law by introducing a chapter in the exclusion and explaining its controls and provisions. Moreover, he recommended the importance of raising community awareness of the exclusion in the will, as a means of resolving disputes and conflicts between the heirs and the beneficiaries.