Wills (Testamentary Bequests) in Kuwaiti Law — Conditions, Rules & Sharia Limits

Definition and Sharia Foundation

A waṣiyya (bequest) is a gratuitous disposition of property or usufruct that takes effect after the testator's death. The Personal Status Law defines it as a disposition of the estate deferred until after death.

The legality of bequests is established in the Quran, Prophetic tradition, and scholarly consensus. Some jurists deem it obligatory for those with obligations known only to themselves, and recommended for those wishing to donate part of their wealth to charity.

Elements and Validity Conditions

A valid bequest requires four elements:

Bequests may be made orally, in writing, or through intelligible gestures by those unable to speak. Notarization is recommended to ensure enforcement and prevent disputes.

The One-Third Limit

Kuwaiti law caps bequests at one-third of the net estate (after debts and funeral expenses), protecting heirs' rights:

• Bequests within the third: executed without heirs' approval
• Bequests exceeding the third: the excess requires heirs' approval after the testator's death
• If only some heirs approve: the bequest takes effect against the approving heirs' shares only

The wisdom behind this limit stems from the Prophet's guidance to Sa'd ibn Abi Waqqas: "One-third — and one-third is much. It is better to leave your heirs wealthy than to leave them dependent on others."

Obligatory Bequests for Grandchildren

Kuwaiti law adopted the obligatory bequest (waṣiyya wājiba) system to protect grandchildren who are excluded from inheritance because their parent predeceased the grandparent:

• Eligible: Children of a son who died before his father (grandchildren) — male and female
• Amount: What their parent would have inherited if alive, up to one-third maximum
• Priority: The obligatory bequest takes precedence over voluntary bequests
• Condition: The grandchildren must not have already received an equivalent gift from the grandparent

The obligatory bequest operates by force of law without requiring an express bequest — a modern juristic innovation addressing potential injustice to orphaned grandchildren.

Bequests to Non-Heirs vs. Heirs

Bequests to Non-Heirs

Bequests to non-heirs are valid within the one-third limit without requiring heirs' approval. The beneficiary may be a natural person, legal entity, or charitable cause (mosques, hospitals, charities).

Bequests to Heirs

Bequests to heirs are not valid without the other heirs' approval after the testator's death, based on the Prophet's statement: "There is no bequest for an heir." The rationale is that bequeathing to an heir disrupts the Sharia inheritance system by favoring one heir over others.

Heirs' post-mortem approval is treated as execution of the bequest, not a new gift — with implications for fees and registration.

Revocation and Nullity

A bequest is a non-binding act during the testator's lifetime, revocable at any time:

• Express revocation: By statement or writing — such as "I revoke my bequest"
• Implied revocation: By disposing of the bequeathed property in a manner indicating revocation — such as selling, gifting, or consuming it

A bequest becomes void if: the beneficiary dies before the testator, the bequeathed property is destroyed, the testator permanently loses capacity due to insanity until death, or the beneficiary rejects the bequest after the testator's death.

Appointing a Guardian (Waṣī) for Minors

A special form of bequest is the appointment of a testamentary guardian (īṣā') — entrusting someone with guardianship over one's minor children after death:

• Chosen guardian: Appointed by the father in his will to care for minor children and manage their property
• Eligibility: Legal age, sound mind, trustworthiness, capability, and no conviction for a crime of moral turpitude
• Powers: Managing minors' property, supporting them financially, and acting in their interest — under court supervision
• Removal: The court may remove a guardian for mismanagement or loss of eligibility

If no guardian is appointed, the court designates one from relatives or others based on the minor's interest.

Execution Procedures

Bequest execution after the testator's death proceeds through several stages:

1. Proving the will: Presenting the notarized document or proving it through witnesses before the Personal Status Court
2. Estate inventory: Cataloguing all assets and determining debts and obligations
3. Debt settlement: Debts and funeral expenses are paid first
4. Bequest execution: The bequest is fulfilled from the remaining third
5. Distribution: The remainder is distributed to heirs according to Sharia inheritance shares

Order of priority in the estate: funeral expenses → debts → bequests (up to one-third) → inheritance.

Frequently Asked Questions

Can a bequest be made to a non-Muslim?

Yes, a bequest to a non-Muslim is valid provided the subject is legally ownable under Sharia. The beneficiary need not be Muslim.

Can a will be contested?

Yes, heirs may challenge a will on grounds of forgery, failure to meet validity conditions, or the testator's lack of capacity at the time of making it. Claims of duress or fraud are also valid grounds.

Is making a will religiously obligatory?

It is obligatory for those with obligations known only to themselves (debts, trusts), recommended for those wishing to donate to charity, and discouraged when heirs are poor and the estate is modest.