التعارض بين التعيين والتقدير في الوصية: دراسة تأصيلية تطبيقية

Abstract EN

This paper addresses contradictory forms, interrupted or uninterrupted, mentioned in the will as expressed by the testator about the bequest by estimation or specification.

Related instances in the books of Fiqh are explored and all forms of contradiction between estimation or specification of the bequest are investigated and methodically classified.

Contradiction is of two types: Contradiction in multiples wills or within the will itself.

The former can be settled by the words of the testator that eliminate contradiction or an action that explains the intention, otherwise by compromising the contradictory forms.

The will cannot be abrogated except in cases where no reconciliation can be reached.

Reconciliation can be applied in the following cases: One is entitled to get the bequest if the testator mentions a specific object followed by a further specific object.

One is entitled to get biggest item in the bequest if the testator mentions a specific item followed by a further specific item that is less or more in value according to the choicest position of scholars, in case he ignores the later wills.

However, if he knows the date of the will he should abide by the recent one.

If a specific object is mentioned in the will followed by an estimated one or the other way round, he is entitled to get the biggest in value.

If the name of the receiver of the same object differs, both must share the object.

If a specific or estimated object is designated to a person and another object to someone else, each should get their share.

If the one-third of the will is too narrow for the persons to bequeath, they should share, unless expanded by the heirs.

With contradictory statements in the will, if the recipient is the same he is entitled of the bequest, if a specific or estimated object is designated for a recipient, he is entitled to het the biggest in value of concluded in a later dates, otherwise he should obtain both of them.

Should one bequeath a specific and estimated object, he would get the biggest in value.