Mandatory Will in Islamic Jurisprudence and Civil Law of Afghanistan

Abstract

Imam Abu Hanifah did not consider a will to be obligatory on a person who left his own property except in a situation where he has a right that cannot be fulfilled in any other way except through a will. A number of jurists and hadith scholars such as Saeed Ibn Musayyib, Hassan Basri, Daoud Zahiri, Ishaq Ibn Rahwiyeh, Ibn Hazm Zahiri and Imam Ahmad Ibn Hanbal say that a will is obligatory for relatives who do not have the right to inherit from the heir.  According to the Hanafi jurisprudence, obligatory wills in Afghanistan's civil law are not intended to secure social interests, avoiding malice and envy - for grandchildren whose father dies during the grandfather's lifetime and cannot inherit from his grandfather according to the rules of inheritance, according to the second theory of the will to non-heirs relatives in the article 2182 to 2188 considering special conditions as obligatory. Obligatory wills are recognized as prior to other wills. And the beneficiaries of obligatory wills are as follows: 1- for a person who belongs to the first class and is the son of a girl. 2- For sons and those who are related to the deceased by a male. 3- For a person who died with his father or mother in an accident. And  4- For a child whose death was pronounced while his parents were alive. The obligatory will follow some principles, namely,any principle that has made its subsidiary part of the inheritance cannot be opposed to a subsidiary whose principle is someone else's, and the division of the share of each parent (boy or girl) among its branches, which includes both sexes, is divided according to the reference, such as Haz Al-Anithan.