Understanding Wills in Kuwait Law
Dispute Resolution / Kuwait
In this article, we delve into the intricacies of wills, both obligatory and optional, given their significance and their connection to gift contracts.
Law Update: Issue 364 - Healthcare & Life Sciences Focus
Zakareya Al Othman Senior Associate,Dispute Resolution
The Kuwaiti law refers to a will is as the disposition of one's estate, including assets remaining after death. In this article, we delve into the intricacies of wills, both obligatory and optional, given their significance and their connection to gift contracts.
Under Kuwait law, wills are subject to the provisions of Islamic Sharia law and relevant statutes. They can be disputed in court on grounds related to its validity, evidence of existence, legality, and revocation by the testator prior to demise.
The default principle for wills is that they should benefit non-heirs or “beneficiaries”, as Kuwait law already defines the shares of each legal heir in the inheritance. The will is limited to one-third of the estate value after settling debts of the testator. The validity of a will which disposes of more than a third of the testator’s assets or benefits a legal heir shall be subject to the approval of the other heirs is essential. If only some of the heirs approve such will, this portion of the will exceeding one thirds or given to a legal heir shall be valid only vis-a-vis the approving heir(s), and as such to be deducted from their respective shares in the estate.
Kuwait law distinguishes between two primary types of wills:
Obligatory Will:Originally governed by Law No. 5 of 1971 Concerning Obligatory Wills, but later was integrated into Law No. 51 of 1984 regarding Personal Status.
An obligatory will comes into play when a deceased individual fails to make a will for the descendants of their child who passed away during their lifetime or simultaneously. The inheritance share owed to this child is then bequeathed from the estate, within the limits of one-third. This is contingent that such descendant(s) is not already an heir and that the deceased did not gift, without consideration, this descendant(s) his share as per the obligatory will through alternative arrangement. In cases where the bequest is more than the required share, the surplus becomes optional. If less is bequeathed, the shortfall must be compensated. If the bequest is made to some heirs and not others, the excluded heirs are obligated to receive an equivalent share.
The obligatory will holds precedence over other types of wills, such as optional wills, and the remainder of the estate is subsequently distributed among the legal heirs.
Optional Will:For an optional will to be valid, it must be made verbally, in writing, or by an intelligible sign. The testator should be legally capable, accurately designate the beneficiary without doubt.
Optional wills can also be made for charitable purposes, including the establishment of mosques, charitable institutions, scientific organizations, and public interests.
Several conditions govern the validity of optional wills, including that they should not be rooted in sin or contrary to the law. In the case of non-Muslim testators, the will remains valid unless it violates Islamic law.
Revocation of a Will:Testators retain the right to fully or partially revoke a will, either explicitly or implicitly. Any action or conduct that suggests a will's revocation, whether by direct evidence or customary practices, is considered valid grounds for revocation.
Invalidity of a Will:A will becomes invalid if the beneficiary dies before the testator, or if a specific beneficiary passes away before accepting the bequest. Additionally, murdering the testator by the beneficiary, whether beneficiary was the principal perpetrator, an accomplice, or a witness who facilitated the act, renders the will invalid, as it contravenes the legal principle that prohibits inheritance for murderers.
Wills by foreigners (Non-Kuwaitis):Foreign individuals, whether resident in Kuwait or not, having assets in Kuwait, can bequeath all or part of their assets to their heirs or other beneficiaries, including non-heirs. However, the Kuwait law provided for specific conditions and laid down a certain framework for enforcing foreign wills within the country, even if the wills originate from jurisdictions with different legal systems or religious beliefs. As such, it is very important to understand such conditions and framework required by the Kuwaiti law in this regard to avoid having a foreign will being inapplicable and unenforceable in Kuwait. Fulfilling the wishes of the testator while keeping in mind the requirements of the Kuwaiti law may call for proper legal advice in advance and while enforcing the will.
In a recent development, we, at Al Tamimi & Co Kuwait, managed to successfully enforce a foreign will in Kuwait for one of our clients with an estate value exceeding two million Kuwaiti dinars (more than USD 6 mil).
Finally, we would like to highlight the connections and intersections between gift contracts and wills, emphasizing that, under Kuwait law, a gift can potentially transform into a will if certain conditions are met.
Specifically, if an individual disposes of an asset to one of their heirs while retaining possession and benefits for their lifetime, this disposition is treated as a post-mortem bequest, subject to the legal provisions governing wills, unless evidence to the contrary exists.
For further information,please contact Zakareya Al Othman.
Published in January 2024
