Elements of a will : 4 the rules of the will

The essential elements of a will in Egypt are defined by a unique legal framework that blends civil law with the foundational principles of Islamic Sharia. A will, known as a *wasiyya*, is a legal instrument that allows an individual to specify how a portion of their assets should be distributed after their death. While the concept seems straightforward, its application in Egypt is subject to strict rules and limitations. Understanding these elements is crucial for anyone looking to create a valid and enforceable will. At Alzayat Law Firm, our expert inheritance solicitors guide clients through this process to ensure their final wishes are legally protected.

The Core Legal Pillars of a Valid Egyptian Will

For a will to be recognized by an Egyptian court, it must be built upon several foundational pillars. The absence of any of these elements can render the document invalid and open to legal challenges. These pillars ensure the will is a clear, voluntary, and legally sound expression of the testator’s intent.

1. The Testator (Al-Musi)

The testator is the person making the will. To create a valid will, the testator must be of sound mind and legal age. The law requires them to be a “free taxpayer,” meaning they are a competent adult acting without coercion. Consequently, a will created by a person who is legally not qualified or a minor is not considered valid. The testator must also be acting voluntarily. Any will created under duress or manipulation can be challenged and nullified by the courts. These are critical components of the elements of a will in Egypt.

2. The Beneficiary (Al-Musa Lahu)

The beneficiary is the person or entity designated to receive assets under the will. A beneficiary can be a specific person or a public entity, such as a charity. However, there is a crucial distinction between heirs and non-heirs. Under Egyptian law, which is based on Sharia principles for this matter, you cannot use a will to give an additional share to someone who is already a mandatory heir. The law strictly forbids this to prevent favoritism among legal heirs. Therefore, a will is primarily a tool to bequeath assets to non-heirs, such as friends, distant relatives, or charitable organizations.

3. The Bequeathed Property (Al-Musa Bihi)

This refers to the specific assets being transferred through the will. Several conditions apply to these assets. First, the property must be something that can be legally owned and transferred. Second, the testator must be the rightful owner of the asset at the time of their death. You cannot bequeath property that belongs to someone else. The property must also be valuable and clearly defined in the will to avoid ambiguity. This level of detail is a key part of the elements of a will in Egypt.

4. The Formula or Form (Al-Sigha)

This refers to the form and expression of the will. A will can be made verbally or in writing. However, a written will that is properly signed and witnessed is far more secure from a legal standpoint. If a testator is mute, they can make a valid will through clear gestures or writing. The language must be clear and express a definitive intent to bequeath an asset after death (e.g., “I bequeath my house to…” or “Pay him this amount after my death…”).

The Overarching Limitation: The One-Third Rule

The single most important limitation on the elements of a will in Egypt is the one-third rule. A testator can only dispose of a maximum of one-third of their total estate through a will. The remaining two-thirds of the estate must be distributed according to the mandatory shares defined by law. Any bequest that exceeds this one-third limit is not automatically valid. It becomes dependent on the unanimous consent of all the mandatory heirs. If they agree to the excess amount, it can be executed. If even one heir objects, the will is only enforced up to the one-third limit.

A testator can only bequeath up to one-third of their estate through a will; the rest is for mandatory heirs

When Is a Will Considered Obligatory or Prohibited?

Islamic jurisprudence, as discussed by institutions like the Al-Azhar Fatwa Global Center, categorizes wills based on their purpose. A will can be considered obligatory if it is used to document outstanding debts or religious duties (like unpaid Zakat). Conversely, it is considered prohibited if its purpose is to harm the mandatory heirs or to bequeath assets for an unlawful purpose. Understanding these nuances is crucial for ensuring your will is respected. For more on related tax matters, see our guide on inheritance tax levels.

Further context on Islamic jurisprudence can be found in academic resources such as the Journal of the American Academy of Religion.

Frequently Asked Questions

1. What happens if I write a will leaving all my property to one child?

An Egyptian court will void this will. Your child is a mandatory heir and is already entitled to a specific share by law. You cannot use a will to give an additional share to a mandatory heir or to disinherit other mandatory heirs. The court will ignore the will and distribute the estate according to the fixed legal shares.

2. Can a non-Muslim foreigner create a valid will for their assets in Egypt?

Yes. A non-Muslim has more flexibility in their will. They are not bound by the Sharia distribution rules. However, their will must still be validated in an Egyptian court and must not violate Egyptian public order. The one-third rule is generally considered a matter of public order, so it is often applied even to non-Muslims as a guideline to prevent the complete disinheritance of the family.

3. What is the difference between an heir and a beneficiary of a will?

In the context of Egyptian law, an “heir” is a person who has a mandatory, legally protected right to a share of the estate (e.g., a child or spouse). A “beneficiary” is a person or entity who is not a mandatory heir but is named in a will to receive a gift from the one-third discretionary portion of the estate. The key is that you cannot be both a mandatory heir and a beneficiary of a will for the same estate.

4. Do I need a lawyer to draft my will in Egypt?

While it is not legally mandatory, it is highly advisable. The legal requirements are complex. An experienced solicitor ensures that all elements of a will in Egypt are correctly included, that the language is clear, and that the will is compliant with the one-third rule and public order. This dramatically reduces the risk of it being challenged or invalidated later.

5. If all heirs agree, can we ignore the will and distribute the assets differently?

accordingly Yes. The heirs can unanimously agree to a different distribution. If all competent adult heirs consent, they can create a formal settlement agreement that overrides the will’s instructions or even the mandatory shares. However, this requires the consent of every single heir without exception. This illustrates that the rules are in place primarily to protect the heirs themselves.