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Bequests as an Instrument for Accommodating Inheritance Rules: Israel as a Case Study

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Freedom of civil testation available, since 1965, to Israeli Muslims within some of the sharīʿa courts, has replaced the family waqf as an instrument for circumventing the compulsory rules of inheritance (ʿilm al-farāʾid). This marks in many respects the victory of custom over the sharīʿa. On the basis of an analysis of bequests probated in the sharīʿa courts, I conclude that the bequest is being used as a means to prevent fragmentation of the patrimony and to preserve it in the hands of the testator's sons or, in their absence, other male agnates, in units as complete and economically sound as possible. While excluding his wife and daughters from the estate, the testator secures their economic well-being by allocating them subsistence allowances and residential rights, that is, customary maintenance out of the estate. At the same time, the making of bequests demonstrates the capacity of women to dispose of property. The concern for orphaned grandchildren is another incentive for making a will.

Affiliations: 1: The Hebrew University of Jerusalem


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