ABSTRACT: The Iranian Civil Code comprehensively addresses the legal framework of testamentary bequests (wasiyyah) within Articles 825 to 860. The term wasiyyah in Persian embodies dual meanings: as a passive participle, it denotes the subject of the bequest (mawsi bih), while as a verbal noun, it signifies the act of making a bequest (Isā’). These nuanced interpretations find reflection in Qur’anic verses, such as Surah An-Nisa (4:12), which discusses bequests and debts, and Surah Al-Ma’idah (5:106), which emphasizes the requirement of testimony by two just witnesses upon the act of bequeathing. From a jurisprudential perspective, a bequest constitutes the gratuitous disposition of ownership or usufruct over a tangible asset, effectuated posthumously in favor of a designated beneficiary. This legal act allows the testator to allocate property rights after death, either directly or indirectly. This paper critically examines various forms of bequests under Iranian law, distinguishing between testamentary transfer (wasiyyah tamliki) and testamentary covenant (wasiyyah ‘ahdi). A particular focus is dedicated to the contentious and complex issue of the necessity of acceptance for bequests made in favor of a foetus, exploring doctrinal positions and statutory provisions that govern the representation and legal capacity of the unborn in testamentary contexts. The study aims to elucidate the theoretical foundations and practical implications of foetal acceptance in wills, thereby contributing to a more coherent understanding of inheritance law in Iran.
SUMMARY: 1. Types of Bequest and Their Legal Characteristics – 2. Legal Analysis of Testamentary Transfer and the Status of a Foetus – 3. Views Regarding the Necessity of Acceptance in Testamentary Transfer for Incapacitated Individuals – 4. Conflicting Views Regarding Testamentary Transfer as a Unilateral Legal Act or a Contract – 5. Conditions for the Acceptance of a Foetus in Testamentary Bequests – 6. Necessity of Acceptance by the Foetus in Testamentary Bequests – 7. The Necessity of Acceptance by the Foetal Embryo in Testamentary Bequests – 8. The Necessity of Acceptance by the Foetus in Testamentary Bequests – 9. Critique of the Opinions – 10. Conclusion.
1. Types of Bequest and Their Legal Characteristics
Bequest is divided into two types: testamentary transfer (tamliki) and testamentary covenant (‘ahdi).
- Testamentary Transfer (Wasiyyah Tamliki): This type of bequest signifies the transfer of ownership of a tangible asset or its usufruct from the testator (mawsi) to another person gratuitously after the testator’s death.
- Testamentary Covenant (Wasiyyah ‘Ahdi): In this type, the testator commissions one or more individuals to perform or manage specific affairs. Therefore, if the effect of the bequest is to create an obligation for the parties, it is termed a testamentary covenant, and when the effect of the bequest is the direct transfer of ownership, it is called a testamentary transfer.
Testamentary covenant itself is divided into two types:
- Covenant over persons: in which the testator designates someone as an executor (wasi) for the upbringing and care of a ward (mawla ‘alayh).
- Covenant over property: which relates to financial bequests.
2. Legal Analysis of Testamentary Transfer and the Status of a Foetus
Testamentary transfer is divided into two categories:
- General Testamentary Transfer: where there is no requirement for acceptance from the beneficiary (mawsi lah).
- Testamentary Transfer to Specific Individuals: in this case, the question of whether acceptance is required is a debated topic among jurists and legal scholars.
3. Views Regarding the Necessity of Acceptance in Testamentary Transfer for Incapacitated Individuals
Some scholars believe that testamentary transfer for incapacitated individuals is a unilateral legal act (iqa’). This means that if the transfer is the result of the testator’s offer (ijaab), there is no need for acceptance from the beneficiary. In fact, the bequest comes into existence with the testator’s declaration (Insha’), and its realization does not require the beneficiary’s acceptance. If the beneficiary or beneficiaries do not accept the bequest, this does not mean that the bequest is void, as non-acceptance is not listed as one of the grounds for invalidity in the laws related to bequests.
In legal discussions, the concept of acceptance (qubul) is recognized as one of the fundamental pillars of contracts (‘uqud). However, within the context of testamentary transfer (wasiyyah tamliki), the necessity of acceptance might introduce legal complexities. Many legal scholars hold the view that every form of acceptance in legal instruments is not interpreted in the same way, and this point does not necessarily mean that acceptance in testamentary transfer can be considered as transforming it into a contract. For example, in the case of a commercial bill of exchange (baraat tejari), where “acceptance” signifies its acknowledgment but does not necessarily lead to the formation of a contract, it demonstrates that even such an acceptance cannot be regarded as constituting a legal agreement. In this regard, according to some, the issuance of a testamentary transfer operates according to similar rules, and its susceptibility to acceptance cannot cause it to be transformed into a contract. In this context, it should be noted that the beneficiary’s acceptance in testamentary transfer does not inherently have the capacity to alter the nature of the bequest as a unilateral legal act (iqa’). Based on this, the beneficiary’s acceptance can be considered similar in level to the acceptance of inheritance. In other words, by expressing consent and acceptance, the beneficiary is essentially acting to establish and formalize their ownership under the influence of the testator’s will. From the perspective of one author, the creation of a bequest (Insha’ wasiyyah), albeit incomplete, generates a form of proprietary authority over one’s property that allows the beneficiary to recognize their interests by declaring consent and thereby complete their ownership. For this reason, it can be concluded that testamentary transfer is a conditional unilateral legal act contingent upon the testator’s death, because the subject of the bequest only gains validity upon the beneficiary’s acceptance.
4. Conflicting Views Regarding Testamentary Transfer as a Unilateral Legal Act or a Contract
There are differing opinions among legal scholars regarding whether testamentary transfer to specific individuals can be categorized under contracts or should be considered a unilateral legal act, providing varying answers. For example, one group believes that a bequest is only recognized as a contract when the attribution of ownership is the result of voluntary agreements between the testator and the beneficiary. This theory emphasizes that even if the date of transfer of ownership is prior to acceptance due to specific laws or the terms of the agreement, this matter should justify the transfer of ownership. Article 827 of the Civil Code clearly confirms the necessity of the beneficiary’s acceptance in testamentary transfer, stating under this article that “Ownership by virtue of a bequest is not realized except with the acceptance of the beneficiary after the testator’s death.” This text highlights several legal points, including the necessity of acceptance for the realization of the bequest. In the same vein, another author emphasizes that based on the wording of the article and its history in jurisprudence, the conclusion is that testamentary transfer should be considered among contracts, and the theory of it being a unilateral legal act appears difficult to support.
5. Conditions for the Acceptance of a Foetus in Testamentary Bequests
The conditions related to a foetus subject to bequest are generally similar to those applicable to a foetus recognized as an heir, which has been extensively discussed in inheritance law. Here, a brief overview of the key aspects of these conditions is provided. In the context of testamentary transfer (wasiyyah tamliki), the discussion involves three primary parties: the testator, the subject of the bequest, and the beneficiary — the individual in whose favor the bequest is made. According to Article 826 of the Civil Code, the testator is the person who makes the bequest, and the beneficiary is the individual for whose benefit the bequest is made. Therefore, this article focuses explicitly on the beneficiary, who in this case is the foetus.
Without doubt, the validity of a bequest for a foetus is universally accepted. Essentially, a bequest constitutes a transfer of rights and assets from the testator to the beneficiary upon the testator’s death, similar to the transfer of property to heirs. The foetus, recognized legally as beneficiary, has the capacity to inherit and thus is entitled to the bequest. However, the validity of the bequest is conditional upon the beneficiary meeting certain requirements at the time the bequest becomes effective, making them entitled to the bequeathed property. These conditions are addressed in two relevant articles of the Civil Code: Article 850, which states that the beneficiary must exist and be capable of owning the bequeathed property; and Article 851, which confirms that a bequest to a foetus is valid but qualifies the foetus’s ownership on their live birth.
From these two provisions, it is clearly inferred that the moment of creating the bequest must coincide with the foetus’s conception having occurred, and the foetus must be born alive. These two conditions have been comprehensively discussed in succession law. In cases where a woman carries multiple foetuses, the bequest remains valid for all foetuses provided they are born alive, and the bequeathed property is divided equally among them. For instance, if one foetus is born alive and another is stillborn, the bequest is valid only for the live-born foetus, and their share passes to their heirs. No distinction is made between male and female foetuses in this distribution, unless specifically stipulated in the will to the contrary.
Various juristic opinions have been expressed on this topic. For example, Shahid Thani emphasizes that if several foetuses come into existence, the bequeathed property is to be equally divided among them regardless of gender differences. Similarly, jurists such as Allameh Hilli and the author of “Bolughat al-Fuqaha” have noted this point. According to Article 853 of the Civil Code, if there are multiple and definite beneficiaries, the bequeathed property must be equally distributed among them unless otherwise specified by the testator.
An important consideration is that if a foetus is stillborn, the bequest becomes void, meaning the bequest is deemed never to have taken effect. However, if the foetus is aborted due to a criminal act, Article 853 dictates that the bequeathed property transfers to the foetus’s heirs, unless the crime legally prevents inheritance. Issues concerning doubt about the foetus’s life at birth and disputes over the timing of conception are covered in detail within inheritance law. Articles 876 and 877 of the Civil Code provide that if there is uncertainty about life at birth, inheritance provisions do not apply, and in cases of disputed timing of conception, the legal evidences established for proving lineage should be considered.
6. Necessity of Acceptance by the Foetus in Testamentary Bequests
Previously, we concluded that testamentary transfer (wasiyyah tamliki) is regarded as a contract and therefore requires the acceptance of the beneficiary (moosi lahu) as one of its essential elements. Since the bequest is made in favor of a foetus, the question arises as to whether the foetus, as the beneficiary, is able to express acceptance of the bequest. In other words, is acceptance required, and if so, which party among the stakeholders is obliged to declare it?
The Civil Code makes no explicit reference or direct statement on this issue and remains silent in this regard. However, legal analysis indicates that testamentary transfer, as a prominent example of civil rights exercising over the foetus, can be divided into two scenarios: first, bequests for general categories or to unspecified persons, where acceptance by the beneficiary foetus is not possible; and second, bequests for specified beneficiaries, where acceptance is both possible and necessary. In the former case—commonly known as testamentary bequests to general titles or non-enumerated individuals—declaration of acceptance is not obligatory. Conversely, in the latter case, where specific beneficiaries are designated, acceptance is an undeniable component.
From the perspective of some jurists, the rationale for the absence of a requirement for acceptance in the first case is grounded in the impossibility of expressing acceptance on behalf of the foetus. Hence, these types of bequests are classified alongside those not necessitating acceptance. Opposing views argue that even if the foetus is unable to provide acceptance directly, it remains possible for the foetus to act through legal substitutes—such as guardians or representatives—who can perform the acceptance on its behalf. This standpoint is based on the recognition that the foetus holds a set of rights as a beneficiary and that certain representatives possess the legal capacity to act in this context.
The issue at hand is the examination of representing the foetus’s legal position in different situations, both prior to and after birth. While the foetus cannot act directly at present, it is expected that parents or a legal proxy might perform acceptance on its behalf. In other words, if acceptance of the bequest on behalf of the foetus is possible, then the requirement for acceptance logically follows.
Ultimately, extant viewpoints can be categorized as follows: one group asserts that the necessity of acceptance is valid based on the existing circumstances and therefore insists that acceptance must occur wherever feasible. Another group contends that even if the foetus lacks the capacity to accept by virtue of being unborn, the bequest in its favor is not valid regardless, and thus acceptance is unnecessary.
Generally, these discussions represent a critical dimension within the domains of inheritance and testamentary law that demand careful, nuanced consideration. Given the significance of the foetus’s rights as a legal claimant, appropriate legislative and juridical measures should be enacted to ensure these vulnerable rights are effectively protected. Emphasizing reforms in laws and regulations concerning testamentary transfers, alongside comprehensive consideration of all legal aspects, could substantially strengthen the rights of the foetus and promote justice throughout legal processes.
7. The Necessity of Acceptance by the Foetal Embryo in Testamentary Bequests
The issue of acceptance in testamentary bequests made in favor of the foetus is among the most complex and challenging matters in the fields of inheritance and testamentary law. Some jurists hold the view that acceptance in relation to the foetus is not necessary under any circumstances. Their reasoning stems from the fact that prior to birth, the foetus cannot act as a legal representative (qā’im maqām), and accordingly, the question of acceptance cannot arise even after birth. From this perspective, if the foetus is born alive and subsequently dies, its heirs may rightfully exercise ownership over the bequeathed property without the need for acceptance. This viewpoint also draws support from statutory provisions and juristic statements which explicitly affirm that “a testamentary bequest for the foetus is valid, but ownership is conditional upon live birth.” It is inferred from this wording that there is no explicit requirement for acceptance, and the silence on this matter implies the absence of any obligation for the foetus or its legal representatives to manifest acceptance.
Sheikh Ansari, irrespective of whether the beneficiary (moosi lahu) is a foetus or an individual born subsequently, maintains that when the testator executes a will and subsequently passes away, ownership of the bequeathed property is transferred to the beneficiary through the expression of intent (offer — ‘ijab’). In fact, in this situation, only the consent of the beneficiary analogous to acceptance in a gift (hiba) is operative and effectuates the property transfer. He further stresses that this acceptance constitutes one of the factors effecting the transfer of ownership. Should the beneficiary die prior to acceptance, the heirs of the beneficiary, according to the predominant view in Shi’a jurisprudence, may accept the testamentary bequest. This applies regardless of whether the beneficiary’s death occurs before or after the testator’s demise. This doctrine rests on the principle that ownership rights created by the testator’s offer (ijab) are transferable and may be inherited.
One author, critiquing this theory, points out that the fundamental problem particularly arises when the bequest is made in favor of a foetus, as the foetus prior to birth has no legal guardian who can act on its behalf to accept the bequest. In such cases, it may be asserted that the absence of need for acceptance resembles the case of bequests to unspecified persons. Hence, if the foetus dies immediately after birth before having an opportunity to accept the bequest, its heirs can obtain ownership rights to the bequeathed property without acceptance. Those advocating that acceptance is unnecessary for testamentary bequests to the foetus do not differentiate between a born human and a foetus and maintain that in both cases, the testamentary act (iqā’) itself suffices without the need for acceptance. They also observe that the foetus, by virtue of lacking legal guardianship, cannot perform acceptance directly, thereby negating the necessity of such acceptance.
The author of “Hadāeq”—after presenting the views of those requiring acceptance—asserts that in principle, the essence of testamentary bequest does not mandate acceptance, and no definitive religious texts impose this obligation. Furthermore, some texts explicitly indicate the lack of necessity for acceptance. He emphasizes that testamentary bequests in favor of the foetus are among cases where, according to many scholars, approval from the beneficiary or his guardian is not required. When challenged with the argument that since the foetus has a guardian, why cannot the guardian accept the bequest on its behalf, the response is that in public affairs, a general guardian (the ruler) exists; therefore, the question arises whether the ruler cannot accept the bequest?
Similarly, the author of “Jawāhir” discusses various opinions regarding the conditions of acceptance by the foetus in testamentary bequest and their critiques, ultimately concluding that acceptance does not appear to be a necessary condition in bequests made to the foetus.
8. The Necessity of Acceptance by the Foetus in Testamentary Bequests
In this domain, some scholars maintain that acceptance is unequivocally necessary. This viewpoint is grounded in the premise that not only after birth but even before birth a foetus can be conceived as a legal representative (qā’im maqām), and consequently, acceptance from this perspective is both possible and therefore obligatory. Many Islamic jurists have deliberated upon whether acceptance is required for the foetus as the beneficiary (moosi lahu). The majority concur that acceptance is compulsory, since testamentary transfer (wasiyyah tamliki) constitutes a type of contract, and it makes no difference whether the beneficiary is a foetus, a child, or an adult. As noted in previous discussions, none of the jurists have explicitly stated that such acceptance may be effected prior to birth by the foetus’s legal guardian acting on its behalf. Nonetheless, a number of legal scholars have addressed this point and argue that acceptance of the testamentary transfer can indeed occur before the foetus’s birth, which may even be advantageous for its interests.
There is no doubt or controversy regarding the foetus’s capacity as a legal representative after birth, since newborn children are entitled to representation through various institutions such as guardianship (wilayah qahri), trusteeship (wasayah), and custody (qiyamah), which manage their affairs. However, in the prenatal phase, since the foetus does not yet possess independent life and its legal personality remains uncertain and precarious, conceptualizing legal representation for it encounters certain doubts. Nevertheless, the foetus may be recognized as a party holding rights and obligations. In this context, assuming the foetus possesses the capacity to own property, there arises a necessity for an individual who can manage its assets and affairs on its behalf.
Interestingly, it is incongruous to acknowledge the foetus’s legal capacity on the one hand and simultaneously cast doubt on the notion of its legal representation on the other. Under civil law, if the foetus is classified within the category of minors under legal age, its representatives may be assumed to act as its legal guardians. Ultimately, Article 103 of the Law of Personal Status explicitly dispels any uncertainty, stipulating that “Beyond the cases in which appointing a trustee (amin) is necessary according to civil law, the amin shall also be designated in the following instances:
- For managing the inheritance share possibly accruing to a foetus from the deceased’s estate, in the absence of a guardian (wali) or trustee (wasi) for the foetus.
- For administering properties allocated for public uses that lack management.
In brief, this article not only permits the conception of legal representation for the foetus prior to birth but also assigns the administration of its assets successively to the guardian (wali qahri), trustee (wasi), and trustee (amin). Although this provision explicitly refers to inheritance rights of the foetus, it is evident that the notion of inheritance is not narrowly defined here. Given the uniformity of criteria and the content of the article, its applicability extends to all assets legally belonging to the foetus. Several authors in civil law have cited this provision accordingly. Moreover, Dr. Katouzian asserts that “The provisions of Article 103 of the Law of Personal Status indicate that the foetus also has a guardian or trustee, and may have an appointed amin for managing its assets. Therefore, testamentary bequests to the foetus are possible under any circumstance, and there exists no justification for exempting it from general legal rules.” He further illustrates the point with several examples, such as when a grandfather or uncle makes a bequest for the foetus stipulating, “If Ms. Maryam proceeds to childbirth and the newborn is named, the apartment registered under title number 66/1214 shall belong to the newborn.” In such a scenario:
If the foetus has a father or grandfather, the guardian (wali) may accept the testamentary bequest on its behalf.
If the father or grandfather is deceased and a custodian (qayyim) has been appointed for the foetus, the custodian shall accept the bequest.
In cases where the father or paternal grandfather has appointed a trustee (wasi), the trustee is authorized to accept the testament.
Moreover, if a trustee (amin) has been designated to manage the foetus’s assets, this trustee shall accept the will.
In this context, reference to Article 103 of the Law of Personal Status and the general provisions regarding the incapacity of legally incapacitated persons holds significant importance, as these matters directly affect the power to accept a testamentary bequest. It should be noted, however, that a custodian is not formally appointed for the foetus; rather, an individual is designated as an amin (trustee) who performs duties akin to those of a custodian. Dr. Emami also highlights that, given the statutory provisions on guardianship (wilayah) and custody (qayyamat), as well as Article 103 of the Law of Personal Status, the amin is also empowered to accept the bequest prior to the foetus’s birth.
9. Critique of the Opinions
In light of the foregoing arguments and the prevailing juristic opinion that explicitly affirms the contractual nature of testamentary bequest and the necessity of acceptance by the beneficiary (moosi lahu), even if the beneficiary is a foetus, the first viewpoint (denying the necessity of acceptance) is rendered untenable. Although the second opinion appears more reasonable than the first, it remains insufficient. Therefore, the third opinion—which attributes legal representation to the foetus both before and after birth and consequently considers acceptance mandatory—is the most coherent and logically sound.
Overall, the issue of acceptance by the foetus in testamentary bequests demands thorough and careful examination, as from both legal and jurisprudential perspectives, the matter encompasses multiple dimensions that may yield varying conclusions. Considering the points discussed above, it can be concluded that acceptance by the foetus is not only possible but in certain cases necessary, and the rights and interests of the foetus should always be fully safeguarded.
10. Conclusion
This study highlights the intricate legal and jurisprudential dimensions surrounding testamentary bequests made in favor of the foetus under Iranian law. While the Iranian Civil Code and Islamic jurisprudence recognize the validity of such bequests conditional upon the foetus’s live birth, divergent views persist regarding the necessity of acceptance by the foetus or its legal representatives. The dominant opinion in Shi’a jurisprudence aligns acceptance as an essential element akin to contractual consent, emphasizing that the foetus should be considered a legal subject capable of representation both before and after birth. Statutory provisions, notably Article 103 of the Law of Personal Status, support this existential legal representation by appointing guardians, trustees, or an amin to manage the foetus’s rights and accept testamentary gifts on its behalf prior to birth.
Conversely, opposing views challenge the feasibility of pre-birth acceptance, citing the foetus’s lack of independent legal personality and guardianship before birth. However, this paper argues that such concerns are mitigated by the provisions enabling legal representation and by analogy to other protected incapacitated parties, thus underscoring both the possibility and in many cases the necessity of acceptance.
Ultimately, the acceptance of testamentary bequests in favor of the foetus is not merely a theoretical issue but holds substantive legal significance in safeguarding the rights and interests of the unborn. The nuanced approaches identified reveal the need for a coherent legal framework that balances doctrinal principles with practical protections. This study thereby contributes to a comprehensive understanding of inheritance law in Iran and illuminates avenues for future legislative and scholarly attention to strengthen the legal status of the foetus within the ambit of testamentary succession.
