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105
International Journal of Law
www.lawjournals.org
ISSN: 2455-2194
Received: 05-07-2023, Accepted: 22-07-2023, Published: 07-08-2023
Volume 9, Issue 4, 2023, Page No. 105-110
Legitime portie rights in testamentary grants based on the civil code and compilation of Islamic law
Ridha Hayati1, Sri Walny Rahayu2, Yusri2
1 Student, Faculty of Law, Syiah Kuala University, Banda Aceh, Indonesia
2 Associate Professor, Faculty of Law, Syiah Kuala University, Banda Aceh, Indonesia
Abstract
Legitime portie is a certain part of the inheritance that cannot be written off by an heir. This is also regulated in Islamic Law
which is called ashab alfurudh or dzawil furudh. However, it was found that there was a testamentary grant giving which gave
rise to a dispute, where the heirs disagreed with the will grant, the provisions in the will grant deed were considered to take
away legitimacy rights. The purpose of this study is to explain how the right of legitime portie and the legal protection if the
grant of a will violates, takes or reduces the rights of the legitime portie. This research is a normative juridical research with a
statutory approach, a case approach, and a comparative approach. Data collection was carried out through document studies
and interviews with resource persons. The data obtained were analyzed qualitatively using inductive analysis instruments. The
results of the study show that both in Islamic and western law do not justify (forbid) someone's testament that harms the heirs
who should receive an inheritance. In the Civil Code, a violation of a testamentary grant against a legitime portie will result in
legal consequences depending on the legitimacy's stance, that is, if the legitimacy can simply accept the fact without going to
court or filing a lawsuit to the court on the basis of its absolute share. Meanwhile, in Islamic law there is a limit on the amount
that can bequeath 1/3 (one third) of his property. The maximum limit for granting 1/3 is a rule of Islamic law which is intended
to provide legal protection to the recipients of the inheritance from the legal actions of the heir to the recipient of the grant.
Keywords: Legitime portie, will grant, legitimacy rights
Introduction
Indonesia is a State of Law, is expressly stated in Article 1
paragraph (3) of the third amendment of the 1945
Constitution. Means that the law is placed as the highest
reference (law supremacy) in the administration of the State
and its government, so that the government will regulate the
law to ensure the welfare of society (Yusri, 2014, 113-116)
[25]. As for the Indonesian legal system of inheritance, it is
regulated in Book II of the Civil Code starting from Articles
830-1130, besides, it is also regulated in the Compilation of
Islamic Law.
There are three principles contained in the Civil Code of
inheritance law, namely: 1) the individual principle
(personal principle) in which the heir is an individual, 2) the
bilateral principle, where a person not only inherits from the
father but also vice versa from the mother, as well a brother
inherits from his brother and sister, 3) the equality principle,
meaning that heirs whose degree is close to the heir cover
heirs who are farther in degree. To simplify the calculation,
classifications of heirs are made (Gede Suwarni, Putu
Budiartha, and Dwi Arini, 2020, 149) [6].
Civil Code inheritance law applies a principle, that if
someone dies (heir), then immediately by law, his rights and
obligations are transferred to his heirs, as long as these
rights and obligations are included in the field of property
law that means rights and liabilities can be valued in money.
The civil inheritance law system has a distinct characteristic
from other inheritance law systems, which requires the
inheritance of the heir to be divided among those who are
entitled to the property immediately (Sibarani Sabungan,
2015, 5) [19]. Basically, those who are granted to become
heirs are people who have blood relations with the heir and
the wife/husband of the heir are still alive when the heir
dies. Therefore, there are two ways to obtain inheritance in
civil inheritance law, namely Statutory Provisions
(Abintestato) and Testament (Rudito Sulih, 2015, 3) [18].
All branches of law including civil law have the same basic
characteristics, which are regulatory in nature and there is
no element of coercion. However, for civil inheritance law,
it turns out that there is an element of coercion in it. The
element of coercion contained in civil law is contained in
the provisions for granting legitime portie rights to certain
heirs for a number of heirs' inheritance (Dewi Sartika
Utamu, 2016, 97) [4]. Legitime portie is "a certain part of the
inheritance that cannot be erased by the person who left the
inheritance. The right to legitime portie only arises when a
person really appears as an heir as determined in the law of
inheritance” (Maman Suparman, 2017, 90) [13]. The absolute
part in the Civil Code is called legitime portie, whereas in
Islamic law the absolute part is called dzawil furud/aṣhab
al-furūḍ.
Provisions regarding parts of inheritance in Islamic law
have been contained in detail in the legal basis, which is
contained in Islamic law in QS. An-Nisā verses 11, 12, and
176. There are at least six parts that have been determined
for aṣhab al-furūḍ (heirs who receive inheritance rights with
certain parts), namely ½, ⅓, ¼, ⅙, ⅛, and ⅔. Of the three
verses in QS. An-Nisā, it can be determined that the number
of aṣhab al-furūḍ is 13 people (Gamal Achyar, 2016, 21) [7].
Inheritance law in Islam is a law that regulates the
distribution of inheritance, regulates the portions received
from inheritance for parties who have rights to these assets
(Israfil, Muzakir, and Aminullah, 2021, 46) [9]. Inheritance
will occur if there is a cause of death, the death of the heir is
one of the most basic elements in inheritance (Azharuddin,
Hamid Sarong, and Iman Jauhari, 2015, 21) [2]. There are
three conditions for inheritance to occur, namely: 1) There
are people who die (heir), 2) There are people who are still
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106
alive, as heirs who receive inheritance when the heir dies
(heir), 3) There are a number of assets that must be
inherited. left by the heir (inheritance) (Maman Suparman,
2017, 16) [13].
In Islamic law, there is no time limit for the ownership of
assets. Likewise the assets obtained by the heirs through
inheritance which means assets become the property of the
heirs without any time limit. However, Islamic Law
recommends providing benefits to others, either by waqf,
grants, or alms which is the personal awareness of the owner
of the property (Sri Walny Rahayu and Widiya Fitrianda,
2020, 41) [21].
Regardless of the determination of the absolute share, the
law also does not prohibit heirs from making wills and
making grants. It is possible that an inheritance is inherited
based on a will and based on law. With a will, the heir can
appoint someone or several heirs, the heir can give
something to the heir(s). The awarding of these grants must
fulfill several provisions both in positive and Islamic law.
However, in reality there are grants made after the owner of
the grant dies, commonly referred to as a will grant, which
sometimes results in a testamentary grant giving rise to heir
disputes, where there are heirs who disagree with the
existence of this will grant, they assume that giving grants
after the owner of the property has died is not a necessity,
because every person who has died, the assets left behind
are the rights of the heirs both in a straight line up and
down.
This article was written to expand and enrich previous
research related to the fulfillment of the right of legitime
portie to the granting of wills. In this study, the authors
focus on the discussion on legitime portie arrangements in
the granting of wills based on the perspective of the Civil
Code and Islamic Law. As for this research, it will explain
how the right of legitime portie if the grant of a will
violates, takes or reduces the rights of the legitime portie
and its legal protection.
Research Method
The study is a normative juridical type, namely legal
research conducted by examining literature or secondary
data alone (Soerjono Soekanto and Sri Mamuji, 2009, 13-
14) [20]. The research approach used in this study is the
statutory approach that is carried out by examining and
analyzing all relevant laws and regulations related to the
legal issues being handled (Bambang Sunggono, 2015, 91)
[3]. Then the case approach, carried out by conducting a
study of cases related to issues that have become court
decisions, which have permanent legal force (Syamsudin,
2007, 58) [23] and a comparative approach is one way that
can be used in normative research to compare one of the
legal institutions of one legal system with another which has
a similar legal system. With this comparison, elements of
similarities and differences between the two legal systems
can be found (Jhonny Ibrahim, 2013, 313) [10].
The data collection technique in this study was literature
study, using interviews and documentations. The data
obtained were analyzed qualitatively using inductive
analysis instruments.
Results and discussion
a. Setting absolute section in the civil code
The absolute share is a part of the inheritance that must be
given to the heirs who are in a straight line according to law.
The heir is not allowed to determine something, either as a
gift between the living or as a testament (Article 913 of the
Civil Code). The legitimator must be the statutory heir in a
straight line up or down. The purpose of having a legitime
portie regulation is to protect heirs from the actions of
irresponsible heirs (Efendi Parangin, 2014, 84-91) [5].
The legitime portie regulated in the Civil Code adheres to
the Roman system. This is regulated in Article 913 of the
Civil Code, as follows: "An absolute part is a part of the
inheritance which must be given to the heirs in a straight
line according to law, on which part the deceased is not
allowed to determine anything, either as a gift between
those who are still alive, and as a testament". So the
meaning of Article 913 of the Civil Code above is: 1) An
absolute share is part of an inheritance which cannot be
reduced by giving during life or giving by testament. 2) The
absolute share must be given to the heirs in a straight line up
or down. The straight line down is the children and their
descendants and children outside of wedlock who are
recognized as legitimate, while the straight line up is the
parents and all their ancestors. Therefore, the legitime portie
is only reserved for heirs in a straight line up and down, so
that the wife or husband, siblings (uncles or aunts) are not
entitled to the legitime portie. Those who are entitled to
legitime portie are: 1) Those in a straight line down (Article
914 Civil Code), 2) Those in a straight line up (Article 915
Civil Code), Children out of wedlock who are recognized as
legitimate (Article 916 Civil Code) (Efendi Parangin, 2014,
84-91) [5].
The regulation regarding the legitime portie is a limitation
on the freedom of the testator to make a will according to
his own will. According to the law, even if the husband and
wife get a share equal to the size of a legitimate child as the
heir, they are not entitled to an "absolute share", because the
husband or wife are not included as heirs in a straight line
either downwards or upwards. A legitimary has the right to
claim or relinquish his legitime portie without being
together with other legitimate heirs. Prosecution of an
"absolute share" can only be carried out because of a grant
or testamentary grant which results in a shortage of an
absolute share in an inheritance after an open inheritance
(Article 920 of the Civil Code). Prosecution can be made
against all gifts made by the heir, either in the form of
erfstelling (appointment as heir), gifts by testament
(testament grant), as well as against all grants made by the
heir while the heir is still alive which is called a schenking
grant which results in reduced the absolute share (Maman
Suparman, 2017, 92) [13].
As for the protection of legitimate portie demands, it is
regulated in Article 921 of the Civil Code. In principle, the
demand for legitimacy must be met, if necessary, by cutting
grants or legislatures. The method of protection provided by
Article 921 of the Civil Code is by determining the amount.
Legitime portie must be calculated, namely by: 1) Counting
all grants that have been given by the testator during his
lifetime, including grants given to one of the legitime heirs.
2) The amount is added to the existing inherited assets. 3)
Then deduct the debts of the heir. 4) From this amount, the
amount of the legitimacy of the legitimacy is calculated
(those who demand the legitime portion). 4) To determine
how much is actually received by the legitimacy concerned
(Maman Suparman, 2017, 94-95) [13].
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107
b. The absolute part of Islamic law
The absolute part of Islamic law is called dzawil furudh.
Dzawil furudh (ashab al-furudh) is an heir who has a part
that is later determined in the Qur'an, namely those who get
the right ½,1/4, 1/8, 2/3, 1/3, and 1/6. The heirs who are entitled
to get dzawil furudh rights are: Furudh ½. The heirs who
receive this furudh are: 1) Daughters if she is alone. 2)
Sister if (biological or fatherly) he is the only one. 3)
Husband, if the heir does not leave children. Furudh ¼. The
heirs who receive this furudh are: 1) Husband, if the heir
(wife) leaves the child. 2) Wife, if the heir (husband) does
not leave children. Furudh 1/8. The heirs who receive this
furudh are: Wife, if the heir leaves children. Furudh 1/6. The
heirs who receive this furudh are: 1) Father, if the heir is a
child. 2) Grandfather, if the heir does not leave any children.
3) Mother, if the heir leaves the child. 4) Mother, if the heir
leaves several siblings. 5) Grandmother, if there is no heir,
leave. 6) A brother or sister. Furudh 1/3. The heirs who
receive this furudh are: 1) The mother, if she inherits with
the father and the heir does not leave any children or
siblings. 2) Brothers or sisters, if there is more than one.
Furudh 2/3. The heirs who receive furudh are: 1) Daughters
if there are more than two people. 2) Siblings or father, if
there are two or more people (Mardani, 2017, 37-38) [14].
As for the similarities in regulation of Legitime Portie in
Civil Code and Islamic Law, that both Legitime Portie and
Dzawil Furudh regulate absolute rights that must be
received by heirs, where these rights have been determined
by law or Al-Qur'an so that it is not permissible disturbed.
The absolute rights that have been determined must be
fulfilled by the heir or who distributes the inheritance.
Differences in the Civil Code and Islamic Law in setting the
absolute rights of heirs are found in the portion or amount of
rights granted to heirs, and also the heirs who are
determined differently between the Civil Code and Islamic
Law. In the Civil Code, Legitime portie is given to heirs
straight up and down, while the wife/husband and siblings
(uncles and aunts) do not get Legitime portie rights.
However, in Islamic law the wife/husband, along with their
siblings are given the rights of Dzawil Furudh, or there are
inheritance rights for them which cannot be simply
removed.
Will grant provisions
a. Wills grant provisions in the civil code
Legaat is also called a testamentary grant, which is a special
testamentary determination in the form of granting several
objects of a certain type to one or more persons. The
recipient of the legate is called the legate, not the
testamentary heir, because he does not have the right to
replace the heir, but he has the right to claim the heirs so
that the legacy is carried out (Efendi Parangin, 2014, 78) [5].
Based on Article 966 of the Civil Code, it states that a
certain object can only be used as an object of a
testamentary grant if it is inherited by the heir. If an heir
bequeaths a certain object belonging to another person, then
the will will be void. This can involve an object that is
owned by the heir or legateary, even by a third party
(Maman Suparman, 2017, 140) [13]. There are differences
between grants and testamentary grants, namely: a grant is a
gift for life, while a will grant is a gift with a will and only
takes effect after the giver dies. According to the form there
are three kinds of testaments, namely: Openbaar testament,
Olographis testament, closed (secret) testament (Efendi
Parangin, 2014, 80-81) [5].
As for the revocation and withdrawal of the will, it can be
done based on the will of the testator. Revocation of a will
can be done expressly, for instance a will or testamentary
gift is contrary to what was made, later or because of a
certain action of the recipient that makes the bequest change
his mind. Arrangements regarding the revocation and
termination of the will are regulated in: Express revocation
of wills (Articles 992-993 Civil Code), silent revocation
(Article 993 Civil Code), revocation due to exile (Article
996 Civil Code), loss of wills (Article 999-1001 Civil Code)
(Maman Suparman, 2017, 130-131) [13].
b. Wills grant provisions in Islamic law
According to Article 171 letter g of the Compilation of
Islamic Law, a grant is a gift of an object voluntarily and
without compensation from someone to another who is still
alive to own (Mardani, 2017, 125) [14]. In language a will
means a message, while in terms it means a message about
something good, which must be carried out after someone
dies. In a special sense, a will is a message for someone to
replace/spend the assets left behind if he has died, in a good
way that has been determined (Zahratul Idami, 2018, 127)
[26].
As for the will to grant property to other people after the
bequeathed person dies means doing commendable deeds.
Through a will, a person can provide assistance to another
party, regardless of whether the assistance is given for
religious motivation or for purely worldly reasons. In this
case, one thing that needs to be known is that the will given
must not harm or neglect close family (heirs). There is a
limit to the maximum number of permissible wills that must
be seen as an effort to protect the rights of relatives so that
they are not abandoned in the future due to giving too large
a will. The maximum amount of the will is one-third of the
assets owned by the person making the will. That is net
assets after deducting debts if the person who made the will
left assets, even if the person who died bequeathed all of his
assets, then the implementation should not exceed one third
of the assets left behind. Rasulullah said, which means: "In
fact, the will is one third, while one third is already a lot"
(Helmi Karim, 1993, 97-125) [8].
Meanwhile, if there is a testamentary grant that exceeds one
third of the assets left behind, it can be resolved in one of
the following ways: 1) Reduced to a limit of one third of the
inherited assets. 2) The willingness of all the heirs who at
that time were entitled to receive an inheritance was asked
whether they were willing to accept the excess of one third,
if the heirs expressed their sincerity, then granting a will that
exceeds one third was lawful. There are also other
provisions related to testamentary grants, including that
after the grantor dies, the beneficiary of the will must state
explicitly that he has received the will. This can only be
done after the giver of the will has died, because when the
giver of the will is alive, the will can be revoked at any time
(for biological children). If the beneficiary of the will dies
after the beneficiary of the will dies, but the beneficiary of
the will has not expressly stated that he has received it, then
their heirs are still entitled to it instead (Helmi Karim, 1993,
125) [8].
The Compilation of Islamic Law regulates the issue of
canceling wills, namely in Article 197 of the Compilation of
Islamic Law, namely: Wills become void if the prospective
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beneficiary based on a judge's decision that has legal force
remains punished, Wills become void if the person
appointed to receive the will, will becomes void if the
bequeathed item is destroyed (Ahmad Rofiq, 2000, 458) [1].
The author in this study took one of the cases that discussed
the problem of disputes over testament grants, namely the
Decision of the Religious Courts Number
329/Pdt/G/2020/PA.Batg, where in this case there was a
difference of opinion between the heirs and the beneficiary
of the will grant. In this case, it was found that the heir did
not fulfill the will made by the testator so that the recipient
of the will made a claim in court.
In the Decision of the Religious Courts Number
329/Pdt/G/2020/PA.Batg, the Judge here resolved the case
using the Compilation of Islamic law. Where will the
testamentary grant that has been made by the heir/maker of
the testamentary grant deed be carried out. However, the
implementation of the testamentary grant is not fully or not
guided by the amount of the price granted in the
testamentary grant deed. The judge cannot decide on a
testamentary grant in accordance with the contents of the
deed because the family or the heir concerned does not
approve of the will grant made by the previous heir. The
family considers that the will never existed, because the heir
during his lifetime never mentioned or told about the will
that he made. Therefore, here the judge cannot carry out the
grant in accordance with the deed, but the grant made by the
heir is still carried out in accordance with the provisions
contained in the provisions of the Compilation of Islamic
Law.
The grant is carried out and submitted in the amount of 1/3
(one third) of the property of the grantor of the will. If you
look at the whole of the personal savings belonging to the
testator, the amount that can be given to the beneficiary of
the will (the mosque) is only Rp. 117,000,000.00- (one
hundred and seventeen million rupiah) or the equivalent of
1/3 (one third) of the bequest's savings. Wills cannot be
submitted in accordance with the deed, namely Rp.
200,000,000.00 (two hundred million rupiah) because this
amount exceeds 1/3 of the total savings of Rp.
352,000,000.00 (three hundred fifty two million rupiah) and
the position in this case is that the heirs of the testator do not
give up the will. If the heirs agree or give up the will, the
testament can be carried out in accordance with the
testamentary grant deed, even though the total price donated
exceeds 1/3 (one third) of their assets.
The limitation on the granting of this will is also due to the
fact that there are absolute heirs or legitime portie who are
entitled to the heir's property. In the Civil Code and Islamic
law, the rights of the legitime portie heirs may not be
violated. So of all the heir's assets in savings of Rp.
352,000,000.00, only Rp. Only 117,000,000.00 can be
donated, the remaining Rp. 235,000,000.00 will be handed
over to the heirs of the testator, because their rights cannot
be contested.
As for the Compilation of Islamic Law, it states that heirs
cannot cancel the testamentary grant from the heir/probate,
because the Compilation of Islamic Law regulates the
provisions of the grant which states that any grant that has
been given cannot be withdrawn, so that the implementation
of the will must be fulfilled by the heir. Heirs may not
refuse or cancel the grant as long as the grant given is
appropriate and does not harm the heir.
Arrangement of legitime portie in granting wills based
on the perspective of civil code and compilation of
Islamic law
Legitime portie is part of the heir's inheritance after death
which must be given to the heirs, the intended heirs are heirs
of straight line descent according to law. So the heir may
not stipulate something while still alive or through his will
or give grants to anyone for his inheritance which can harm
the heirs that have been determined by law (Article 913
Civil Code).
Fulfillment of the right of legitime portie is carried out when
all the obligations or dependents of the heir have been
fulfilled, such as debts, fidiah, wills, testamentary grants and
so on. The heirs of the heirs are required to fulfill their
obligations first before the assets left by the heirs are
distributed based on the rights and portions of each.
Meanwhile, if the heir before he died made a bequest, then
the bequest must be carried out under certain conditions.
The granting of a will is not prohibited in the Civil Code,
provisions regarding testamentary grants are also contained
in the Civil Code arrangements. In the Civil Code there are
no special provisions governing limits on the granting of a
will, in the Civil Code it only explains that if the granting of
a will harms the heirs, in this case the legitime portie heirs,
the heirs can demand to cancel the will that has been made
by the heir. In the Civil Code, the limitation regarding
testamentary grants refers to assets that will be distributed to
heirs because there is a legitime portie that has been
determined by law. Legally, if the testament violates the
legitime portie, it will become null and void, but there is a
rule made by the Supreme Court that if there is a violation
of the heir's legitime portie, if the heir feels that he has not
been harmed, then his nature can be canceled, if the heir
does not sue its share to the court, the deed can be
considered valid (Yanuar Suryadini & Alifiana Tanasya
Widiyanti, 2020, 251). [24]
The characteristics of the legitime portie are as follows: 1)
The legitimator can demand the cancellation of the heir's
actions which are detrimental to the legitime portie. 2) the
heir, however, may not be beschikken regarding the legitime
portie. Meanwhile, based on Article 921 of the Civil Code,
the absolute share is calculated in the following way: 1)
Counting all grants that have been given by the heir during
his lifetime, including grants given to one or the absolute or
legitimate heirs; 1) The amount is added to the existing
inherited assets; 3) Then, minus the heir's debts; 4) From the
results of the addition and subtraction above, then the size of
the legitime portion of the absolute heirs demanding their
share is calculated (Maman Suparman, 2017, 94) [13]. The
amount of the legitime portion obtained is the amount
actually received by the absolute or legitimate heirs
concerned. In the case of a violation of a testament to a
legitimacy portion, it will result in legal consequences, but it
depends on the legitimacy's attitude, that is, if the legitimacy
can simply accept the fact without suing the court or filing a
lawsuit in court on the basis of its absolute share (Yanuar
Suryadini & Alifiana Tanasya Widiyanti, 2020, 252 -253)
[24].
Whereas the Compilation of Islamic Law does not
specifically discuss testamentary grants, but rather
emphasizes wills because the implementation of wills can
only be carried out if the bequest dies. According to Article
171 letter f of the Compilation of Islamic Law states that a
will is the gift of an object from the heir to another person or
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109
institution which will take effect after the heir dies. So it can
be said that a will is a gift from a person or institution in the
form of goods or objects, receivables or benefits that can be
owned by the person receiving the will after the person
making the will has passed away. Furthermore, in the
Compilation of Islamic Law it is stated that a will to heirs is
only valid if it is approved by all heirs (Article 195
paragraph 3 of the Compilation of Islamic Law). This
agreement is made orally before two witnesses or in writing
before two witnesses or before a Notary (Article 195
paragraph 4 Compilation of Islamic Law). Regarding the
object of the will, Article 194 of the Compilation of Islamic
Law stipulates that the property that can be bequeathed must
be the right of the heir (paragraph 2). Ownership of the
property can only be carried out after the testator dies
(paragraph 3). Article 195 of the Compilation of Islamic
Law states that a maximum of one-third of an inheritance is
permitted only from inherited assets unless all heirs agree
(paragraph 2). Statement verbally before two witnesses or in
writing before two witnesses or before a Notary (paragraph
4) (Muhammad Husni, 2019, 160) [16].
In both Islamic and western law, both of them do not justify
(forbid) someone's will that harms the heirs who should
have inherited it. The Civil Code emphasizes that: "all the
assets left by a person who has passed away belong to his
heirs according to the law, only for that matter with a will
no existing provisions have been taken". Article 874 of the
Civil Code, which explains the meaning of a will or
testament, indeed already contains a condition, that the
contents of the statement (will) may not conflict with
important statute of limitations, for example located in the
articles concerning the legitime portie, namely the portion of
inheritance that is has been determined to be the right of the
heirs in the slender line and cannot be erased by the person
who left the inheritance. As for protecting the heirs,
especially dzawil furudh from the possibility of not getting
the inheritance because the deceased willed it to other
people, Islamic law limits the maximum amount of property
that al-mushi can bequeath to someone or several people he
wants. The maximum limit for the intended will is 1/3 (one
third) of his property after all debts of the heir have been
settled. If al-mushi bequeaths more than a third of the assets
he has, then the heir has the right to file a lawsuit with the
court to cancel al-mushi's will. Or at least they can submit
objections to the party appointed by al-mushi as the
executor of the will (al-washi), and al-washi is justified in
changing the will that exceeds one-third of al-mushi's assets.
Wills in Islamic Law are basically only addressed to other
people outside the heirs, or especially to heirs who for other
reasons such as mahjub (obstructed by other heirs) do not
get inheritance (Muhammad Amin Suma, 2004, 130-131)
[15].
As for the rights of the legitime portie protected by the Civil
Code, namely by the existence of Article 921 of the Civil
Code. Likewise in Islamic Law, there are restrictions on the
granting of wills, wills can only be given 1/3 of the assets
left by the testator. This restriction is made to protect the
rights of ashabul furudh or dzawil furudh from the arbitrary
actions of the heir in making a will. In granting wills, both
the Civil Code and Islamic law use both theories of legal
protection (Philiphus M Hadjon, 1987, 21) [17], namely
preventive protection which is legal protection that is
preventive in nature before a violation occurs (Lukmanul
and Sri Walny, 2017, 449) [12]. In the Civil Code and
Compilation of Islamic Law there are rules related to
deterrents in the implementation of testamentary grants with
the procedures and rules for making wills and in their
implementation. Likewise, repressive legal protection that
functions to resolve disputes when disputes occur is also
applied, where there are rules governing dispute resolution
if one party demands or does not want to hand over the
object of the will grant, the solution that must be decided by
the judge has been prearranged.
Conclusion
Both Islamic and western law do not justify (forbid)
someone's testament that harms the heirs who should
receive the inheritance. In the Civil Code, a violation of a
testamentary grant against a legitime portie will result in
legal consequences depending on the legitimacy's stance,
that is, if the legitimacy can simply accept the fact without
going to court or filing a lawsuit to the court on the basis of
its absolute share. Whereas in Islamic Law there is a limit to
the maximum level of property that may be bequeathed, a
person can only bequeath 1/3 (one third) of his property.
The maximum limit for granting 1/3 is a rule of Islamic law
which is intended to provide legal protection to the
recipients of the inheritance from the legal actions of the
heir to the recipient of the grant.
The recommendation of this article is for those who want to
make a will or testamentary grant and it is hoped that they
must have a good understanding about the provisions for
making a testamentary grant due to the case can only be
carried out when the giver passed away, and if the grant
exceeds the provisions, it will affect the heirs who left
behind and trigger disputes in the future.
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