Dispositions Made During a Final Illness in the Light of the Egyptian Civil Code and the Civil Transactions Law

The Egyptian Civil Code and the Civil Transactions Law issued in the Kingdom of Saudi Arabia set out the grounds for acquiring ownership exhaustively, so that no other ground may be relied on in claiming to have acquired it. Nor may a court give judgment confirming ownership save on one of those grounds, or the judgment is vitiated by a breach of the law, as the Egyptian Court of Cassation has held. The Court held that "the grounds for acquiring ownership set out in the law are exhaustive under Articles 870 and following of the Civil Code: occupation, inheritance, bequest, contract, pre-emption and acquisitive prescription, besides the rules governing the fall of the hammer applicabled sales". Cassation, 26 June 1980, appeal 1077, year 47. Among those exhaustively enumerated grounds is the bequest.

Article 646 of the Civil Transactions Law provides that "the legatee acquires the property bequeathed, in accordance with the statutory provisions governing bequests". Article 915 of the Egyptian Civil Code provides that "bequests are governed by the provisions of Islamic law and the statutes issued in respect of them". By bequest is meant a disposition of the estate deferred until after the disposer's death. A bequest is valid and takes effect within the limit of one third of the estate after its debts are settled, whether made to an heir, to a non-heir, or to a person entitled to an obligatory bequest. Where it exceeds one third — even if the bequests are several — it remains valid, but does not take effect as against an heir unless the heir ratifies it after the deceased's death, being capable of gratuitous disposition and intending to ratify. If the heir does not ratify the excess, the bequest is reduced to one third. Where the deceased leaves no heir and is not indebted, the bequest is valid as to the whole of the property.

An important legal question arises concerning bequests: how far are the dispositions made by a person suffering a final illness valid, and are they to be treated as bequests or not? For the rights of an heir in the estate are affected by what the deceased bequeaths.

The final illness

The criteria settled for a final illness, as the Egyptian Court of Cassation has held, are "that the illness be of a kind in which death usually follows and in which the sufferer senses the nearness of their end, and that it end in their death. Where the illness extends beyond a year it is not treated as a final illness, however grave it may be and however unlikely recovery from it; and the sufferer's dispositions during that period are valid and do not constitute a case of final illness, save in the period in which the illness increases and its weight grows severe. For what counts is the period of severity followed by death." Cassation, 8 February 1984, appeal 1002, year 49. It is not required, then, that the sufferer be confined to bed continuously and settledly; it is enough that they be confined at the time the malady grows severe. Nor is it required that the illness affect the soundness of the sufferer's understanding or diminish their capacity to dispose.

An illness cannot be assessed as a final illness unless it ends in the sufferer's death, so that it cannot be known to be such until that result comes about. The importance of fixing the meaning of a final illness and of making its legal rule plain appears in this: a disposition issuing from a deceased suffering a final illness and intended as a gratuitous disposition is treated by the law as a bequest and governed by the rules of bequest. This protects the heirs, since a gratuitous disposition by the deceased during their final illness is permitted only within the limit of one third of the estate unless the heirs ratify it — on the footing that such a disposition is a bequest.

Article 916 of the Egyptian Civil Code provides that "every legal act issuing from a person during a final illness and intended as a gratuitous disposition is treated as a disposition deferred until after death, and the rules of bequest apply to it, whatever name is given to that disposition". The text is framed generally and gives the rule of bequest to every legal act issuing during a final illness — as the explanatory memorandum to the Egyptian Civil Code states — such as sale, gift, acknowledgment, release and other dispositions, so long as a gratuitous disposition was intended. The Civil Transactions Law lays down the same rule in Article 648: "every legal disposition issuing from a person during a final illness which is a gratuitous disposition, or an onerous exchange containing an element of undervalue, takes the rule of a bequest as to the gratuitous element or the measure of the undervalue in it". The intention to make a gratuitous disposition is presumed, as the Egyptian Civil Code and its explanatory memorandum provide; and "the heirs of the disposer must prove that the legal act issued from their predecessor while he was suffering a final illness, and they may prove this by every means; nor is the date of the instrument opposable to the heirs where that date is not established. Where the heirs prove that the disposition issued from their predecessor during a final illness, the disposition is treated as having been made gratuitously, unless the person in whose favour it was made proves the contrary. All this unless particular provisions provide otherwise", as the remainder of Article 916 of the Egyptian Civil Code provides.

The conditions on which the rule of bequest applies to a disposition made during a final illness

One: that it issued during a final illness

The jurists of Islamic law define a final illness as one in which death usually follows and with which death in fact connects. The courts incline, as we have said, to requiring that death occur and connect with the illness before a year has passed from its onset, so that where the illness extends beyond that without increasing or growing graver it is not treated as a final illness. Every legal act issuing from the deceased during a final illness and intended as a gratuitous disposition is deferred until after death and treated as a bequest.

The provision on a disposition issuing from the deceased during a final illness is general and is not confined to one legal disposition rather than another, as we have said, whatever its name. The burden falls on the heirs to prove the existence of a final illness in their predecessor's case, by every means, including testimony and presumptions. They must establish their allegation; and where they fail to do so, the disposition stands against them and binds them, and is not treated as a bequest.

An heir must, as the Court of Cassation has held, raise their challenge that the predecessor's disposition issued during a final illness in express and definite terms showing that the party relies on the disposition having issued during a final illness and having been intended as a gratuitous disposition, so that the rules of bequest apply to it. So long as the party has not raised that challenge before the trial court, they may not raise it for the first time before the Court of Cassation. Cassation, 13 February 1969, appeal 47, year 35.

Two: that the disposition was intended as a gratuitous disposition

The burden of proving that intention falls on the heir. Dr al-Sanhuri, in his treatise al-Wasit, takes the view that once an heir proves the disposition issued during a final illness, they have established a legal presumption that a gratuitous disposition was intended. For a person does not ordinarily dispose during a final illness save gratuitously, and it is rare, with death before their eyes, that they should intend an onerous exchange. That legal presumption may be rebutted, and the person in whose favour the disposition was made may displace it by proving that it was made by way of onerous exchange.

Drawing out the intention is a question of fact into which the Court of Cassation does not enter, so long as the facts the trial court has set out lead to the legal conclusion it has reached. Cassation, 16 April 1984, appeal 768, year 49.

All the foregoing is termed the concealed bequest, as against the overt bequest provided for in Article 917 of the Egyptian Civil Code and Article 648 of the Civil Transactions Law.