Document Type : Research Article
Author
Assistant Professor, Department of Islamic Jurisprudence and Principles of Islamic Law, Faculty of Theology and Islamic Studies, University of Ilam, Ilam, Iran.
Abstract
Testamentary will is one of the significant legal and jurisprudential institutions whose implementation requires the appointment of an executor or multiple executors. One of the complex issues in this area concerns the death of the executor, or some of the executors, after the death of the testator and before the execution of the will. Where there is a single executor and he dies, there is no disagreement among jurists and legal scholars that the Islamic judge is responsible for carrying out the will through the appointment of an auxiliary trustee. However, in cases involving multiple executors, the central question is whether it is necessary for the court or the Islamic judge to appoint an auxiliary trustee to replace the deceased executor and join him to the remaining executors, or whether such appointment is unnecessary. If the testator has appointed the executors independently, the death of one executor does not affect the authority of the others, and there is no need to appoint an auxiliary trustee or a new executor. By contrast, where the executors have been appointed jointly, there is a divergence of opinion among Imami jurists and legal scholars, a divergence that has been exacerbated by the legislature’s silence on the matter. A survey of jurisprudential and legal sources reveals two principal views in this regard: the first maintains the necessity of appointing an auxiliary trustee in order to continue the joint execution of the will, while the second considers the execution of the wi
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