Can I leave my estate by will to anyone I choose in Tunisia?

Answer by the AvoConsulte editorial team

No, if Tunisian succession law applies to you. A will (wasiya) can only dispose of up to one third of the estate, and a bequest to someone who is already an heir only takes effect if the other heirs agree after the death.

The one-third rule

The rest of the estate goes to the legal heirs in the shares set by the Personal Status Code. You can leave up to one third to anyone who does not inherit: a friend, a charity, a stepchild. Anything above one third needs the heirs' consent after the death.

Leaving more to an heir

A bequest to an heir, for example an extra share for a daughter, has no effect unless the other heirs approve it after the death. That is why many parents consider lifetime gifts instead.

Mandatory bequest for some grandchildren

The Code also provides for a mandatory bequest (wasiya wajiba) in favour of the children of a son or daughter who died before, or at the same time as, the grandparent. It is capped at one third and its conditions are specific, so check them with a lawyer or notary.

Alternatives and form

• Lifetime gifts (hiba): you can give property during your life, for example the bare ownership of a house while keeping the right to live in it. A gift must be made by official deed and, for registered land, only takes effect once entered in the land register. A gift made during the giver's final illness is treated as a bequest.
• Form of the will: a will must be an official deed or a document written, dated and signed by you. An official deed drawn up by notaries is the safest, because it is easier to prove.
• Foreign nationals: under Tunisia's Code of Private International Law, a bequest is governed by the testator's national law, and your succession may be too, which can change the answer completely.

In every case, funeral costs and the deceased's debts are paid first, then the will is carried out within its limits, and only then is the rest shared between the heirs.

For your own situation, consult a lawyer or notary; the AvoConsulte directory lists lawyers registered with the ONAT by city.

This answer was written by the AvoConsulte editorial team and gives general information only: it is not legal advice. For your own situation, consult a lawyer.

Sources

1. Code du Statut Personnel - Livre XI : Du testament (art. 171 à 177) Jurisite Tunisie
2. Code du Statut Personnel - Livre XI : Du testament (art. 178 à 180) Jurisite Tunisie
3. Code du statut personnel – Du legs obligatoire (art. 191 à 196) Jurisite Tunisie
4. Code du statut personnel – De la donation (art. 201 à 206) Jurisite Tunisie
5. Code de droit international privé – Les successions (art. 54 à 56) Jurisite Tunisie