A Will Written in the United States or Canada and Inheritance in Jordan: What a Foreign Will Can Do and What the Law Decides
Many Jordanian and Arab Muslims living in the United States and Canada write a will there and feel reassured that it will settle the fate of all their assets, including an apartment or a plot of land in Jordan, only for the heirs to discover after the death that the will does not govern what is in Jordan in the way its author intended. The Jordanian Civil Code No. 43 of 1976 subjects inheritance and wills to the law of the deceased at the time of death, and the Jordanian Personal Status Law No. 15 of 2019 determines what a will is carried out in, what depends on the heirs' approval, and what is due by operation of law whatever the will says. That is why a review of the American or Canadian will by a lawyer in Jordan who specializes in Sharia cases, during its author's lifetime, is what reveals what the will will actually achieve in Jordan and what it will fail to achieve.
This article covers the Sharia-court system that governs the wills and inheritance of Muslims. The family matters of non-Muslims follow their own religious community councils and are not covered here.
1. Which Law Governs a Foreign Will When the Assets Are in Jordan
The question starts with the conflict-of-laws rules in the Jordanian Civil Code. Article 18 provides that inheritance, wills and all other dispositions taking effect after death are governed by the law of the deceased or the testator at the time of death. Article 26 settles the position of a person with two nationalities: a person who holds Jordanian nationality and the nationality of a foreign state at the same time is subject to Jordanian law. The result is that a Jordanian who acquired US or Canadian citizenship and kept Jordanian nationality has his will and his inheritance governed, as to their substance, by Jordanian law with respect to his assets in Jordan that come before the Jordanian courts.
The Civil Code adds two rules with a direct effect on these files. The first is that possession, ownership and other real rights are governed by the law of the place where the real property is located (Article 19), so the ownership and transfer of land or an apartment located in Jordan are governed by Jordanian rules. The second is that provisions of a foreign law designated by the conflict-of-laws rules are not applied if they contradict public policy and public morals in the Kingdom (Article 29).
For someone who holds only a foreign nationality, such as an Arab American or Arab Canadian of non-Jordanian origin who owns real property in Jordan, the conflict-of-laws rules intersect in his file with the jurisdiction of the Sharia courts and the public-policy limit, and determining the law applicable to his estate is itself a legal question that deserves consultation before any planning is built on it.
The lawyer also looks at the timing of the death: Article 327 of the Personal Status Law provides that its provisions do not apply to deaths that occurred before it came into force, and that those deaths are governed by the legislation in force at the time of death.
2. A Will in Jordanian Law Is a Disposition Taking Effect after Death
Article 254 of the Personal Status Law defines a will as a disposition of the estate taking effect after the testator's death. It is made by words if the testator is able to speak them, otherwise in writing, and if he is unable to do either, it is made by a known sign (Article 256). It becomes binding only on the beneficiary's acceptance, expressly or by implication, after the testator's death (Article 257). It is valid only if it takes effect after death, and it may be made subject to a condition (Article 266).
In this area the lawyer pays particular attention to Article 255, which treats dispositions made during a final illness with the intent of a gift or favoritism as a will and subjects them to its rules. A transfer of real property or a large sum of money to one of the children in the last days of the deceased's life may therefore be treated as a will, and so become subject to the one-third limit and to the heirs' approval. Heirs living abroad may only learn of such dispositions after the death, when the administration of the estate has already begun in Jordan, and challenging them then becomes part of a dispute over the whole estate.
3. The One-Third Limit and Bequests to an Heir: Where an American Will Differs from Jordanian Law
A testator may write his will in the United States or Canada on the assumption that he can distribute his assets as he wishes. Article 274 of the Personal Status Law sets three rules that overturn this assumption:
- A will is valid despite a difference of religion or nationality (Article 274(a)).
- A will is carried out within the limit of one third of the estate for a non-heir, and the will is not carried out in anything above one third unless the heirs approve it after the testator's death (Article 274(b)).
- A will in favor of an heir is not carried out unless the heirs approve it after the testator's death (Article 274(c)).
It follows that a will that leaves all the assets to the wife, treats sons and daughters equally, or gives the house to one of the sons is a will in favor of heirs, and it is not carried out in Jordan unless the heirs approve it after the death. The text ties the approval to the period after the testator's death, so, on its face, consent given by the children during their father's lifetime does not settle the matter. The effect of the approval when some heirs approve and others refuse is a point the lawyer assesses in light of the facts of the file; whatever part of the will is not carried out is distributed under the inheritance rules, and the real property may return with it to co-ownership among the heirs.
That is why the lawyer asks, in addition to whether the will is valid in form, about the status of each beneficiary: whether he is an heir or not, whether what was left to him exceeds one third, and which of the heirs is likely to refuse approval.
4. Difference of Religion: The Non-Muslim Wife and the Limits of a Will in Her Favor
Article 281(b) provides that there is no inheritance between people of different religions, so a non-Muslim does not inherit from a Muslim. This rule directly affects a family living in the United States or Canada in which the husband is Muslim and the wife is a woman of the People of the Book (kitabiyya). Under the Personal Status Law, the non-Muslim wife does not inherit from her Muslim husband, and the whole family may be relying on an American or Canadian will that makes her the sole heir.
A will in her favor is permitted, however, because a will is valid despite a difference of religion (Article 274(a)), and in this case the wife is not an heir, so the will in her favor is carried out within one third, and anything above that depends on the heirs' approval after the death. The gap between what the husband intended and what his wife will actually receive may be large, and assessing that gap in light of the makeup of the heirs and the location of the assets is what the lawyer examines in each file separately.
5. The Obligatory Bequest (wasiyya wajiba): A Grandchildren's Right That a Foreign Will Does Not Cancel
Article 279 provides that if a person dies leaving children of a son who died before him or with him, those grandchildren are entitled to a bequest in one third of his estate, in the amount and on the conditions set by that Article, provided it does not exceed one third of the estate. The grandchildren are not entitled to it if their grandfather left them by will, or gave them during his lifetime without consideration, the amount they would be entitled to; if he gave them less, the balance must be made up (Article 279(c)). Paragraph (e) of the same Article provides that the obligatory bequest takes priority over optional bequests in being paid out of one third of the estate.
A testator who set aside one third of his assets in his American will for a mosque, a charity or a friend, and who has grandchildren from a deceased son, may see that bequest reduced because the obligatory bequest is paid first out of the same third. The outcome varies with the makeup of the heirs and what the grandfather had already given the grandchildren, and it is a point the lawyer settles after reviewing the file.
6. Proving a Foreign Will and Revocation of the Will
A will's validity in its own country is not enough to ensure that it is acted on in Jordan. Article 18(2) of the Civil Code subjects the form of a will to the law of the testator at the time the will was made or to the law of the country where it was made, which opens the door to accepting the form of a will written according to the procedures of the country where it was written. Article 268 of the Personal Status Law, however, provides that when the will is denied, a claim based on a will or on its revocation after the testator's death is not heard unless official documents establish it. So if one of the heirs denies the will, whether the American or Canadian document counts as official documents in the sense accepted by the Jordanian courts becomes the decisive question, which the lawyer examines in light of how the will was notarized and authenticated.
Revocation of the will raises a similar issue. Article 258 allows the testator to revoke all or part of a will, provided the revocation is express and registered with an official body. A person who wrote a will in Jordan before leaving, then wrote a new will in the United States or Canada stating that all earlier wills are revoked, may leave his heirs two conflicting wills, and which one prevails depends on whether the revocation meets the conditions of that provision.
The Jordanian rules on all of this are the same whether the testator lives in the United States or in Canada. A will or other document made there, however, needs authentication before any Jordanian body accepts it, which the lawyer checks against the current instructions; the article on powers of attorney from the USA and Canada for use in Jordan covers this.
Practical note: An American or Canadian will may be written in terms that assume complete freedom of distribution, and a court there may issue orders concerning the estate. The effect of the foreign court's order in Jordan is a separate question connected to the rules on enforcement of foreign judgments in Jordan and to public policy, and it should not be assumed to be automatic. The lawyer reviews the wording of the will, how it was notarized and the position of the assets in Jordan before relying on it, because these elements vary from one file to another, and it merits a review of the case or consulting a specialist lawyer.
7. What a Foreign Will Can Do and What Jordanian Law Decides
The following table compares what a testator may expect from an American or Canadian will with what the Jordanian provisions decide:
| Issue | What the testator may expect from a foreign will | What Jordanian law decides | Basis |
|---|---|---|---|
| The law governing the substance | The law of the country where the will was written | The law of the testator at the time of death, and Jordanian law for a person who holds Jordanian nationality together with a foreign nationality | Civil Code, Articles 18(1) and 26 |
| The form of the will | Valid because it was written according to that country's procedures | Its form may be accepted under the law of the testator at the time the will was made or the law of the country where it was made | Civil Code, Article 18(2) |
| Proving it when an heir denies it | The signed document is enough | A claim based on a will is not heard on denial except with official documents | Personal Status Law, Article 268 |
| A will in favor of a non-heir | Carried out in full | Carried out within one third; anything above depends on the heirs' approval after the death | Personal Status Law, Article 274(b) |
| A will in favor of an heir (the wife, one of the sons, equal shares for sons and daughters) | Carried out as written | Not carried out unless the heirs approve it after the death | Personal Status Law, Article 274(c) |
| The non-Muslim wife | Inherits under the will | Does not inherit because of the difference of religion; a will in her favor is valid within one third | Personal Status Law, Articles 281(b) and 274(a) |
| The children of a deceased son | Nothing for them if the will does not mention them | An obligatory bequest within one third, with priority over optional bequests | Personal Status Law, Article 279 |
| Revocation of an earlier will written in Jordan | The revocation clause in the new will is enough | The revocation must be express and registered with an official body | Personal Status Law, Article 258 |
| Real property located in Jordan | Passes as the will provides | Its ownership and the real rights over it are governed by the law of the place where it is located | Civil Code, Article 19 |
The upshot of the table is that a foreign will is carried out within the limits Jordanian law draws, and what remains of it in a particular file is assessed by the lawyer from the status of the heirs and beneficiaries and the location of the assets.
8. Frequently Asked Questions
Is an American will carried out on real property in Jordan?
It is carried out within the limits set by Jordanian law. The substance is governed by the law of the testator at the time of death, which is Jordanian law for a person who holds Jordanian nationality even if he also holds a foreign nationality (Articles 18 and 26 of the Civil Code), and ownership of real property is governed by the law of the place where it is located (Article 19). Anything that breaches the one-third limit or gives an heir more than his share depends on the heirs' approval.
Is a will leaving all the assets to the wife permitted?
A Muslim wife is an heir, so a will in her favor is not carried out unless the heirs approve it after the death (Article 274(c)). A non-Muslim wife does not inherit because of the difference of religion (Article 281(b)), but a will in her favor is valid within one third, and anything above that depends on the heirs' approval (Article 274).
Can a will give sons and daughters equal shares?
A will that changes the heirs' shares is a will in favor of an heir, so it is not carried out unless the heirs approve it after the testator's death (Article 274(c)). Whether other lawful means suit the family's situation is a question the lawyer assesses after studying the assets and the heirs, bearing in mind that a gift made during a final illness is treated as a will (Article 255).
What is the obligatory bequest and who is entitled to it?
It is a bequest the law sets for the children of a son who died before his father or with him, and it extends to the children of a son's son, however far down (Article 279(d)), within one third of the estate. The grandchildren are not entitled to it if their grandfather left them by will, or gave them during his lifetime without consideration, the amount they would be entitled to; if he gave them less, the balance must be made up (Article 279(c)). It takes priority over optional bequests in being paid out of the third (Article 279).
Does an American will revoke an earlier will written in Jordan?
The law requires the revocation of a will to be express and registered with an official body (Article 258), and a claim of revocation is not heard on denial after the death except with official documents (Article 268). Whether the revocation clause in the foreign will meets these conditions is examined by the lawyer in light of how it was notarized.
Legal Consultation
A will written in the United States or Canada to cover assets in Jordan is one of the most delicate personal status files: for the testator, his wishes may end in a distribution he did not intend, and for the heirs, they may find themselves between a will that is not carried out in full and real property that returns to co-ownership among them. What is not dealt with during the testator's lifetime is hard to remedy after his death, when carrying out the will depends on the heirs' approval. For legal consultation in Sharia and inheritance cases, or to read about legal matters in Jordan for people living in the USA and Canada and what heirs face in partition of co-owned property in Jordan, you can contact Alabwini Law Firm & Legal Consultancy.
