Obligatory bequest (wasiyya wajiba) in Iraq: article 74

In briefWhere a son or daughter dies before his or her father or mother, article 74 of Personal Status Law No. 188 of 1959, as amended by Law No. 72 of 1979, treats that child as alive at the parent's death and passes the child's inheritance entitlement to his or her own children as an obligatory bequest, capped at one third of the estate. The obligatory bequest is paid out of the third before any other bequest. Voluntary wills are governed by articles 64 to 73.

One of the questions that comes up most often when an Iraqi estate is divided concerns grandchildren whose father or mother died before the grandparent. Do they receive anything from the grandparent's estate? Personal Status Law No. 188 of 1959 answers through the obligatory bequest (al-wasiyya al-wajiba). The office of lawyer Ali Barakat explains here how it works, and how it differs both from a will a person makes by choice and from inheritance itself.

The gap it fills

An heir must be alive when the person whose estate is being divided dies; article 86 makes that a condition of inheritance. A son who dies before his father was not alive at the father's death, so he does not inherit from him. Left there, his children could be excluded from their grandfather's estate by their uncles and aunts. Article 74 was written to correct that result.

What article 74 says

Paragraph 1 provides that where a child, male or female, dies before his or her father or mother, that child is treated as alive at the death of either parent, and the child's entitlement in the inheritance passes to his or her own children, male and female, according to the rules of Sharia, as an obligatory bequest that may not exceed one third of the estate. Paragraph 2 gives this bequest priority over any other bequests when the third is paid out.

Several points follow from the wording:

The predeceased child may be a son or a daughter. The children of a deceased daughter benefit just as the children of a deceased son do.
The estate may be the grandfather's or the grandmother's. The text refers to the death of either parent.
The beneficiaries are the predeceased child's own children, sons and daughters, who share what their parent would have received according to Sharia rules.
There is a ceiling of one third. The total obligatory bequest cannot exceed a third of the estate, even if the predeceased child's share would have been larger.
It comes first. If the grandparent also left voluntary bequests, the obligatory bequest is satisfied from the third before them.

It is called "obligatory" because it arises by operation of law. The grandparent does not need to have written it or intended it.

Since article 2 was amended by Law No. 1 of 2025, an Iraqi Muslim may choose to have the rulings of the Ja'fari school applied to his or her personal status. Under paragraph 3(h) of article 2, where the parties to a case differ in that choice, the courts follow the testator's and the deceased's choice when executing wills and dividing estates. Where the deceased made that choice, the estate is divided under those rulings and not necessarily under article 74.

Where it sits among claims on the estate

Article 87 ranks four sets of rights over an estate, each taking priority over the next: preparing the deceased for burial in the lawful manner; paying the debts out of the whole estate; carrying out the bequests out of a third of what remains; and distributing the rest to those entitled. The obligatory bequest falls in the third rank, after debts and before the heirs take the remainder. How the inheritance deed is issued is covered on the death record and inheritance deed page.

Voluntary wills under the same Law

Articles 64 to 73 govern the will a person makes by choice:

Definition (article 64): a disposition of the estate taking effect after death, transferring ownership without consideration.
Proof (articles 65 and 66): a will counts only if there is written evidence signed by the testator or bearing his seal or thumbprint. Where the subject is real property, or movable property above the value set in the article, it must be authenticated by a notary public. Testimony is allowed where a physical obstacle prevented written evidence. A will drawn up by the courts or competent offices is enforceable unless an interested party objects.
The parties (articles 67 and 68): the testator must be legally capable of making a gift and must own what is bequeathed. The beneficiary must be alive, actually or constructively, both when the will is made and when the testator dies. Legal persons, charities and public-benefit bodies may benefit, but someone who killed the testator may not.
The one-third limit (article 70): a bequest above one third requires the heirs' consent, and the State is the heir of a person with no heirs.
Religion and nationality (article 71): a bequest between people of different religions is valid only for movable property; one between people of different nationalities is valid subject to reciprocity.
When a will fails (article 72): revocation by the testator, loss of capacity lasting until death, a disposal of the property that removes its identity or most of its features, its destruction, or rejection by the beneficiary after the death.

Article 73 adds that articles 1108 to 1112 of the Civil Code are to be observed for wills.

Obligatory bequest versus inheritance

Inheritance belongs to a living heir in a fixed Sharia share. The obligatory bequest goes to people who are not heirs in their own right, namely the predeceased child's children, and it is treated as a bequest: capped at one third and ranked ahead of other bequests. What the grandchildren receive may therefore be less than the full share their parent would have taken.

A Region note on article 74

A note in the Iraqi Legislation Database records that article 74 was suspended in the Kurdistan Region by article 24 of Law No. 15 of 2008, so estates before the Region's courts are read against the regional text.

Legal basis and sources

Personal Status Law No. 188 of 1959, as amended, articles 2, 64 to 74 and 87 (Official Gazette, issue 280 of 30/12/1959)

Frequently asked questions

Are a deceased daughter's children entitled?

Yes. Article 74 covers a predeceased child "whether male or female".

Must the grandparent have left a will in their favour?

No. The obligatory bequest arises by law, without any written will by the grandparent.

Can it exceed one third of the estate?

No. The text limits it to one third.

Always check the text in force and its amendments in the official source.

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The obligatory bequest in Iraqi law for children of a predeceased son or daughter