Trusteeship of an endowment and removal of the trustee

Many family endowment disputes in Iraq start with a simple question: who is the trustee? A family endowment may pass through two or three generations, its beneficiaries spread out, and they disagree over who runs the property and collects the income. The office of lawyer Ali Barakat, in Baghdad, al-Yarmouk, follows the texts that govern appointing, removing and auditing a trustee, for trustees, beneficiaries and tenants who want to know whom they are dealing with.

The trustee as party to a case

Article 4 of the Civil Procedure Law No. 83 of 1969 makes the trustee the proper party in cases about endowed property. A case brought over endowed property without joining its trustee, or the endowment office where the endowment is controlled, is exposed to an objection that the wrong party has been sued. Finding the trustee's name in the register and the endowment deed therefore comes before any case.

The competent court

Article 300(4) of the Civil Procedure Law gives the Personal Status Court jurisdiction over trusteeship of family endowments, appointing, removing and auditing the trustee, and nominating a trustee for a charitable or mixed endowment. A person seeking to remove a trustee for mismanagement or neglect, or to make the trustee account for income, goes to that court.

The role of the offices

The two office laws add another layer. For Sunni endowments, article 10 of Law No. 56 of 2012 gives the Scholarly Council the task of recommending trustee appointments, and article 13 makes the office responsible for running an attached endowment when the trusteeship lapses or the trustee dies or is removed. For Shia endowments, article 14 of Law No. 57 of 2012 provides that a trustee is appointed and removed according to the prevailing opinion of Imami jurists, failing which by reference to the highest religious authority, and article 10 gives the Scholarly Council the ratification of appointments. Article 16 of the Endowments Administration Law No. 64 of 1966 says the appointment of trustees is organised by a special regulation.

The yearly audit

Article 4(2) of the Endowments Administration Law requires the trustee of an attached endowment to submit accounts during April, May and June each year for checking and approval. If they are not submitted in that period without a legitimate excuse, the endowment body takes possession of the endowed assets without warning and returns them once the accounts have been checked. Article 4(3) exempts a trustee who is the founder.

Trustee-audit committees

Article 4(4) forms committees chaired by a judge, with members from the endowment body, to audit trustees, examine their conduct and dealings, and hear complaints against them; the committees issue the necessary decisions. An aggrieved beneficiary can therefore file a complaint against a trustee with the endowment body for the committee to examine.

Objecting to a committee decision

Article 4(5) gives the trustee the right to object to committee decisions before the council within ten days from the day after notification, and the council's decision is enforceable under the Execution Law. Article 7 of both the Sunni and the Shia office laws lists hearing such objections among each council's powers. The window is short, and a trustee who misses it loses this route. See challenging decisions of an endowment office.

A trustee who refuses staffing obligations

Article 16(2) of the Endowments Administration Law allows the endowment body to take possession of the endowed assets and run them directly if the trustee refuses to treat staff of the religious institutions of an attached endowment as article 16(1) requires, where the endowment's income allows; the assets go back to the trustee once the trustee agrees to comply. For the Shia office see the Shia Endowment Office, and for disputes over status, disputes over whether property is endowed.

Legal basis and sources

1. Civil Procedure Law No. 83 of 1969 (Official Gazette No. 1766 of 10/11/1969) — Articles 4 and 300
2. Endowments Administration Law No. 64 of 1966 (Official Gazette No. 1293 of 31/7/1966) — Articles 4 and 16
3. Sunni Endowment Office Law No. 56 of 2012 (Official Gazette No. 4254 of 15/10/2012) — Articles 7, 10 and 13
4. Shia Endowment Office Law No. 57 of 2012 (Official Gazette No. 4254 of 15/10/2012) — Articles 7, 10 and 14

Frequently asked questions

Related topics and articles

• 01The Shia Endowment Office: jurisdiction and property transactionsThe jurisdiction of the Shia Endowment Office under Law No. 57 of 2012: endowments without a private trustee, appointing and removing trustees, sale and substitution, and the holy shrines.
• 02Challenging decisions of the competent endowment officeRoutes for challenging endowment office decisions: objecting to trustee-audit committee decisions within ten days, grievance and appeal to the Administrative Court, the Personal Status Court, and cassation.
• 03Disputes over the status or boundaries of an endowmentDisputes over whether property is endowed or owned, and over its boundaries and kind: the office suit where an endowment became private property, the court of first instance in liquidating Sunni family endowments, and evidence.
• 04The Sunni Endowment Office: jurisdiction and property transactionsThe jurisdiction of the Sunni Endowment Office under Law No. 56 of 2012: its council, its investment authority, controlled and attached endowments, and property transactions.
• 05The Office of Endowments of the Christian, Yazidi and Sabean Mandaean ReligionsThe Office of Endowments of the Christian, Yazidi and Sabean Mandaean Religions under Law No. 58 of 2012: attachment, council, a directorate for each faith, and support for trustees.

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

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