فهرست مطالب عباس تولیت

In a taking possession will, heirs of testator are forbidden to possess property that is subject of a will. There is no distinction, based upon different foundations, among reasons for such prohibition and under different foundations like transferring, appearance, and no need for an acceptance, the result is forbidding heirs from possession of property. The reason for above point is that a testator has an especial right over one- third of his property, therefore, till the time of rejection or acceptance of the will his legal heirs are not permitted to use the testator’s property. For such a limitation, there is no difference either the testator die or his property transferred to his residuary. Under this foundation that after dying a person his legal heirs becomes owner of the testator’s property, so it is possible to accept such a result for them in the case under discussion, since there many examples that a testator unable to transfer his ownership upon his property to a third person residuary. In all those cases, like conditional sale contracts and mortgage, a common factor for forbidden a testator is an implying conditions to save property or destroying it by the owner; and a seller would be able to recover the same property or has a right to return it to him by a buyer as well as a mortgager would be able to recover his money by selling the mortgage. In all those cases mentioned in above, a person who is obliged to keep a property itself or has no right to possess it. Because, possession of a property is a matter that is inconsistent with the main purpose of doing legal activities namely a passion either in a form of transferring or destroying it, or condition for saving a property directly or by implication. Under the “Imamiyyah” Jurisprudence, it is admitted that until the time of rejection or acceptance of a will by a residuary, those who are testators of a will have not any right to possess the property of a dead person; of course, this is not a rule that easily to accept it since it is in contradiction to rules of ownership and right of rejection to accept a will. In this article, it is tried to support a reason (s) for a prohibition of possession of a testator’s property against those above rules.