Kuwait Court of Cassation principle number 557

Summary: - Where a bequest of usufruct is made to an indeterminate group of people not expected to cease to exist, or for a charitable purpose. Perpetual or unrestricted. The legatees are entitled to the usufruct by way of affirmation. - The disposition after the testator’s death. Becomes a waqf. If he dies maintaining his bequest, the rules of waqf apply to it. Even if the deceased’s expressions take the form of a bequest. Reason: the testator cast it in the form of a waqf. - The purport of Article 6 of the Sovereign Order concerning the Rules of Waqfs issued on 5/4/1951: supervision of a charitable waqf is vested in the Ministry of Awqaf. If the founder did not stipulate supervision for a specified person or entity. If the founder did not stipulate supervision for a specified person or entity. If he did so stipulate, the General Secretariat of Awqaf shall participate in supervision with the supervisor appointed by the founder, irrespective of the school of jurisprudence. If the interest so requires. The challenged judgment’s departure from this. Error in applying the law. Rule: It is established in this Court’s jurisprudence that where a bequest of usufruct is made to an indeterminate group of people not expected to cease to exist, or for a charitable purpose, and the bequest is perpetual or unrestricted, the legatees are entitled to the usufruct in perpetuity, and the disposition becomes a waqf after the testator’s death. If he dies maintaining his bequest, the rules of waqf apply to it in all respects, even if the deceased’s expressions took the form of a bequest, because the testator cast it in the form of a waqf. It is established by Article 6 of the Sovereign Order concerning the Rules of Waqfs issued on 5/4/1951 that “Charitable waqfs and waqfs in which charitable purposes have a share, where the founder has not stipulated their supervision for a specified person or entity, shall be supervised by Public Awqaf. If he stipulates supervision for someone, the Department shall participate in supervision jointly with the appointed supervisor if the interest so requires.” This means, as stated in the Explanatory Memorandum, that supervision of a charitable waqf has, since issuance of the aforementioned Sovereign Order, been vested in the Ministry of Awqaf where the founder has not stipulated supervision for a specified person or entity. If he has so stipulated, Awqaf shall participate in supervision with the supervisor appointed by the founder if the interest so requires. That being so, and as the waqf deed establishes that the founder appointed his son as trustee of his waqf and did not entrust him with appointing others after him, the General Secretariat of Awqaf is the supervisor of the waqf pursuant to the provisions of the aforementioned Sovereign Order, irrespective of the school of jurisprudence to which the founder belongs. As the challenged judgment departed from this view and upheld the first-instance judgment appointing the first respondent as supervisor of the waqf, it erred in applying the law and must be quashed.