Difference between a gift and will

Fatwa ID: 02482

Answered by: Maulana Jamal Ahmed

Question:

Assalaamualaikum WRWB.

I am asking this question to You(db) with regards to inheritance.

My wife's father passed away about four(4) months ago. It's only after the death of her father that she learnt that there is a property transcribed/registered on her name by her father at the "Registrar General Department" under the State of Mauritius. The house was transcribed/registered on her name when she was minor(about 5 years old) in 1990.

The transcription stipulates that the father has usufruct rights on the property till he is alive and if he dies, then the daughter will have full rights over the property and can do whatever she wants. It is to be noted that my wife didnt enjoy any benefits on the property when his father was alive.

Question 1 : what is the difference between a gift and a will ?

Question 2 : Is the transcription considered as a will or a valid proof that this is a gift from her father, according to Shariah ?

Question 3 : Is the property given to my wife considered as a gift ?

Question 4 : Is the property given to my wife considered as a gift even though my wife's brother claims that his father made the transcription to evade tax but my wife never heard such a thing from her father ?

Question5 : Is there any justifications that the property cannot be considered as a gift and should be considered as part of inheritance ? Please treat as urgent if possible.  JAZAKALLAH

Answer

بسم الله الرحمن الرحي

Hiba (gift) and wasiyyah (will) are different because, Hiba means immediate transfer of ownership whilst, wasiyyah is to defer the ownership till after death. Thus, in your case the house will be a gift to the daughter because the transcription did not state that the house will be her possession after his death, rather it was transferred on to her name immediately.  The condition for him to reside in the house, which he stipulated, is void because these types of conditions which oppose the essence of the contract of gift will be considered void. 

The contract of gift is normally complete by handing over the possession of the item to the other party, however in the case of a minor, the father’s possession is sufficient. 

Contract of gift will be valid and effective even if it is carried out to evade tax etc. The house will not be considered as part of inheritance because it was given as a gift, however, if it was given to her as a will then it will not be permissible for her except when the other members of the family allow it.

If a person favours one of his child by gifting them an item, then if this is done with the intention to harm the others then it will be makrooh tahreemi (prohibitively disliked).

This type of gifts are legally effective, although morally it is wajib to return it. If it is not done to inflict harm on the siblings nor is there any reasons for the preference then it is makrooh tanzeehi (slightly disliked). Favouring one child over others, due to him excelling others in religious matters, is mustahab.  (Ahsanulfatawa, pg. 256, vol. 7, HM Saeed Company)

To maintain good relation between family members the daughter can give up her share of inheritance or adopt such other methods which can bring peace in the family and calm the situation, such as leasing the property and sharing the rent with other members.  

Only Allah knows best.

Written by Maulana Jamal Ahmed

Checked and Approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

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