Fatwa ID: 08702

 

 

Answered by: Maulana Nuski Cassim

 

Question:

 

One of my relatives (who is Masha Allah still alive) has some property, which includes a couple of plots of land, some cash investments, and a house (which is the most valuable). He has transferred the title of the house to his wife and only son, jointly in the proportion of 50 percent each.

 

He had earlier also gifted some property to his children without determining the value of the respective properties, meaning these were not necessarily equivalent in value. My relative also has two married daughters. Kindly guide us regarding the Islamic injunctions on inheritance, including the shares of his daughters, to ensure equity.

 

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer:

 

Whilst one is alive, they are free to do with their wealth as they please; such wealth that is beyond one’s financial obligations and responsibilities. The wealth, without question, should be spent on those things which are permissible. Whatever is gifted [to others] in the lifetime of a person is not considered at the time of distribution of his or her inheritance—especially if it is given to one’s children. In addition, the distribution of inheritance carries certain rules such as looking into the wasiyyah (bequests) of a person, their debts, as well as who the recipients of the inheritance are—specific people [involved] get a specific allotted amount of the inheritance that remains.

 

 

It is not clear whether your relative has gifted these properties as part of his will or simply as gifts. Furthermore, because such gifts were gifted by your relative who I assume is healthy and well, the gifts given cannot be taken back and added to [future] inheritance.[1] This is not like the case when one gifts during a terminal illness.[2]

 

 

The house transferred to your relative’s wife and son is no longer his. Ownership is now in their names and the property both Islamically and legally belongs to them. The other properties that were gifted to his other children are also now theirs and none of it is considered in the inheritance. Once the relative passes on, only what is left of his [personal] assets will be distributed as part of the inheritance. 

 

 

Finally, one’s children should be gifted equally and fairly.[3] If disparity takes place in the act of gifting multiple children, it would not be correct, though it is considered valid. The allotted shares according to this scenario and information provided are the following:

 

• Wife – 1/8th of the estate

 

• Son – 7/16th of the estate

 

• Daughters – 7/32 of the estate (each)

 

 

 

 

References:

 

1.

وكان الموهوب له ذا رحم محرم من الواهب فليس للواهب أن يرجع فيها

[شرح معاني الآثار، ج ٤، صفحة ٧٧، عالم الكتب]

 

اثني عشر شيئا ينقطع به حق الرجوع في الهبة: إذا كان الموهوب له ذات رحم محرم

[خزانة الفقه للسمرقندي، كتاب الهبة، صفحة ٢٠٦]

 

 

2.

ودل على أن الهبة غير جائزة للوارث في المرض، وأنها بمنزلة الوصية

[شرح مختصر الطحاوي للجصاص، ج ٤، صفحة ٢١، دار البشائر الإسلامية]

 

تسعة أشياء لا ينقطع بها حق الرجوع في الهبة: …أو في مرضه لورثته ثم مات المورث فلورثته الرجوع 

[خزانة الفقه للسمرقندي، كتاب الهبة، صفحة ٢٠٧]

 

 

3.

ولكن ينبغي أن يسوي بين أولاده في الهبة في قول أبي يوسف

[تحفة الفقهاء، كتاب الهبة، دار الكتب العلمية، ج ٣، صفحة ١٧٠]

 

 

 

Only Allah knows best.

Written by Maulana Nuski Cassim

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham