Fatwa ID: 05201
Answered by: Maulana Syed Johir Miah
Question
I and my wife are around 70 years and we have one son & one daughter, both married. We have a house in the wife’s name and she wants to transfer it to her son’s name. The value of the property is around 80 million Pak Rupees. Does he have to pay 20 million to me (being owner’s husband), 20 million to his sister, and property can be his? (We deduced this from laws of inheritance).
In the name of Allah, the Most Gracious, the Most Merciful
Answer:
The distribution of wealth to children should be given equal, whether the children are male or female.
During one’s lifetime, one will not distribute wealth among one’s children according to the laws of inheritance but will give them equally, irrespective of male or female. This is not considered inheritance as the giver is still alive and instead this will be regarded as a gift. Gifts should be given equally amongst children and not in accordance with the laws of inheritance as they are two separate issues.
It is of paramount importance to understand the difference between a bequest (wasiyyah) and a transfer of wealth (hadiya or ‘atiyya).
A bequest is where a person says, “Upon my death, give such and such amount to so and so. Once the person has passed away, there is a calculation to ensure that no debts are owed, that the total bequests do not exceed one-third of the deceased person’s total wealth, and then to see if that person is a suitable recipient.
One of the matters that would cause a person to not be able to receive a bequest is if they are an inheritor, such as a spouse or child as The Messenger (صلى الله عليه وسلم) said;
إنَّ اللَّهَ تَبارَكَ وتَعالى قَدْ أعْطى لِكُلِّ ذِي حَقٍّ حَقَّهُ، فَلاَ وصِيَّةَ لِوارِثٍ
‘Indeed Allah, Most Blessed and Most High, has given the right due to everyone deserving a right. So there is no bequest to an inheritor”[1].
Hence, if a person is guaranteed a portion of the inheritance, such as a son or a daughter, then they would not be able to receive a bequest.
A bequest is the transfer of wealth after the death of a person and it comes from their estate.
When a person is alive and not on their deathbed, then they are free to give away any portion of their wealth to whoever they would like.
Once a person is on their deathbed, they are no longer allowed to give away their wealth since that is similar to giving away the right of the inheritors.
So, if a person’s parents are not on their death bed, they can give their wealth to one child over the other or more to one than another, although it would be Sunnah for them to be equal in their distribution of wealth as the Messenger of Allah (peace and blessings be upon him) said,
قارِبُوا بَيْنَ أوْلادِكُمْ
“Treat your children equally”.[2]
The Messenger of Allah (peace and blessings be upon him) also said,
سَوُّوا بَيْنَ أوْلادِكُمْ فِي العَطِيَّةِ فَلَوْ كُنْتُ مُفَضِّلًا أحَدًا لَفَضَّلْتُ النِّساءَ
“Be equal in gifts to your children, and if I were to give more to one I would have chosen the women”[3].
In the aforementioned case, although it is permissible to give them unequally, the Hadeeth discourage us from doing so.
Only Allah knows best
Written by Maulana Syed Johir Miah
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
[1] Sunan Tirmizi, Hadith 2120, 504/3, Darul Gharb, 1998
[2] Sahih Muslim, Hadith 1623, 1244/3, Dar Ihyath Turath, Beirut, Lebanon
[3] Al-Mu’jamul Kabir, Hadith 11997, 354/11, Maktabah Ibn Taymiyah, Cairo, Egypt.
