Answered by Shaykh Irshaad Sedick
In one of the responses, I read that it is prohibited to bequeath to your divinely ordained heirs, but it is not prohibited to gift those people while you’re alive.
If my parents want to gift their six children, how can this occur? Can it be gifted verbally, or must it be in writing? If in writing, can it be typed out at home? Do the recipients (the children) need to sign it? Does it need to go through a formal state procedure?
Also, if my parents have gifted me a house, but I do not have complete control and possession of it, can it be considered an actual gift? Likewise, in the case of inheritance, if parents say to their children that all of my wealth is yours, and they name how much and what belongs to who, but they continue to manage the properties and wealth, can it be said that the gift was transferred to the child or children? Would those properties and wealth be theirs, or will it be part of the wealth to share after the parents die?
In the Name of Allah, the Most Merciful and Compassionate.
May Allah guide us to that which pleases Him, forgive us for our shortcomings, and alleviate our difficulties, Amin.
Gifting one’s wealth to heirs or non-heirs during one’s lifetime is permissible. However, one must ensure that Sacred Law’s gift-giving rules (Hiba) are duly observed.
There may be valid reasons for wanting to gift one’s wealth to one’s children instead of following Sacred Law’s post-mortem procedures. Still, dissatisfaction with those procedures or Sacred Law’s stipulated shares should not be considered a valid reason. Allah (Most High) is infinitely Wise and Just, and His Sacred Law is far superior to our notions of what is just and fair, therefore “evading” the dictates of Sacred Law to pursue our flawed human notions of what is most beneficial to our heirs is disingenuous, and Allah knows best.
Allah (Most High) says: “Allah commands you regarding your children: the share of the male will be twice that of the female. If you leave only two ˹or more˺ females, their share is two-thirds of the estate. (…) (Be fair to) your parents and children, as you do not (fully) know who is more beneficial to you. (This is) an obligation from Allah. Surely Allah is All-Knowing, All-Wise. [Quran, 4:11]
Gift giving is recommended (sunna). It is superior to give gifts to one’s relatives than to non-relatives. When giving gifts to one’s children, giving each child the equal to what the others are given is recommended. [Misri, ‘Umdat al-Salik]
Conditions of Gift-Giving
Gift giving is only valid under the following conditions:
- That the giver (X) has full rights to manage his property;
- That the gift be something permissible to sell;
- That (X) give it with spoken words that effect it;
- And that the receiver (Y) accepts it with a spoken reply.
(Y) does not own the gift until he takes possession of it, and before which (X) may take it back. It is not valid for (Y) to take possession of the gift without (X’s) permission. [ibid.]
Taking possession means:
- For transportable things such as wheat or barley, that the items are transported by the buyer or his representative when he moves the merchandise to a place not belonging to the seller, such as the street or the receiver’s house;
- For things dealt with by hand, such as a garment or book, that they are taken in hand (by the receiver);
- And for other things, such as a house or land, they are given over, i.e., the seller gives the buyer control over them, such as by handing the key to him or moving others’ belongings off the property. [Keller, Reliance of the Traveller]
A house is only considered “gifted” once condition number three above has been fulfilled. If all the conditions of gift-giving have not been fulfilled, then the property remains within the ownership of the would-be gift-giver and will form part of his estate when he passes away,
Allah knows best.
I pray this is of benefit.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar, Shaykh Taha Karaan.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and pursuing his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.