Gifting one’s possession during one’s lifetime

Question:-

1. My mother recently gifted two gold bangles to my daughters, one for each of them, but my mum has stated that she will make use of it until her death. To whom do the bangles belong? Will they be given to my daughters after my mum’s passing away, or will it form part of the estate? How can it be distributed during her lifetime while she still makes use of it, without it forming part of her estate after her death?

2. Would an estate be regarded as “distributed” in shariah if the shares in a house were allocated to each heir (son, mother and daughter) without the heirs requesting to be paid out their share or receiving their share of rental, but they are satisfied with their respective shares in the house even though the house is occupied by the son only?

3: My mum gifted a fridge to my wife and I. Do we assume its 50/50 or, do we, as a couple, need to mutually agree on the share in the fridge, or does my mum have to stipulate the share?

Answer:-

1. We understand from your query that you mum physically handed over the bangles to your daughters as a gift, one bangle to each of them in their hands. After them taking physical possession of the bangles, each daughter voluntarily loaned their respective bangle to their grandmother without being coerced into doing so. Also, we assume that your mother didn’t lay down a condition that the bangles must be loaned to her, if it is to gift it to them. She simply requested them to loan the bangles to her after gifting it to them and they had willingly agreed to it. If this is the scenario, then the gifting process was valid and your daughters are now the owners of the bangles. In the event that your mother passes away, the bangles will not form part of her estate and will belong to your daughters.

However, if the above procedure (of taking possession of the bangles by the girls) was not followed, then the gifting process will not be valid and the bangles will form part of your mother’s estate on her demise. It is therefore necessary, that the above procedure is followed for the gifting to be valid. Once the girls have taken possession of the bangles, she may then request them to loan the bangles to her, and if they willingly do so, then the transaction will be in order. However, your mum should keep in mind that your daughters are entitled to ask for the bangles at any point and time once they assume ownership. They will also be entitled to sell the bangles if they wish to do so and cannot be prevented from doing so.

2. On the demise of the owner of the property, it will belong to the heirs in accordance to the Shari’ee law of succession. If the deceased left behind a wife, son and daughter, then the wife inherits 12.5% of the house, the son inherits 58.33% of the house and the daughter inherits 29.16% of the house. In this way, there will be a joint partnership in the property between the three heirs according to the above percentages. Now, if the son was permitted by the remaining heirs to reside in the home free of charge, without having to pay a rental, then there is no problem with such an arrangement. However, the property will be in a joint partnership between all three heirs as explained above.

3. You mother should stipulate how much was gifted to each recipient.

(وتصح هبة مشاع لا يحتمل القسمة) أي ليس من شأنه أن يقسم بمعنى لا يبقى منتفعا به بعد القسمة أصلا كعبد ودابة ولا يبقى منتفعا به بعد القسمة من جنس الانتفاع الذي كان قبل القسمة كالبيت الصغير والحمام (لا) أي لا تصح هبة (ما) أي مشاع (يحتملها) أي القسمة على وجه ينتفع به بعد القسمة كما قبلها كالأرض والثوب والدار ونحو ذلك (مجمع الأنهر شرح ملتقي الابحر ص342 ج2)

ALLAH TA’ALA KNOWS BEST!

ANSWERED BY:

Mufti Mohammed Desai

Date: 18 Safar 1444 / 15 September 2022