Taking possession of gifts is necessary for the validity of the gift

Question:-

My mother-in-law gifted all her assets to her three daughters in her lifetime. The daughters have allowed her to use the assets for herself while she is still alive. The bank account is in my mother-in-law’s name. She has the jewellery and cash with her, but all these assets have already been given to the three daughters. She needs to make an Islamic Will and I would like to know how to overcome the issue, as her current assets do not form part of her estate.

Answer:-

If your mother-in-law gifts her belongings and assets to her three daughters in her lifetime, then the daughters will assume ownership on taking possession of the gifted items. For example, she will have to physically hand over the funds (that she intends gifting) to each of her daughters, or EFT the funds into their bank accounts and physically hand over the jewellery to them etc. Yes, once they have taken physical possession of their respective gifts, they may loan these items to her to utilize.

In the case of a property, she will be required to remove all her belongings and personal effects from the property and then demarcate the portion of each daughter. Once the daughters take possession of their stipulated portion of the property, then they may make it available to her to utilize. It is only then that she may move her belongings back into the home and continue benefitting from the property.

Since, this may be a difficult process, an easy way of solving the matter is by selling 33.33% (for example) to each daughter for a nominal amount such as R100.00. Each daughter will pay the R100.00 to their mother and become 33.33% shareholders of the property. This is an easy way of resolving the matter.

If the gifting process is finalized and completed as explained above, then a document should be drawn up listing all the items that were gifted or sold to the daughters in her lifetime. This document should state that these items will be exempted from the deceased’s estate, and should be witnessed by two males, or one male and two females, who qualify to sign as witnesses on her behalf. The said document should then be attached to the last and final Will and the executor/s should be notified of the said document as well.

We hope the above explanation clarifies the matter. We can assist with drafting an Islamic Will if required.

ALLAH TA’ALA KNOWS BEST!

ANSWERED BY:

Mufti Mohammed Desai

Date: 29 September 2022 / 02 Rabi-ul-Awwal 1440