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Gift Before Death-will


Salaam-U-Alaikum Sheikh, I am a male and have one brother. We are both married with children. My brother is mash’Allah much more successful than I. He owns a nice home and is retired. He jointly owns a second home which is rented out. He makes some income from this rental house. I on the other hand am not nearly as financially successful. I am not retired and have been out of work for some time. I do not own a home and have very little in the way of assets. I and my wife and children live with my parents in their home. I also have one more child than my brother. Sadly, my father is close to death. But he has not passed away as yet. He recently decided that he would give me his house. He decided this on the fact that I am in substantial financial difficulty whereas my brother is most likely close to being a millionaire. This is what my father said to me when I asked why he decided to do this. As a result, he changed his will so that upon his and my mother’s death their home would be given to me. My brother would be excluded from the home. Other monies and assets would be divided between my brother and I according to Islamic rules. My brother, was upset upon hearing this and does not agree. He states that the home should be divided between both of us. Our father disagrees and has stated that he is still alive and he is effectively giving the house to me before his death (while he is alive). To ensure this, he has changed his will to ensure that I receive the house according to the laws of our country (upon his and my mother’s death). My father has tried to reason with my brother stating that I am financially much lower and that he does not wish for me to become homeless (especially with my young family). My brother does not agree and has become very upset. This whole issue has caused me great sadness. I am most of all worried about disobeying Allah (SWT). I do not know whether my father is doing the right thing or not. Please advise accordingly what I should do.


Approval Requested : Gift Before Death

From: zahra davdani
Sent: 12 October 2020 23:23
To: Ask An Alim Admin
Subject: Re: Your Assistance Requested : Gift Before Death

Salaamun alaykum
Thank you for your question.

Ruling 2716. If a person makes a will that something from his property is to be owned by someone, and if the latter accepts the will – irrespective of whether he accepts it during the lifetime of the testator(one who makes the will) or after his death – then, as long as the item is not more than a third of the testator’s estate, he becomes the owner of the item upon the testator’s death.

So if the house is not more than one third of your father’s property, after he passes, then the house belongs to you but if it’s more than one third of his property, then only one third belongs to you and the rest has to be divided among the inheritors, unless they agree to give you their share.

If your father wants you to have the house, he can gift it to you in his lifetime, then it will count as your property.

Zahra Davdani.