Fatwa No : 83186
The procedure for distributing property during one's lifetime.

The procedure for distributing property during one's lifetime.

Assalamu Alaikum wa Rahmatullahi wa Barakatuh!
I kindly request you to draft a will for me. The details of the family heirs and properties are as follows:
Respected Father: Syed Mashooq Ali (alive)
Respected Mother: Tahira Begum (deceased)
All children are alive, including five sons and five daughters.
Four sons and four daughters are married.
There are two houses in my (Mashuq Ali's) name, one in Orangi Town and one in North Karachi.
My wife also owns one house in Orangi Town, and there are two shops in North Karachi. We all live in that house including my mother, and the shops are closed and vacant.
Regarding my house in North Karachi, the investment was made by two of my sons and my late wife on that land. Please advise me whether I am only allowed to return the capital amount they invested or if I can give them more than that? Although they invested the money without my permission, and at that time there was no clear agreement about loans or repayments, it was understood that those who invested would receive something in return.
Keeping the above points in mind, kindly draft a Shariah-compliant will for me.
The names of the sons who invested are:
(1) Syed Asfar Ali
(2) Syed Shahid Ali

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clearly understood that since the aforementioned sons and the late wife did not make these expenditures with a clear agreement of it being a loan or to be returned, it is not obligatory under Islamic law to return those expenses or to repay them at their current value. However, the respected father may, of his own free will, give them as much as he wishes.
Furthermore, it should be clarified that during a person's healthy life—before falling into a terminal illness—he remains the sole owner of his property and is permitted to dispose of it as he wishes. If he chooses to distribute it, then in Islamic law this is considered a "Hibah" (gift), and in such a gift, equal treatment among children is preferable and recommended.
Now, if the questioner wishes to distribute his property among his children, the best way to do so is as follows: he should set aside a reasonable amount for himself for the remainder of his life, and then distribute the remaining assets and property equally among his children, handing over possession and ownership of their respective shares.
However, if he wishes to give more to any son or daughter due to their excess services, piety, financial need, or contribution to the construction of the house, then this is also permissible. But he should not deprive any son or daughter without reason, as that would be sinful.

مأخَذُ الفَتوی

کما فی الفتاوى الهندية: ولو وهب رجل شيئا لأولاده في الصحة وأراد تفضيل البعض على البعض في ذلك لا رواية لهذا في الأصل عن أصحابنا وروي عن أبي حنيفة رحمه الله تعالى أنه لا بأس به إذا كان التفضيل لزيادة فضل له في الدين وإن كانا سواء يكره وروى المعلى عن أبي يوسف رحمه الله تعالى أنه لا بأس به إذا لم يقصد به الإضرار وإن قصد به الإضرار سوى بينهم يعطي الابنة مثل ما يعطي للابن وعليه الفتوى اھ (4/ 391)۔
و في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) (5/ 690)۔