Fatwa No : 83855
The Procedure for Distributing Property During One’s Lifetime

The Procedure for Distributing Property During One’s Lifetime

My mother wishes that after her death, her property be divided equally between my elder sister and me. My mother’s father and mother have passed away. She has two sisters who are alive, along with their children. She had two stepbrothers who have also passed away, but their children are still living. My elder sister has one son. In these circumstances, is my mother’s wish in accordance with Shariah? If not, kindly explain the rightful share of each heir.

الجوابُ حامِدا ًو مُصلیِّا ً

The mother of the questioner, during her lifetime, is the sole owner of all her wealth and property, and she may dispose of it in any manner she wishes, provided it is done willingly and without compulsion. Now, if she intends to distribute her property while she is still alive, the best way is that she first keeps aside, according to a reasonable estimate, whatever she wishes to retain for her own remaining needs, and then distributes the rest equally among all her heirs, handing it over with full and lawful ownership. Merely recording their names on paper is not sufficient in Shariah. It should also be made clear that the questioner and her mentioned sister are not the only heirs of their mother. The mother’s sisters are also heirs, and any bequest (wasiyyah) made in favor of an heir cannot be executed without the consent of the other mature and sane heirs. Therefore, the mother should refrain from making such a will, and instead, during her lifetime, if she wishes to give something to each daughter, she should give it with full transfer of ownership, in accordance with the details mentioned above.

مأخَذُ الفَتوی

كما في الدر المختار: (وتتم) الهبة (بالقبض) الكامل (ولو الموهوب شاغلا لملك الواهب لا مشغولا به) والأصل أن الموهوب إن مشغولا بملك الواهب منع تمامها، (5/ 690)۔
و في حاشية ابن عابدين (رد المحتار): ولو وهب شيئا لأولاده في الصحة، وأراد تفضيل البعض على البعض روي عن أبي حنيفة لا بأس به إذا كان التفضيل لزيادة فضل في الدين وإن كانوا سواء يكره وروى المعلى عن أبي يوسف أنه لا بأس به إذا لم يقصد الإضرار وإلا سوى بينهم وعليه الفتوى اھ (4/ 444)۔