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‘LAST WILL’

Answered according to Hanafi Fiqh by DarulUloomTT.net

QUESTION

As Salaam Alaikum,

Is it permissible to do something call a living will? ie I say that this house belongs to my daughter but she will take possession of it when I die and this car belongs to my son but he will take possession of it when I do? If it is permissible what is the correct way of doing it?

ANSWER

Wa Alaikum As Salaam,

In reality, what you have described is a ‘last will’, since you have connected the handing over of the house and the car to your death. When you say ‘this house belongs to my daughter’ and ‘this car belongs to my son’, these statements, in reality, convey the meaning of gifts. In other words, by using such words, you really mean that you have given or you are giving these things, and since this is being done while you are still alive, it falls under the heading of ‘gifts’. However, when you state, ‘but she will take possession of it when I die’ (in the case of your daughter), and ‘he will take possession of it when I die’ (in the case of the son), you have now connected taking possession of these items to your death, which makes it your last will (wasiyah). In Islam, for gifts to be valid, possession must be taken while you are alive. It means that when you give something to someone, you must give possession of that thing to the person, and the person must take possession of the item.

In the above case, if you die without having given out these items as gifts to your children, then these will fall under the heading of ‘a will’ (a wasiyah). But according to the authentic and sound hadith, the Prophet (S.A.S) said, ‘No Wasiyah (will) can be made for an inheritor’ (Bukhari). This means that your statements and will (wasiyah) made to your daughter and son, cannot take effect since you have bequeathed these items to your inheritors, and this is not allowed in Islam, (seeing that they will already be inheriting from you). As such, these item will automatically fall under the laws of Inheritance, and will be distributed in accordance to the teachings of the Holy Quran to all rightful inheritors as per their respective shares.

Therefore, if you wish, you can either give these items as gifts to your children and make them the owners of these when you are still alive, or you can write your ‘last will’ in accordance to the laws of Islamic inheritance for your inheritors and let them become the owners of these items, and take possession of these after you die.

And Allah Knows best

Mufti Waseem Khan

14/09/2018

This answer was collected from DarulUloomTT.net, which is operated under the supervision of Mufti Waseem Khan from Darul Uloom Trinidad and Tobago.

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