Q: My respected mother, whilst she was alive, mentioned to me and several of her children “the flat that belongs to me in a certain apartment building, I have given it to my 2 granddaughters but I will continue to take the rental as long as I am alive”.
I did mention to her on a few occasions that it is incorrect to give a gift in this manner, you either give it away with all its benefits to the 2 granddaughters otherwise it will form of part of your estate. She has passed on to the mercy of Allah Ta’ala without correcting this statement or re gifting this property in the correct manner.
I would like to find out if this property in question will form part of her estate or will it be in the ownership of the two granddaughters?
A: In order for the gifting to be valid, it is a precondition that the one who is given the gift should take possession of it or have full control over it. In this case, since the deceased did not give full control of the flat, the gifting was not valid. Apart from this, the Fuqaha have explained that it is not permissible to gift a divisible item to two or more people without first dividing it and thereafter giving each person their portion. In the explained case, since this was not found, the gifting was not valid. Therefore, the flat will form part of the deceased’s estate.
And Allah Ta’ala (الله تعالى) knows best.
Answered by:
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)