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Excluding heirs because of prior gifts

JAMIATUL ULAMA KZN DAILY Q&A

Islamic Wills Series –The Jamiatul Ulama (KZN) has launched a series of programs throughout KZN focusing on the importance of an Islamic Will in the life of a Muslim. On Tuesday 5th February, the Jamiat conducted a successful program in Shallcross which was well received by the community. The panel consisted of Ulama and an attorney to address the Islamic and South African legal issues surrounding the Will.

Other areas that are interested in hosting these programs may contact the Jamiat Administrator (admin@jamiat.org.za).

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Question and Answer:
Q. My uncle has given his sons and daughters properties a few years ago as gifts in his lifetime. Now he is asking them not to claim from his inheritance when he passes away because he has already given them their inheritance and the children must leave the entire estate to his wife. Is this correct?

(Query published as received)

A. As you have stated, the properties that your uncle had given to his children in his lifetime are gifts and belong to them. These properties will not form part of your uncle’s estate upon his demise. Whatever your uncle owns at the time of his demise will form part of his estate and has to be distributed according to the Islamic Law of Succession and Inheritance amongst all his rightful heirs. It is not correct for him to instruct his children to forfeit their inheritance on account of him giving them certain assets in his lifetime. The properties that he has given them in his lifetime are not inheritance. These are gifts. Inheritance only comes into effect after a person passes away. The children of your uncle are legitimate Shar’ee heirs and have the full right to claim their shares of inheritance upon his demise. Yes, if after the demise of their father, they wish to cede their shares to their mother without any coercion, they may do so.

And Allah Knows Best

Mufti Suhail Tarmahomed

Fatwa Department
Jamiatul Ulama (KZN)
Council of Muslim Theologians

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