The Book of Selling and

Commercial Transactions Gifts

From The Terminally Ill

عَطِيَّةِ الْمَرِيْضِ

Stations

Glossary

Gifts from the [Terminally] Ill (‘Aṭeeyat al-Mareeḍ) ¹⁰⁴⁹

There is a ruling on donations [or gifts] from someone during the illness from which he or she is expected to die. ¹⁰⁵⁰ The same applies to others with similar fears, like when standing between the two ranks before battle, or en route to being executed, or in a storm at sea, or in a land infested by plague. Given that death actually follows, the ruling is that such a donation is to be treated as a waṣiyah (bequest) ¹⁰⁵¹ in six respects:

تَبَرُّعَاتُ الْمَرِيْضِ مَرَضَ الْمَوْتِ الْمَخُوْفِ، وَمَنْ هُوَ فِي الْخَوْفِ كَالْمَرِيْضِ، كَالْوَاقِفِ بَيْنَ الصَّفَّيْنِ عِنْدَ الْتِحَامِ الْقِتَالِ، وَمَنْ قُدِّمَ لِيُقْتَلَ، وَرَاكِبِ الْبَحْرِ حَالَ هَيَجَانِهِ، وَمَنْ وَقَعَ الطَّاعُوْنُ بِبَلَدِهِ إِذَا اتَّصَلَ بِهِمُ الْمَوْتُ، حُكْمُهَا حُكْمُ وَصِيَّتِهِ فِي سِتَّةِ أَحْكَامٍ:

First: It is impermissible for an ajnabi (non-relative) ¹⁰⁵² to be gifted more than one-third, or for a wârith (a family member receiving a fixed share of inheritance) to be gifted anything [in addition to his or her inheritance] without the permission of the [other] heirs. This is based on the report of a man who freed six slaves as he was dying, and he possessed no wealth other than them. The Prophet (SA) summoned them and divided them into three

أَحَدُهَا: أَنَّهَا لاَ تَجُوْزُ لأَجْنَبِيٍّ؛ بِزِيَادَةٍ عَلَى الثُّلُثِ، وَلاَ لِوَارِثٍ بِشَيْءٍ إِلاَّ بِإِجَازَةِ الْوَرَثَةِ، لِمَا رُوِيَ أَنَّ رَجُلاً أَعْتَقَ سِتَّةَ مَمْلُوْكِيْنَ عِنْدَ مَوْتِهِ، لَمْ يَكُنْ لَهُ مَالٌ غَيْرُهُمْ، فَدَعَا بِهِمُ النَّبِيُّ فَجَزَّأَهُمْ أَثْلاَثاً، فَأَعْتَقَ اثْنَيْنِ، وَأَرَقَّ أَرْبَعَةً.

1049. As mentioned earlier, gifts are recommended in general. However, when the giver is terminally ill, the giving of gifts is considered to be more like a waṣiyah. The giver will be prevented from wasting his or her wealth on people other than the main heirs because they have rights to it.

1050. This applies only to terminal and fatal illnesses. The scholars mentioned that the testimony of two physicians is sufficient in this regard.

1051. A waṣiyah can be made with up to one-third of one’s wealth, to people who do not receive a share of inheritance.

1052. Ajnabi in this context refers to a person who does not take a share of inheritance (irth).

groups; then he freed two and returned four to enslavement. ¹⁰⁵³

Second: [When slaves are the property being freed by a person facing death,] freedom is granted to some slaves and not others, on the basis of qur‘ah (casting lots) when one-third (of the dying person’s estate) is not sufficient to account for them all – as explained in the [aforementioned] report. ¹⁰⁵⁴

الثَّانِيْ: أَنَّ الْحُرِّيَّةَ تُجَمَعُ فِي بَعْضِ الْعَبِيْدِ بِالْقُرْعَةِ، إِذَا لَمْ يَفِ الثُّلُثُ بِالْجَمِيْعِ؛ لِلْخَبَرِ

Third: If an indeterminate slave is to be freed, or if one was specified but there is confusion [as to which one], the slave actually freed is selected via qur‘ah. ¹⁰⁵⁵

Fourth: [A gift from a person facing death] must come out of the one-third [of the dying person’s entire wealth] upon his or her death. The deceased may have freed or donated a slave and previously owned nothing else besides [that slave]. If the deceased later acquired [wealth equivalent to] double [the slave’s] value and died possessing that, then the slave’s manumission would be considered retrospectively effective from the time the slave was freed.¹⁰⁵⁶ Whatever [the slave] earned after that is his [the slave’s]. On the other hand, if the deceased had incurred a debt equal to (or greater than) the

الرَّابِعُ: أَنَّهُ يُعْتَبَرُ خُرُوْجُهَا مِنَ الثُّلُثِ حَالَ الْمَوْتِ، فَلَوْ أَعْتَقَ عَبْدًا لاَ مَالَ لَهُ سِوَاهُ، أَوْ تَبَرَّعَ بِهِ، ثُمَّ مَلَكَ عِنْدَ الْمَوْتِ ضِعْفَ قِيْمَتِهِ، تَبَيَّنَا أَنَّهُ عَتَقَ كُلُّهُ حِيْنَ إِعْتَاقِهِ، وَكَانَ مَا كَسَبَهُ بَعْدَ ذٰلِكَ لَهُ، وَإِنْ صَارَ عَلَيْهِ دَيْنٌ يَسْتَغْرِقُهُ، لَمْ يَعْتِقْ مِنْهُ شَيْءٌ، وَلَمْ يَصِحَّ تَبَرُّعُهُ بِهِ، وَلَوْ وَصَّى بِشَيْءٍ، فَلَمْ يَأْخُذْهُ الْمُوْصَى لَهُ زَمَانًا، قُوِّمَ عَلَيْهِ وَقْتَ الْمَوْتِ لاَ وَقْتَ الأَخْذِ.

1053. This was reported by (M). The hadith mentioned that the Messenger of Allah (SA) decided who was to be emancipated by casting lots. Hadiths like this do not contradict the strong general encouragement in Islam to free slaves, as mentioned in the appendix on slavery. It is just that, in cases like these, the rights of the inheritors take precedence.

1054. This means that freedom could not be distributed among the slaves, so that each one was one-third free, for example. It would be fully allotted to some, based on casting lots.

1055. Based on the above hadith reported by Muslim. of that wealth.

1056. This is because the slave’s value ended up being equivalent to one-third of the deceased’s wealth, since what was earned afterwards was also part of that wealth.

[value of the] slave, then the slave would not be considered to be freed or donated at all. ¹⁰⁵⁷ Also, if something is bequeathed to a person, but that person delays taking it, the bequest is calculated [in relation to the deceased’s wealth] as of the time of death, not the time when it is [eventually] taken. ‘ah. ¹⁰⁵⁸

Fifth: Whether or not [the one receiving a gift from a dying person] is considered to be an heir is determined [concerning both of them] at the time of the death [of the donor.] If [the one facing death] had no sons and made a bequest or promised something to his or her [consanguine] brother, but then had a son, then the bequest or promise would be valid. ¹⁰⁵⁹ However, if the son died before the deceased parent, then it [the bequest to the deceased’s brother] would become invalid. ¹⁰⁶⁰

الْخَامِسُ : أَنَّ كَوْنَهُ وَارِثًا يُعْتَبَرُ حَالَةَ الْمَوْتِ فِيهِمَا، فَلَوْ أَعْطَى أَخَاهُ أَوْ وَصَّى لَهُ وَلاَ وَلَدَ لَهُ، فَوُلِدَ لَهُ ابْنٌ، صَحَّتِ الْعَطِيَّةُ وَالْوَصِيَّةُ، وَلَوْ كَانَ لَهُ ابْنٌ فَمَاتَ، بَطَلَتَا.

1057. Because the gift or donation during a terminal illness is treated like a bequest, and by consensus, the payment of debts takes precedence over the distribution of bequests.

1058. This means that if Y bequeathed a property to X, and X failed to claim it at the time of Y’s death but later claimed it, it would be assessed according to its value at the time of Y’s death.

If, when Y died, the bequeathed property value exceeded one-third of Y’s total wealth, but at the time of possession by X, its value was less than one-third, X would only be entitled to a portion equal to one-third of Y’s total wealth at the time of death.
Yet supposing, when Y died, the property value had been within the one-third (of Y’s total wealth), but then it subsequently appreciated (or the rest of Y’s wealth depreciated). This means that even though, at the time of possession by X, its value was actually more than one-third, X would still be entitled to all of the bequeathed property, because what matters is the property value at the time of death.

1059. Because once the deceased has a child (a direct descendant), the person’s brother does not qualify as an heir (wârith, who receives a portion of inheritance); therefore, the brother is legally entitled to receive a bequest.

The time of death is what matters in determining who is qualified to be an heir (and thereby disqualified from receiving a bequest), not the time of making the bequest.

1060. Had the deceased’s son outlived him/her, then the deceased’s brother would have been entitled to receive the bequest, since he would not then qualify as an official heir. Note that if the deceased has a son, then the deceased’s own siblings are barred from sharing the inheritance (but in this case, the deceased’s siblings will be entitled to receive the bequest).

Sixth: The approval or disapproval of the heirs ¹⁰⁶¹ is only given consideration after the actual death takes place.

السَّادِسُ: أَنَّهُ لاَ يُعْتَبَرُ رَدُّ الْوَرَثَةِ وَإِجَازَتُهُمْ إِلاَّ بَعْدَ الْمَوْتِ فِيهِمَا.

Gifts [from someone facing death] differ from bequests (waṣiyah) with respect to four rulings:

وَتُفَارِقُ الْوَصِيَّةُ الْعَطِيَّةَ فِي أَحْكَامٍ أَرْبَعَةٍ:

First: A gift is effective immediately. Were someone to free a slave or donate him or her to a person, the freed slave would be emancipated at once, and the donated [slave] would belong to the recipient, with [the slave’s] earnings belonging to [the new master].¹⁰⁶² But if the person bequeaths a slave [in his or her waṣiyah] to a person, the slave is neither freed nor owned by the recipient until after the person’s death. As for what the slave earns [up until the person's death], or any other growth of the gifted property that can be separated [from the principal gift], this belongs to the heirs.

أحدها: أَنَّ الْعَطِيَّةَ تَنْفُذُ مِنْ حِيْنِهَا، فَلَوْ أَعْتَقَ عَبْدًا أَوْ أَعْطَاهُ إِنْسَانًا، صَارَ الْمُعْتَقُ حُرًّا، وَمَلَكَهُ الْمُعْطَى وَكَسْبُهُ لَهُ، وَلَوْ وَصَّى بِهِ، أَوْ دَبَّرَهُ، لَمْ يَعْتِقْ، وَلَمْ يَمْلِكْهُ الْمُوْصَى لَهُ إِلاَّ بَعْدَ الْمَوْتِ وَمَا كَسَبَ أَوْ حَدَثَ فِيهِ مِنْ نَمَاءٍ مُنْفَصِلٍ، فَهُوَ لِلْوَرَثَةِ.

Second: The acceptance or rejection of a gift is taken into [legal] consideration at the time of the offer, just like the gift of a healthy person, whereas the acceptance or rejection of a bequest is only taken into [legal] consideration upon the death of the legator. ¹⁰⁶³

الثَّانِيْ: أَنَّ الْعَطِيَّةَ يُعْتَبَرُ قَبُوْلُهَا وَرَدُّهَا حِيْنَ وُجُوْدِهَا كَعَطِيَّةِ الصَّحِيْحِ، وَالْوَصِيَّةُ لاَ يُعْتَبَرُ قَبُوْلُهَا وَلاَ رَدُّهَا إِلاَّ بَعْدَ مَوْتِ الْمُوْصِيْ

Third: [A gift] is binding immediately, and the

الثَّالِثُ: أَنَّهَا تَقَعُ لاَزِمَةً، لاَ

1061. Regarding whether they allow bequests exceeding one-third of the inheritance or bequests made to one of them.

1062. This is effective immediately, but the final validation will be pending the actual death (or recovery) of the patient. There is a difference between this case and bequeathing a factory to X. In the case of donating the factory during the person’s terminal illness, the profit made between the time of donation and death will go to X. However, this is only if the factory was determined to be equal to or less than one-third of the total wealth at the time of death, and thus the gift is validated.

1063. The legator is the person who made a will or bequest.

gift-giver does not have the right to recant it, whereas a bequest can be recanted whenever the legator wishes [namely, as long as the legator is alive].

يَمْلِكُ الْمُعْطِيْ الرُّجُوْعَ فِيهَا وَالْوَصِيَّةُ لَهُ الرُّجُوْعُ فِيهَا مَتَى شَاءَ.

Fourth: [Gifts are distributed] according to the order in which they were designated [by the giver], in cases where the one-third (of the dying person’s wealth) does not suffice for all [the recipients]. ¹⁰⁶⁴ Conversely, in the waṣiyah, bequests are portioned equally among all recipients, and any deficit is shouldered by them all – in proportion to their share of the bequest – regardless of whether the manumission [of a slave] was involved or not. ¹⁰⁶⁵ It is the same with gifts when they are allotted all at once.

الرَّابِعُ: أَنَّهُ يَبْدَأُ بِالأَوَّلِ فَالأَوَّلِ مِنْهَا إِذَا ضَاقَ الثُّلُثُ عَنْ جَمِيْعِهَا، وَالْوَصِيَّةُ يُسَوَّى بَيْنَ الأَوَّلِ وَالآخِرِ مِنْهُ، وَيَدْخُلُ النَّقْصُ عَلَى وَاحِدٍ بِقَدْرِ وَصِيَّتِهِ، سَوَاءٌ كَانَ فِيهَا عِتْقٌ أَوْ لَمْ يَكُنْ، وَكَذٰلِكَ الْحُكْمُ فِي الْعَطَايَا إِذَا وَقَعَتْ دُفْعَةً وَاحِدَةً.

1064. Example: During his terminal illness, Y gave a gift of property (with a value of 20) to X, and then he gave another gift of property (also with a value of 20) to Z. When Y died, it was found that his total wealth was 99, so he could bequeath only 33 (one-third of it). Since the two gifts combined (20+20=40) would exceed that, the distribution would be as follows: First, X would receive the full gift (20), and then Z would receive what was left of the 33, which would be 13. (33-20=13.)

1065. If Y had bequeathed the two properties in the previous example, then when he died, X and Z would get equal shares of their bequests, so the 33 (one-third of Y’s total wealth) would be divided in two: 33/2 = 16.5 each.

Gifts From The Terminally Ill

( Page : no 92)

The Book of Selling and

Commercial Transactions Gifts

From The Terminally Ill

عَطِيَّةِ الْمَرِيْضِ

Stations

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

Gifts From The Terminally Ill