‘Hibah’ or ‘ Gift’ is basically a Muslim Wills and it is encouraged in Islam especially if given to close family members (Surah Ali Imran : 92). Prophet Muhammad, may Allah bless him and grant him peace, said:
It is the duty of a Muslim who has anything to bequeath not to let two nights pass without writing a Will about it – Al-Muwatta‘ of Imam Malik: 37.1.1Pic credit: wasitahdelima.blogspot.com
The death of a Muslim is followed by the following duties (to be performed in this order by the deceased’s family or other living Muslims):
- satisfaction of the deceased religious obligations (zakat, hajj,etc)
- payment of funeral expenses
- payment of the deceased debts (loans, mortgage, etc)
- execution the deceased’s valid will (wasiat/wasiyya) distribution of the remaining estate amongst the heirs according to Shariah principles
Generally, an adult Muslim person (of sound mind) can will away 1/3 of his (this also refers to her) estate as long as the beneficiary is not one of his heirs or those who are not entitled to inherit from him.
For instance, from a father to his adopted child or from a Muallaf (Muslim convert) to his Christian mother.
Neglecting The Will
Muslims in Malaysia usually neglect to write their Will because they know that upon their death, their estate will be distributed according to the Shariah principles, Faraid, which is a Muslim Inheritance law which stipulates how the estate of a Muslim is to be dealt with and distributed after his or her death.
If you are a Muslim and would like to bequest to non-heirs, do write your will, as long as you limit the value to only one third of your estate – unless your heirs consent to your bequest of a larger value.
Better still, if you want them to have more, give them while you are still alive. For those who wishes to be fair to all their children, knowing that under Faraid principles female receives half compared to male, make a gift or Hibah to your daughters while you are still alive.
If you are interested to make an estimate on the distribution of your estate according to Faraid, please go to this website: www.app.syariahcourt.gov.sg .
There are English and Malay language versions available. An outstanding effort by the Singapore syariah authorities.
As regards bequests from the one third, these must of course be certain possible and legally permitted. A residuary clause should always be included in the Will to act as a safety net for any bequests which may fail for uncertainty, impossibility or illegality.
As this is a mere suggestion or at the most a general guideline, we encourage all Muslims to consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence. For a better understanding of the basic of Muslim will writing, please refer to www.al-islam.org.
There basic rules pertaining to Hibah are, among others, there must be:
- The Donor (Al Wahid) or the person who gives the Hibah (the owner)
- The Donee (Al Mauhub) or the person who accepts the Hibah
- The Gift
- The Offer and Acceptance (Sighah Ijab & Qabul)
Absolute ownership of the gift by the Al Wahid is a must, therefore, property charged to the bank cannot be a gift.
Many cases of Hibah are brought before the Syariah Court as they are not often a clear cut matter. For example, a wife claimed that she was promised by the husband that the matrimonial home was a gift to her and the deed of ownership was in her name but after their divorce, the husband denied that it was a Hibah and claimed that as he paid for the property, he has some right to it.
I guess one way to go about this is for the wife to request a written declaration of the intention of Hibah or a declaration before several witnesses. Divorce, and especially a remarriage, can change a lot of good intentions and severely affects memories.
If the distribution of property is left to the laws of faraid, then the sons would get a bigger share than the daughters. So, parents would usually transfer their property to their children because they wanted each child to have an equal share, irrespective of gender. Such transfer would be considered a ‘Hibah’.
Sometimes, parents bestow such gifts to their children out of love and believe that the children will take care of them in the future. Unfortunately, that is not always the case. The elderly parents are sometimes left to care for themselves in their old age with no property to their name, so what can they do? Can Hibah be revoked?
In the case of Eshah Bt Abdul Rahman v Azuhar B Ismail (1997) XI (II) Jurnal Hukum 219, the Court stated that Hibah given by parents (or grandparents) can be revoked as long as the gift hasn’t been developed or given to another or that there were no consideration for the gift.
Consideration could change the nature of Hibah into something similar to a contract of Sale and Purchase.
In that case, the gift was given to an adopted child and the adopted parent wanted it back, but the Court decided that such gift cannot be revoked because it was not a gift by a parent (but by an adopted parent) and also because the gift was already developed (changed) by the Donee.
The right of a parent to revoke the Hibah is further affirmed on the 6th November 2008 through the decision of the High Court Kangar, Perlis, in the case of Rosinah Bt Abdul Majid & Azmi Bin Abdul Majid v Norsiah Bt Yob & Noraini Bt Yob.
In that case, a mother requested that the hibah that she gave to her children from her second marriage be shared equally with their step siblings.
However, they refused even after the mother has started the proceeding in Court. In the middle of the proceeding their mother passed away and the case was continued by the step siblings. The request of their late mother was allowed by the Court. This is good news to parents who are neglected by their children – they can revoke the Hibah and take back the property they’ve given to their children. However, this can only be done if the Hibah hasn’t been enhanced or transferred to another.
The good news is – Hibah and its revocation are recognised by the laws of Malaysia.
The bad news is : you’ve got to go to Court to revoke the Hibah.
Family problems will be open to public scrutiny.