Question:
salaam. 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:
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
Ensuring one’s will is prepared Islamically is undoubtedly very important, especially in non-Muslim countries, insuring that upon death, one’s wealth and assets are distributed according to Shariah.
The Prophet ﷺ said: “It is not befitting for a Muslim who has something to make a Will of, to remain for two nights without having one’s last Will and testament written and kept ready with one.”
There are many important aspects and requirements of an Islamic will, amongst them is one must distinguish between a bequest/Will (wasiyya) and a gift (hiba). Many people fail to differentiate between the two, thus a grave error is committed.
What a person gives to another in one’s lifetime is considered a “gift” whilst attributing the giving of something after one’s death is a “bequest or Will (Wasiyya)”. For example, if I give my house to a friend whilst I am alive, then that will be a gift, but if I was to say that my friend will take ownership of my house after I pass away, then that is a bequest.
It must be noted here is that Islamically a gift is only valid and complete when the one to whom the gift is given, takes full ownership and possession of the item. Merely, registering it on one’s name is of no consequence in Shariah, hence the gift will be considered invalid. The possession in houses and properties will be established by the giving of keys, deed and leaving no obstacles for the one whom the gift is given to come and reside in the property.
Therefore the ‘living will’ in query will not be considered as given by the parent, as possession was not given over during the life. In such a case, upon the demise of the parent, the item will be part of the deceased estate, and will have to be shared equally amongst the heirs according to the laws of Shariah.
For further information on an Islamic will you may refer to
http://fatwa-tt.com/2016/02/18/importance-of-preparing-ones-will-testament-islamically/
http://fatwa-tt.com/2018/03/31/islamic-will-template-trinidad-and-tobago/
And Allah Ta’āla Knows Best
Mufti Arshad Ali
Darul Iftaa, Jaamia Madinatul Uloom (Trinidad)