1.A father wants to give 1/3 of his property to his 2 daughters as gift. Then again he wants to make a will giving 2 daugthers equal to one son . Is that permissiable ?
Answer:
In the name of Allāh, Most Gracious, Most Merciful
Assalāmu ῾alaykum wa Rahmatullāhi Wabarakātuh
1) Regarding a father giving one third of his property to his two daughters as a gift, two possibilities arise:
At the time the father gifts his daughter with one third of his property he is not in the final stages of life termed in Arabic as “maradh al-mawt”. In this case, gifting his daughters with any amount of his wealth, even exceeding one third, is permissible.
However, when gifting one’s children, it is important to maintain equality between all of them, both sons and daughters. This lesson has been masterfully conveyed to us by the best of all teachers, Rasulullah (sallallāhu ‘alayhi wa sallam), in a hadīth mentioned by Imam Bukhārī (r.a.):
Nu‘mān ibn Basheer once narrated a story whilst on the pulpit. He mentioned that his father intended to give him a gift despite having other children whom would not receive a similar gift. When his father requested the Messenger of Allah (sallallāhu ‘alayhi wa sallam) to witness the gifting, the Prophet (sallallāhu ‘alayhi wa sallam) asked, “Did you also present your remaining children with a similar gift?” His father replied in the negative. The Prophet (sallallāhu ‘alayhi wa sallam) then responded:
فَاتَّقُوا اللَّهَ ، وَاعْدِلُوا بَيْنَ أَوْلاَدِكُمْ. قَالَ: فَرَجَعَ فَرَدَّ عَطِيَّتَهُ. و في رواية لمسلم قَالَ: فَلاَ تُشْهِدْنِى إِذًا فَإِنِّى لاَ أَشْهَدُ عَلَى جَوْرٍ.
“Fear Allah and observe equality amongst your children.” In another narration mentioned my Imām Muslim, he said, “Do not call me to witness this gifting. Indeed, I do not bear witness to inequality.” Thereafter, Nu‘mān’s father, Basheer, returned the gift to its original owner. –Bukhārī and Muslim
Therefore, unless there is some compelling reason, one should avoid favoring one or some children over the others in matters of gifting. This principle is irrespective of the gender of the child as the hadīth stated that the Prophet (sallallāhu ‘alayhi wa sallam) ordered for equality amongst our children in general, not sons or daughters specifically. This differs from the issue of inheritance which, insha Allah, will be clarified later in the response.
At the time the father gifts his daughter with one third of his property he is in the final stages of life (maradh al-mawt). During this stage of life, one is allowed to leave a wasiyyah (bequest) from up to one third of his wealth. However, this wasiyyah can only be distributed to those who are not already an heir. The Prophet (sallallāhu ‘alayhi wa sallam) has stated in a portion of a hadith narrated by Abū Umāmah:
“Indeed, Allah has given every deserving person (heir) an allotted amount [of inheritance]. Therefore, there will be no bequeathing [additional wealth] upon an heir.” -Tirmidhī
Consequently, since a daughter is already an heir, she will not be allowed to receive any additional wealth beyond her allotted share of inheritance if her father is in his final stages of life (maradh al-mawt).
In all cases including the two mentioned above, two daughters will receive the share equivalent to that of one son when the deceased person has both a living daughter and son.
This cannot be undone and I am sure it will be greatly appreciated.
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