Validity of a Gift (Hiba) Given to Wife During Illness
Source: Fatāwā Rāshidiyyah, p. 585
Question:
What do the scholars say regarding the case where Sulaymān, during his illness, gifted (hiba) his property to his wife, and in that very illness he passed away? According to the Sharīʿah of Muhammad ﷺ, is such a gift valid?
Answer:
Al-ḥamdu lillāh, waṣ-ṣalātu wa-s-salāmu ʿalā Rasūlillāh, ʿammā baʿd!
A gift made during illness takes the ruling of a will (waṣiyyah). Hence, it is no longer considered a hiba but rather a waṣiyyah.
◄ A waṣiyyah in favor of an heir is not valid.
◄ A waṣiyyah for a non-heir is valid only up to one-third (thuluth) of the estate.
Therefore, the gift Sulaymān gave to his wife during his illness will not be counted as a valid hiba, nor does the wife become its owner, because she is an heir.
Prophetic Ḥadīth:
The Messenger of Allah ﷺ said:
((لا وصية لوارث))
“There is no waṣiyyah in favor of an heir.”
(Tirmidhī, Kitāb al-Waṣāyā, ḥadīth 2120; Nasā’ī, Kitāb al-Waṣāyā, ḥadīth 3671)
Conclusion:
The Sharʿī ruling is that the gift made by Sulaymān to his wife during his illness is invalid, and she will not receive that wealth as a hiba.
ھذا ما عندی واللہ أعلم بالصواب
