When gifts are disputed: How hibah can be challenged, redistributed under faraid

SHAH ALAM - Hibah is intended to be a final act of generosity. However, if it is not executed properly during the donor’s lifetime, it can be legally challenged and reallocated under faraid (Islamic inheritance law).

In Islamic jurisprudence, hibah refers to the gift of assets made voluntarily by a donor during their lifetime to the beneficiary without expecting anything in return.

Hibah is distinct from a wasiyyah (will), which takes effect upon death and is also separate from faraid, the fixed inheritance distribution outlined in the Quran.

Syariah lawyer Datuk Akberdin Abdul Kader said hibah must be completed during the lifetime of the donor.

"It cannot be conditional. If the gift is only transferred after death, it is not considered a valid hibah," he told Sinar Daily.

He said under Islamic law, for a hibah to be valid, the donor must be mentally sound and in good health.

He said the recipient must be clearly identified and the property or gift must be clearly stated and properly documented.

A key aspect of hibah, he said also included the transfer of ownership as it must be completed while the donor is still alive.

Meanwhile, Syariah lawyer Ahmad Nazib Johari said although hibah was meant to be final, it can be revoked or invalidated under certain circumstances particularly if challenged in the Syariah court.

"A hibah executed during the donor’s lifetime can be revoked if there is proof of undue influence, lack of consent, or that the donor was not of sound mind," he said when contacted.

As such, he said there were several legal grounds for the revocation of hibah to be redistributed under faraid instead.

Lack of mental capacity

If heirs could prove that the donor suffered from a mental illness such as dementia or Alzheimer’s disease at the time of the gift, the court may declare the hibah invalid.

Evidence such as medical records and witness testimony were often used in court.

Undue influence or coercion

If the donor was pressured, emotionally manipulated or isolated, especially by the recipient, this undermined free consent, a key component of a valid hibah.

Lack of informed consent

If the donor did not fully understand what they were signing due to illiteracy, deception, or miscommunication such as thinking they were signing a trust, not a hibah as an example, the gift may then be voided.

Nazib said in all the aforementioned scenarios, the property in question would return to the deceased’s estate and be redistributed based on faraid principles.

Despite this, a question that is often asked by donors and recipients is whether hibah and faraid can legally co-exist.

He said a hibah and faraid can in fact co-exist under certain circumstances, such as functioning together in estate distribution.

"Some assets can be validly gifted (hibah) during the donor’s lifetime and the remaining assets (not covered by hibah or other instruments) are subject to faraid distribution.

"However, when a disputed hibah asset arises, the Syariah court will assess whether the gift is valid and if it finds the hibah invalid or defective, the asset is reallocated under faraid," he said.

Photo for illustration purposes only.

An example scenario can be seen where a father gifts his house to his daughter during his lifetime via a documented and witnessed hibah.

Upon his death, his other assets such as cash, car, land are distributed via faraid, but the house remains with the daughter and is not subject to inheritance claims.

In a recent case involving a RM1 million takaful hibah, it showed how disputes can arise when a hibah is not handled properly.

The case began when a takaful policyholder, who had a RM1 million policy died. In the policy, he had named his wife as the conditional hibah recipient.

After his death, the takaful company released the RM1 million payout to his widow within four days.

The deceased’s family then filed a claim in the Syariah Court to challenge the hibah, but the court upheld the widow’s right to the funds.

Unhappy with the decision, the family brought the matter to the civil court, where the widow reportedly never received the originating summons and was unable to make any submissions in her defence.

The civil court ruled in favour of the family as the widow did not file any submissions in the case, ordering that the funds be redistributed according to faraid, effectively overturning the hibah.