Income from a property of a deceased

Q: My father has a property which is on my name. My father gifted my mother a yearly amount from the property over many years when she was alive which was solely for her use. My father is unwell, and is not capable of signing and making decisions because of his illness.

We are 4 children (1 son and 3 daughters). 1 son passed away years before my mother, leaving 1 grandson. Now my siblings want the yearly income that is currently generated from the the property, as they feel their mother used to receive it previously and it should now come to them. Is this money due to the children with my father alive?

What should be done with this money? Should it be put back into the business or be shared with the children? Should the money be put into a trust while my father is still alive? What is the best advice you can give in doing the right thing?

A: If the property belonged to your father and he had gifted the entire property to your mother and given her the full control over it, then since the property belonged to her, it will form part of her estate upon her demise. Thus, the income will be shared by the heirs of your mother in accordance to their stipulated shares of inheritance. Since your one brother passed away before your mother, he will not be an heir and receive any portion of the inheritance. Similarly, his dependents will not receive any share of the inheritance.

However, if your father retained ownership and only allowed her to benefit from the income, then your father is still the owner of the property. In this case, the income belongs to him and none of the children have any right in the income of the property.

And Allah Ta'ala (الله تعالى) knows best.

الهبة عقد مشروع لقوله عليه الصلاة والسلام تهادوا تحابوا وعلى ذلك انعقد الإجماع وتصح بالإيجاب والقبول والقبض (الهداية 3/282)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)