A donor taking back his gift after the donee dies
23-3-2014 | IslamWeb
Question:
Assalaamu ‘Alaykum; Please calculate the inheritance according to the following information -Does the deceased have male relatives who are entitled to inherit: (A son) Number 2 (A Husband) -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 3 - The will which the deceased left behind and that is related to his inheritance is : MY MOTHER HAS GIVEN A GIFT TO MY 2 SISTERS AND REGISTERED IN THE LAND RECORDS OFFICE OF INDIA; NOW MY MOTHER IS NO MORE AND SHE HAS LEFT RESIDUE PROPERTY WITH OUT ANY GIFT OR WILL. MY FATHER IS ALIVE AND HE HAS GIFTED HIS PROPERTY TO MY LATE MOTHER BEFORE HER DEATH. CAN MY FATHER TAKE BACK THE GIFTED PROPERTY BACK.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
If the deceased has no eligible heirs besides those mentioned in the question – and left no father, mother, grandfather or grandmother - then the husband is entitled to one-fourth of the estate as a fixed share because the deceased has offspring entitled to inherit. Allaah, The Exalted, says (what means): {…But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt…}[Quran 4:12]
The remainder of the estate should be given to the daughters and the two sons (residuary heirs) by Ta‘seeb (by virtue of having a paternal relation with the deceased and not having an allotted share in the estate); the male is entitled to a share equal to that of two females. Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females…}[Quran 4:11]
Thus, the estate should be divided into twenty-eight shares: the husband gets one-fourth of them (i.e. seven shares), each son gets six shares, and each daughter gets three shares.
As for your question about the permissibility of taking back a gift the husband had offered to his wife before her death: if the wife had taken possession of the gift before her death, then it is impermissible for the husband to take it back. This is because the Prophet, sallallaahu ‘alayhi wa sallam, said: “It is not lawful for anyone that has given a gift to take it back, except a father who gives something to his son.” [At-Tirmithi] Moreover, Ibn ‘Abbaas 
related that the Prophet, sallallaahu ‘alayhi wa sallam, said: “One who takes back his gift is like a dog that swallows its vomit.” [Muslim]
So, if it is impermissible for him to take the gift back, then it constitutes a part of the estate and should be divided among the eligible heirs according to the Islamic Sharee'ah, and he is one of those heirs.
However, if the wife had not taken possession of the gift before her death, then scholars held different opinions regarding the permissibility of taking back a gift when the donee (person to whom a gift is given) dies before possessing or accepting it; does the gift become void (the owner of the gift is entitled to take it back) or is the right to accept and possess the gift transferred to the eligible heirs? There are two scholarly opinions in this regard; some scholars held that the gift becomes void and the right to accept and possess the gift is not transferred to the eligible heirs. This is the opinion of the Hanafis, Hanbalis, and some Shaafi‘i scholars. According to this opinion, the husband is entitled to take back his gift that his wife had not accepted and possessed before her death. However, other scholars held that the gift does not become void by the death of the donee and the heirs are entitled to accept or reject the gift on behalf of the donee and the donor does not have the right to take back his gift or prevent the heirs from accepting and possessing the gift. However, if the donor had specified that his gift is exclusively for a specific donee and should not be passed on to his/her heirs, then in this case, the gift becomes void by the death of the donee according to the Maalikis.
It is worth mentioning that this woman’s gift for her two daughters, namely the transfer of ownership of the land to them, is not to be executed except after the two daughters accept and possess the land and the mother transfers the ownership to them to dispose of the land freely (and reap the benefits of the property). If the two daughters did not take possession of the land before their mother’s death, then the gift constitutes part of the estate that is to be divided among the heirs according to Islamic Sharee'ah. For more benefit, please refer to Fatwa 92564.
Allaah Knows best.