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In our last issue, we unlocked the operations of Will in Islamic Jurisprudence. Another important aspect of Islamic way of transferring one’s assets is through “Hibah” or “Gift”. Similar to Will which crystallised after death of person creating Will, “Hibah” or “Gift” also takes effect after death of person creating “Hibah”. However, as discussed before, method of distribution of properties prescribed in a Will does not automatically take effect without consent of all heirs. Hibah, on the other hand is considered a more favourable way of conveying one’s properties in accordance with Islamic Jurisprudence. The operation of “Hibah” is more certain in that methods of distribution of one’s properties cannot be challenged. A person creating Hibah will have a peace of mind knowing that his or her properties will go to beneficiaries exactly what he or she wishes for as stipulated in a Hibah. It has raised question, however, the need for Hibah if one can convey his or her properties by way of transfer during his or her lifetime. While it is true that the operations of Hibah and Transfer brings similar effect, these documents differ in their crystallisations or time of taking effect. Transferring one’s properties takes effect once all necessary documents to transfer is endorsed. It is an outright transfer which leaves the transferee with no power or control of the properties during his or her lifetime. Hibah on the other hand, although brings exactly same effect of transferring to certain definite beneficiaries, only takes effect after the death of person creating Hibah. He will know for sure that his properties will be distributed the way he wants it be. Unlike outright transfer, he will during his lifetime, has power and full control of his properties. If he changes his mind due to change of circumstances or for whatever reasons, he can change the terms in his Hibah as he wishes anytime during his lifetime. | This will not be if he makes an outright transfer of his properties. This will safeguard his livelihood without being deprived of his properties in his lifetime. Another plus point for Hibah as opposed to transfer is cost effective. For a transfer, certain transfer cost has to be incurred in accordance with the transfer fee schedule. Hibah on the other hand does not fall into certain fee schedule no matter what the value of the properties. The only payment could be solicitors’ fees if it is brought to the High Court for distribution of properties above RM600,000.00 in total value. As noted previously, if the property value is RM600,000.00 and below, the distribution falls under the Small Estates (Distribution) Act 1955. It will be handled at the Land Office by the Collector of Land Revenue for distribution in which there is no cost involve except probably a small fee in filing forms for distribution. After having laid down the principles surrounding documents for distribution of one’s properties i.e Will, Transfer and “Hibah” or “Gift”, it is apparent that “Hibah” looks more favourable in terms of certainty and cost effectiveness. The methods of distribution is in accordance with the terms stipulated in the Hibah and is not open to any challenge whatsoever. As such, if you wish for your properties to be given to your intended beneficiaries without any hindrance and challenge then you may wish to create “Hibah” document instead of Will. Note: We at KIQ with two partners both competent and handled various matters before the Syariah Court are more than happy to hear from your for legal advice and consultation. |