What are the conditions governing the validity of gifts made during a life-threatening illness (marad al-mawt)?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The execution of gifts made during a life-threatening illness is contingent upon their effectuation being within the one-third limit (Thuluth) or requiring the approval of the heirs. Such a gift is not valid for an heir unless approved by the remaining heirs. The virtue of such a gift is lesser than the virtue of charity given during health, as evidenced by the Hadith where the Prophet (peace be upon him) stated that the best charity is given while one is healthy and desirous, fearing poverty, and not delaying until the soul reaches the throat. These gifts compete with bequests regarding the one-third limit. Furthermore, the determination of whether the gift falls within the one-third limit is assessed at the moment of death, not before or after.
Supporting text
The primary opinion holds that the gift is obligatory upon the giver and irrevocable, even if extensive, because the restriction against exceeding one-third is for the right of the heirs, not the giver's right. Unlike a bequest, the giver cannot revoke the gift; the right to revoke only applies to bequests because their final donation is conditional upon death.