Hibah and will are two important instruments in property planning according to Islamic law. Hibah is the grant of property that occurs during the life of a hibah provider, while a will is a gift of property that occurs after the death of a testator. Both of these instruments are encouraged in Islam, as if done properly and in accordance with the requirements of syara, can prevent disputes and property squabble. Hibah and will can also help relatives who are in need. There is a perception that by employing hibah and will, a person actually goes against the testament of Islamic Inheritance Law (faraid). This is not accurate because both instruments are given their own focus and place in Islam. Hence, this paper attempts to uncover the issues related to hibah and will in terms of their laws and application in Malaysia.
Hibah is defined as a form of a grant either in its physical form (‘ain) or otherwise. It covers gifts and alms. All three terms have similar meanings. The difference is in the purpose of the gift. Alms are grants intended for reward in the hereafter, and usually given by the rich to the poor. A gift is a contribution to honour someone and is usually related to a specific matter. It can be concluded here that all alms and gifts are hibah, but not all hibahs are alms and gifts. Hibah according to Islamic term is a contract (akad) that entails granting ownership of a property to someone else during his lifetime without any reprisal (iwad). More specifically, hibah is a contract of granting the physical form (‘ain) of owned property from one party to another party without reprisal (iwad) during the person‟s lifetime on a voluntary basis, not expecting a reward in the hereafter and honouring a person, with the pronouncement of ijab and qabul or the likes.
Based on the definition above, it can be concluded that the characteristics of hibah are as follows :
- An akad (contract) of granting property ownership to a specific party.
- The property that can be given as hibah is a physical (‘ain) property and not debt or benefits/interests.
- Hibah contract is made without imposing any reprisal (iwad).
- Hibah contract is in effect during the lifetime of the hibah provider.
- It is made voluntarily without coercion.
- The contract is made with no intension to receive reward or honour a particular person
