A genuine lifetime gift is valid and falls outside the estate. A transfer made in the final illness is treated as a bequest and caught by the one-third rule.
The Canadian position
Canadian law recognises inter vivos gifts, but a gift of appreciated property triggers capital gains, and gifts made shortly before death can be examined in a dependant support claim.
The Islamic position
Hibah transfers ownership immediately and is not subject to the one-third cap. But a gift made during marad al-mawt — the illness one dies from — is treated as wasiyyah, precisely to stop the shares being defeated on a deathbed.
All four schools treat a gift as an act that has to be completed, not merely intended or announced, and in every school the completing act is qabd — the donee actually taking the thing. What they differ over is what qabd does. For the Hanafis and the Shafi’is nothing at all happens until possession is taken: no ownership passes, and the donor may still change his mind. For the Hanbalis ownership passes on the contract but the gift only becomes binding on delivery. For the Malikis the gift is valid on offer and acceptance and the donee can go to a judge to force delivery, but it is not binding until he has it. The practical consequence is the same in every school and it is the one that matters when someone has died: a gift that was promised but never delivered is not a completed gift, and the asset was still the deceased’s when he died.
All four Sunni schools researched and sourced. Reviewed 2026-09-01. Full positions, evidence and sources — When is a lifetime gift complete and beyond recall?.
Related madhhab issue: A gift made in the final illness — gift or bequest?.
Making an Islamic will in Canada — province by province, and what makes one valid where you live →
Using lifetime gifts specifically to cut an heir out is the situation the marad al-mawt rule exists to prevent. Take scholarly advice, not just tax advice.
This is legal information only. For advice on your own circumstances, speak to a lawyer.
Citations & sources
Every factual claim on this page traces to a source below. Details change — check the original source before relying on any figure, fee or legal position. Anything under “further reading” is related material, not a source for what is stated here.
- Surah an-Nisa 4:11 — shares of children and parents — Quran.com
- Surah an-Nisa 4:12 — shares of spouses and uterine siblings — Quran.com
- Surah an-Nisa 4:176 — the kalalah verse — Quran.com
- Sahih al-Bukhari, Book 55: Wills and Testaments (Wasaya) — Sunnah.com
- Sahih Muslim, Book of Wills — Sunnah.com
- Egyptian Dar al-Ifta — Dar al-Ifta al-Missriyyah
- What to do when someone has died — Canada Revenue Agency
- Cottage capital gains tax death ontario — Treadstone Law
- Dependant support claim ontario estate — Treadstone Law
- Difference inter vivos testamentary trust ontario — Treadstone Law
- Testamentary vs inter vivos trust ontario difference — Treadstone Law
- Wills & estates practice — Treadstone Law