within the disposable one-third of his estate.
Ibn al-Qāsim—reporting from Mālik—stated that any gift made during a terminal illness is to be treated as a bequest, whether or not possession has been taken and whether or not the donor said, “Carry it out for him after I am gone.” A separate chapter on gifts made by the infirm will follow in this book, God willing.
If the donee dies, his heirs step into his place with respect to taking possession of the gift and claiming it, and the master of a slave who is the donee enjoys the same standing as the heirs of a free person.
This, then, is the distilled doctrine and the rule applied in practice: whenever the donee has not taken possession and the donor has not formally ratified the transfer before his death, the property reverts to the donor’s heirs—unless he bequeaths it to the donee, in which case it is executed from the disposable third, just as when he grants it while ill and possession is taken, for that too is charged to the third.
Likewise, if the donor attests to the gift but not to delivery of possession before he dies, the gift is void and passes to his heirs. A gift is not completed until the beneficiary actually takes possession of it before the donor’s death.
Mālik also narrated that if a man attests to a gift he has made and then dies, judgment is rendered in favour of the donee; and that if the donee dies after the donor has attested to the gift, judgment is rendered in favour of the donee’s heirs, should they pursue it. The first view, however, is the one adopted by the majority of Mālikīs.
If someone is given a house but does not take possession of it before the donor sells it, the donee has no entitlement once the gift has left the donor’s hand and been transferred to another. This is the report and opinion of Ashhab, while Ibn al-Qāsim dissented, as noted earlier in the chapter on voluntary charity.
Should a man send something to another and later wish to reclaim it, he may do so provided he has not had the gift formally witnessed. If he has had it witnessed, the transfer is binding in favour of the recipient; and if the recipient dies, it belongs to his heirs.
It is likewise permissible to gift dates.