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Fiqh of Transactions #26 – Gifts From The Terminally Ill

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Hatem al-Haj

Channel: Hatem al-Haj

Series:

Episode Notes

Episode Transcript

© No part of this transcript may be copied or referenced or transmitted in any way whatsoever. Transcripts are auto-generated and thus will be be inaccurate. We are working on a system to allow volunteers to edit transcripts in a controlled system.


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In order to proceed, so this will be the last chapter in federal financial transactions. It's bhavati isn't married. It is the chapter on gifts from the terminal em.

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In his book along,

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says here about Maria beratan Maria de matar noted mahul for men who often how fi can Maria de la can read kawaki beta Safina and the hermit pattern, woman put demario patella, what occupies rockabilly Buhari, Jana Aman wakatobi Villa de la Vega will note hochma hochma clt EPC.

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He says there is a ruling on donations from someone during the m&s from which he or she is expected to die. The same rulings apply to or applies to the same ruling applies to others with similar fears. Like one standing between the two ranks, before battle or in route to be executed or in a storm at sea or inland infested by plague, given the death actually follows the ruling is that

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such a donation is to be treated as our see a bequest in six respects. So it will not be like a big West in all respects. It will be treated like a big question six respects and unlike a big West, in four respects, that we will come to what are what are we trying to say here? We're trying to say that when you are

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when you are not sick?

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Let's first define what sickness are we talking about here? These are talking about my hoof that

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sort of like a perilous condition like certainly life threatening, life threatening maybe the best translation for this. So life threatening,

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and terminal, and followed in reality by this. Because if it was not followed by death, then we will go back retrospectively and say that your gifts during that period, were all valid and binding and will not be treated like gifts of the terminally ill, they'll be treated like gifts, if anyone has a sort of a normal person who's not terminally ill, if you decided to give a major gift and like a huge gift to your neighbor, can someone you know contest that? No.

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But if you are terminally ill, or if you are in one of these perilous situations that amount of an epidemic likened to terminal illness. If you are terminally ill, or in one of these situations that interview Kodama likened to terminal illness?

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Will you be able to do that?

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No, you're not?

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What would you be able to give a gift to anyone? Yes, you will be able to give a gift but that gift will not be treated like any other gift that you would have given.

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You know, during your sort of

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healthy life. It's not going to be treated like this. Why? Because talakad was a bit man. Because during your terminal illness, the heirs the inheritors, they have rights now attached to this wealth.

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And that's, you know, part of the difference between

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Islam is pretty liberal, by the way, you know, it's, you know, but there are certainly differences between

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between Islam and liberal thought. It is liberal in the sense that it does respect to a great great extent individuality and respects to individual freedom, respects choice and so on. But there are certain limitations, and we have to be observant of those limitations. You're not either not just fall off of a tree. You came from a lineage and you have your own lineage you have so so there are rights,

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you know, on you.

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And there are entitlements and you have to

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You know, there are obligations on your rights for others that are related to you, whether you're the are your ancestors or your descendants. And yet we have to be observant of this. So someone who's terminally ill may decide to act against the

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interest of their whatever, of their inheritors. And if they did, then we won't have to put brakes on the, we will tell them, that Allah subhanaw taala had allowed you one third of your wealth, to do whatever you want with it, after your this, so even, you know, even after this, you could say, when I die, this goes to, you know, for land or so and so and that goes to so and so. And, you know, so you could distribute up to one third of your estate among people other than your inheritors. But Islam will not allow you even though Islam does respect, freedom of choice and individuality. You know, first of all, personal freedoms and all of that stuff. Islam does not allow you to have kids

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and to have like brothers and sisters, and to have both parents and then bequeath all of your estate to your cat, it's not going to happen.

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So it will let you know that that is not happening.

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So the idea here is, is that it's that balance between your personal freedom and also the rights of your kin, and the society.

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So that gift of the terminally ill, they will treat it like a bequest, they'll say, okay, you can you know, you're terminally ill now, you're gonna die tomorrow after tomorrow, it's fine, you could give gifts, but that gift has to come out from that one third. And if it did not come out from the one third, no, your inheritors are entitled to two thirds of your state. We will not

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we will not recognize we will not validate that gift

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if it is more than one third of your estate.

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So let's let's go over the technicalities here.

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You cannot give out the one third to an inheritor unless it is permitted by the other inheritors

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as a gift, yes, then it will have to be because it's treated like a bequest in this case. If you're terminally ill it is treated like a bequest and if it is treated like a bequest you could not you cannot bequeath to an inheritor unless that was validated by the other inheritors.

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Okay.

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So, where are we where is where is the gift of the terminally ill like?

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Where is it like a bequest, the first of the six similarities between gifts of the terminally ill, and bequests? Hahaha, and usually as an OB and busy editing Allosaurus, whatever the word is in between the ages of

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Lemuria and Narayan.

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casita, nam lukina, and the mountain, the miracle room for

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purchase

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after Kathleen.

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First it is permissible it is impermissible for an engineer to be non relative to be gifted more than one third, or for awareness, a family member receiving a fixed Chair of inheritance to be gifted anything in addition to his or her inheritance without the permission of the other heirs. This is based on the report of a man who freed six slaves as he was dying, and he possessed no wealth other than them, the Prophet sallallahu Sallam summon them and divided them into three groups then he freed to and the return for the enslavement or kept for an enslavement. So here

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here they're saying that the first the first similarity between gifts of the terminally ill and the first gift is a gift. So tirmidhi and bequests is that you cannot be squeezed more than one third of your inheritance to anyone except with the permission of the inheritors. You cannot be squeezed any part of your inheritance to one of the inheritors because they already have a designated share, you know

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except by the permission

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Have the other inheritors, because they have the right they can permit you to do that. But without their permission, you cannot, you cannot be quizzed more than one third to anyone. You cannot be quizzed anything to

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an inheritor.

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In addition to their inheritance, you cannot give them any more than what Allah designated for them. In both cases, the exception is to be permitted by the inheritors. And if you're permitted by the inheritors, you may do that, but they may recanted at the time of year this. So that's why, like I said in the previous session, if you want to ensure that you have like a disabled child or a child who has certain limitations, and you want to give them something more than your only way would be to retain some property and trust for them or make up okay.

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And so he said that the this is based on the Hadith where the Prophet where a man had six slaves, and he prayed them all before his death and did not leave anything. Well, at the time. You know, you should read my appendix on slavery and so on the the, there is no religion that is more sort of

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emphatic about the emancipation and the virtue of emancipation and the perishing emancipation, that Islam, but during that time, they were the

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property, and someone who had six slaves and freedom or did not have the capacity to do that does not have the legal capacity to do that. So the Prophet sallallahu Sallam free two out of the six because that's what that would be one third, because he has the legal capacity. Now, if he's terminally ill, now if he was not terminated, and he did it, good for him, you know, no one was, no one would have any sort of caps on this. But if he now that he's terminally ill, he does not have the capacity to dispose of more than one third of his estate does not have the capacity.

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Then the sheikh said a 30 the second similarity between gifts of the terminally ill and bequests of Fannie and Korea todo Viva la hora de la mia as soon as the Jamia Saba, this applies to slaves in particular, when slaves are the property being freed. Freedom is granted to some slaves and not others, on the basis of Cora casting lots, when one third of the dying person's estate is not sufficient to account for them all, as explained in the aforementioned report. Certainly, if someone had six slaves and the six slaves, his his, he has other properties, the six slaves came out from the one third, all of them would be freed, all of them would be freed, because all of them are less

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than one third of his estate. All of them will be preserved.

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But if some of them have to be frayed, which ones do we choose casting lots? Because that is the fairest sometimes it looks like a little bit, you know, to dislike, but that would be the fairest. you're removing favoritism completely by casting lots. Because it is. Yeah.

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That is the only way that you completely remove favoritism.

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It doesn't have to be flipping the coin. You get castling. Ross is not flipping but flipping the coin is a form of Casanova in the same principle, you know, so flipping the coin is also a valid way.

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Then

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salice the third similarity between gifts of the terminally ill, and

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bequests and now is the article on the Euro mahaya. Now, Helen

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Keller, who could it have been, if an inter indeterminant slave is to be freed or if one was specified, but there is confusion as to which one the slave actually freed is selected via Cora, our casting was

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the fourth the fourth similarity between gifts of the terminally ill and bequests and now we have ministers head and mouth fellow artica Abdullah Mehta, who co wrote about Ravi medica in the Moto, moto e. W.

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And takaku hidden at work and America vertical in Sara Lee dainius Taku meiotic men who say what will be what I was, say in front of me, Moosa. Now who is a man goodway Malhotra he worked at Motorola worked.

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Okay, so Ravana

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mode, the forum

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A gift from a person facing death must come out of the one third of the dying person's entire wealth upon his or her death, the deceased may have freed or donated a slave and previously owned nothing else besides Him. If the deceased later acquired wealth equivalent to double the slaves value and die possessing that, then the slaves many emission would be considered retrospectively effective from the time the slave was freed. This is because the slaves value ended up being equivalent to one third of the deceased wealth, since what was earned afterwards was also part of that wealth. Okay, you're getting confused?

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We should, because it's, you know, he's saying that we are saying that whatever property you will give as a gift, when you're terminated, will be treated like a bequest in the sense that it should be less than it within to be within one third of your estate, when do we make that determination?

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At the time of death, not at the time of gifting the property. So let us say, half the time

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let us say,

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let's use a factory here, as a

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more relevant to us. So you have a factory.

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And so, two months before your death.

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So let's say in April,

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in April, you gave that factory as a gift

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to someone

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in June, you died

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between April and June

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Are you planning to get married?

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So

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so you have April, April, you donated this factory, you gave it away as a gift.

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June the person died. In April, that factory was less than one. In April of that factory. Let's say that the factory was for 200 and

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wholly owned at the time was $300 $300 is your your entire estate have the factory was 200 and you gave it away to someone in April. But between April and June, you earn 300 more. So your state became when you died 600 and the factory 200. So does this person get the factory now? The entire factory? Yes, because it doesn't matter that the factory was more than one third at the time of the gift, what matters is that it was within the one third at the time of this and now that you got the person got the factory, what about the profit that was made? What about whatever the profit made between April and June who gets the profit?

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The recipient, the recipient of the gift, because we will know retrospectively that the gift was valid. And that is one of the dissimilarities between gifts and bequests. It is effective immediately. Once it is validated after this, we will consider it effected retrospectively in other way, whenever profit was made, by that

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gift, healed he sort of any profit that accrued in

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It will be, it will belong to the recipient, not the donor.

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Okay.

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But then he said on the other hand, if the deceased had incurred a debt equal to or greater than the value of the slave, the slave would not be considered to be freed or donated at all. Also, if something is bequeath to a person, but that person delays taking it, the bequest is calculated in relation to the deceased's wealth, as of the time of death, not the time when it is eventually taken. Okay, so that factory was $200. And at the time you gave, he gave you the gift, the person had 600, the estate, the total estate was 600, he lost, he lost 200.

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And then his estate became 400.

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At the time of death, his estate depreciated became 400. And the factory is still 200. That's very CPM to get the factory know what this very CPM to get

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400 a month divided by three is what

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133 and third

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that is, that is what he gets out of the factory. So he will get a portion of the factory, the portion of the factory that he will get is what

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133 and 30

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over 200

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that is the the portion. So he will get about

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over 200

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because the factory

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the factory is $200.

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So he would get 60% of the factory, they'll get about 67% of the factory.

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The profit we will have in this case, to figure out it will be a very difficult arithmetic problem, but we will have to figure out figure it out, because he has because the we will have to calculate the profit because the profit will be added to the general estate. And then then the profit will have to be what is the recipients. But his share of the profit will depend on his share at the time. They he received the his share in the factory, but it will be like arithmetically complicated, but you you get the concept anyway.

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Then,

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in this case, he had the factory. In this case the the value of his estate depreciated. The factory that was within the one third at the time of gifting is not at the time of death. But what matters is what happens at the time of death. The other scenario that he mentioned here is when the crop deposition is delayed. So you have been given the track tree at the time of death, let us say at the time of death, the factory was 200 and the estate was 600.

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But you did not get the factory until two months later. And at that time, the factory was 300. And the estate was 600.

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When we consider the time of possession, or the time of death, time of death. So basically just remember,

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what is considered is the time of death in terms of the factory coming out or in terms of the gift coming out from the one third. And Tom is the fifth similarity between the gifts of the terminally ill and bequests and akona who were in funny autopilot and multifeed him fellow alpha who was the one

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who saw hot allottee what we're seeing here hello Canada hoping to format bottled water. Whether the first similarity whether or not the one receiving a gift from a dying person is considered to be an heir is determined concerning both of them at the time of the death of the donor. If the one facing the have no sons and made a bequest or promised something to his or her brother, but then had a son than the bequest or promise will be valid. However, if the son died

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Before the deceased parent, then it the bequest or the gift would become invalid.

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The Time of death is what matters. The Time of death is what matters. Now, you did not have kids and you have a brother.

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You had a brother and you bequeath he gave a bequest, half something to your brother. Okay, you gave a bequest to your brother something in bequest to your brother, he did not have give

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you brother, if you did not have kids would be one of the heirs or not. Yes, would be one of the heirs.

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Okay, so if your brother as one of the heirs,

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if your brother

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will certainly like you need not to have a father also, but for your brother to be one of the heirs. But let's say you don't have a father. You don't have a father, you don't have a son. So if you're a brother as one of the heirs, you give them bequest to your brother, you give a bequest to your brother. He's this request valid? No.

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But can we validate? It depends on the time of death depends on the type of this. Let's say you have a newborn son. between that time and the time of death. You gave the your brother the gift in May. And even though you're terminally ill you have a son before you died in June.

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Before he died in June, when your brother be deserving of the bequest? Yes. Even though at the time you made the request. He was not deserving. He cannot give it a bequest because he's one of the inheritors. But since at the time of death, he was not one of the inheritors. We figure that retrospectively, he was actually he was deserving.

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Our he is deserving of the request. Now, flip this, flip this,

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you gave your brother a bequest. When you have a son.

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You have a son, you give your brother a bequest.

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Unfortunately, the son died here.

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Before this, your brother became what an inheritor? Does he get the bequest? No, he does not.

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Because what matters at the time of death, at the time, you gave me the bequest for him, it was a valid one because he had a son. And he was not an inheritor. But at the time of death, he was actually an inheritor. Because the Sunday

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service and

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Alibaba multifilament, the approval or disapproval of the IRS is only given consideration after the actual death takes place. So like I said to you before, when I explained that to you, the walk fit issue, you know, you have one of your kids, you say to all of your kids down and you tell them your brother has this sort of mental issue? Or has this limitation has this disease? Had I want to give your brother a little bit more, you know, and all the kids are so nice and accommodating and stuff? And they say, absolutely, you know, we would have actually given them out of our own pockets? And, you know, and then you die. And they take it back? Can they take it back? Yes, they can take it

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back? Because, because, because, because it makes sense. Because maybe you push them into you force them. Maybe they were not willingly approved, approving that extra that you had given to their assembly and being the father or being the parent, you have your own ways of just like forcing things down their throat. So they then the recanted? Will they be able to do this, they will be able to take care, the only way that you could actually guarantee that you could leave something is to make a

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trust for that particular child.

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So does this apply? So so that time when the airs who when are we talking about this, we're talking about that bequest or a gift of the terminally ill, that is more than one third? have now the heirs when have the right to say yes or no? Or we're talking about a bequest or a gift of the terminally em to one of the inheritors. And now the rest of the inheritors have the right to say yes or no. In these cases. If they said yes, they can take it back at the time of death.

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So, what matters is the time of this the approver this approval is, you know considered at the time of this because that now they are there, their freewill

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what to fire it was a

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bar gifts from someone facing death differ from bequests will say with respect to four rulings, we said that there are many similarities between the gift of the terminally ill and Australia because we are not considering this to be our say of a healthy gift of a healthy person that will be effective immediately. Complete transfer binding complete transfer of ownership will happen immediately. And then, now we're saying that since the person is terminally ill, there are rights attached to the estate now, that's the rights of the inheritors, or to at least two thirds of the state now. But there are still differences between saying to someone when you're terminally ill,

00:31:03--> 00:31:44

there are differences between I give you this as a gift, and he accepts it or she accepts it and bequeathing it to them. There are differences. The obvious difference is, when you bequeath something to them, they are not entitled to it until you die. Clearly, they are not entitled to any profit until you die clearly, because this is a gift that is contingent upon hear this, only the bequest, but gift of the terminally ill is different. So here are the four differences between the gifts of the terminally ill, and the bequests, how to her

00:31:45--> 00:32:00

and allow the attempt to zoom in here for the watercraft and how auto insurance or more modern America what what gets blue weather wasabi out the barrel meiotic What am liquid musala who in battle mode,

00:32:01--> 00:32:26

fee minima and non-fossil for what it was a gift is effective immediately. When someone to free a slave or donate him or her to a person, the freed slave would be emancipated at once, and the donated slave would belong to the recipient with with the slaves earnings belonging to the new master. But if a person decreases his slave

00:32:27--> 00:33:03

in his or her was the, to a person, the slave is neither free nor owned by the recipient until after the person's death. As for what the slave earns up until the person's death, or any other growth of the gifted property that can be separated from the principal gift. This belongs to the heirs. Is it clear? That's what we said. So you know, the factory and the profit of the factory. We said that he gave the factory away in April and then you died in June.

00:33:04--> 00:33:06

Not you particularly like we're talking about

00:33:07--> 00:33:08

but

00:33:09--> 00:33:10

just like Yeah.

00:33:12--> 00:33:36

So someone gave a gift and then like the factory away in April they died in June, have have this factory was a big West, the profit of the factory belongs to whom the air is their inheritors, not the big waste, not the person who was given the factory in bequest.

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The Legacy In a sense, the recipient of the bequest, but if this was a gift, in other words, say the profit of the factory goes to whom the recipient the legacy

00:33:54--> 00:33:55

that's clear, good

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Sani and olatuja autoboca Budo hora de la Hina. Judea Katia disciple was here today or tomorrow Kabuto, Colorado in Nevada, musi the acceptance or rejection. The second this similarity between the gift this similarity between the gift and there was a acceptance or rejection of a gift is taken into legal consideration at the time of the offer. Just like the gift of a healthy person, whereas the acceptance or rejection of a bequest is only taken into legal consideration Upon the death of the litigator Upon the death of the alligator. So we said that there has to be offering an acceptance for the gift of the terminally ill when is that? When is the acceptance considered at the

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time of the gift itself?

00:34:46--> 00:34:51

You know, yes, at the time of the offering, but if I

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bequeath something to you bequeath something to you, and you accept it at the time of the bequest

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Then that is not legally considered, until you accept it at the time of my death.

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Because that is when transfer of ownership happens, keep in mind in the gift of the terminal, the transfer of ownership is happening at the time of the gift, it is just 10, then 10, then coming out of the third at the time of your death, so that we can go back and say retrospectively, it was in fact effective, that the transfer of ownership

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did actually happen, had the time of the gift and was

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and then all of the rulings now will

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basically follow, profit will be yours and so on at the time of the gift, where it's only pending coming out of the one third at the time of your death, so that we can go and retrospectively say yes, that was a valid gift. And, you know, and it belongs to the recipient, and all the profit belongs to the recipient.

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The third, this similarity between the gift of the terminally ill and the bequest, the third the similarity and the gift of the terminally ill powered as a mutton lamb liquid Mati arrojo, Rafi, what was the Labradoodle via Natasha, a gift is binding immediately, and the gift giver does not have the right to recanted, whereas a bequest can be recanted whenever the alligator wishes. So, hi, give you the factory as a gift offering, you accept acceptance, and you possess, you know, you take the key. So he has that possession in terms of the factory in terms of like food, you take the the food, you actually take it, move it, hold it.

00:37:06--> 00:37:11

But if it is a factory, you take the key that's possession, you know, I have now access to the factory.

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Can I take the factory back? No.

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Are you guaranteed that you will have the factory No.

00:37:23--> 00:37:44

But you are guaranteed that I cannot take it back, you're guaranteed that if that factory when I die comes out of the one third of my state, it is yours retrospectively and all the profit is yours. I cannot take it back from you. But if I bequeath the factory, if I give you the factory as a bequest,

00:37:46--> 00:38:05

and before I die, I changed my my will I changed my all of my requests everything that can I have? Can I do that? Yes, absolutely. Absolutely. transfer of ownership did not happen. Therefore, I can really change all of my was.

00:38:07--> 00:38:07

Okay.

00:38:09--> 00:38:16

The fourth, this similarity between gift of the terminally ill and was the year and now you

00:38:17--> 00:38:37

are ready for that would mean if I bought a suit and Amelia was here to sell webinar, our men who were not Sala had hadn't because it was a Yeti. So he had kamiakin because it can help me. If I work hard to fatten, we're headed.

00:38:40--> 00:38:55

The fourth the similarity and the last. gifts are distributed according to the order in which they were designated. In cases where the one third of the dying person's wealth does not suffice for all the recipients

00:38:57--> 00:39:39

and converts the end of the year. Or conversely, in the last a year bequests are apportioned equally among all recipients and any deficit is shouldered by them all in proportion to their share of the bequest regardless of whether the menu emission of a slave was involved or not. It is the same with gifts when they are allotted all at once. Okay, the last difference or this similarity between the gift of the terminally ill and the bequest the last similarity is that when it comes to requests, let us say hi I gave you you know,

00:39:43--> 00:39:44

the Say

00:39:46--> 00:39:50

hi gave 202 x 200 to

00:39:52--> 00:39:55

202 X and 202 y

00:39:57--> 00:39:58

as gifts

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And then when I died, when I died,

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I only had 600

00:40:10--> 00:40:22

when I died, I only had 600. I gave 200 X and 200 y when I was terminally ill and then I died and I only my state was only 600.

00:40:23--> 00:40:24

So, what happens now,

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when did I give the 200 x, if I gave to the 200 x first and then 202 y second, then

00:40:39--> 00:40:45

what comes out of the 600 200 only, they will all go to X

00:40:46--> 00:40:51

because the transfer of ownership, like I said happens at the time of the gift.

00:40:52--> 00:41:05

Whereas, if I bequeath the 202 X and 202 I bequeath 200 X and 200. And I only have 600 what happens? hex will get 100 and Y will get 100.

00:41:08--> 00:41:18

They will say hi gave 200 X and 200 y as a gift, but in one statement, I'm giving each one of you $200

00:41:19--> 00:41:22

then it will be 100 than 100.

00:41:24--> 00:42:09

No, no, it will be 101 100 because it came out, you know no one statement. So, but if I did say I had when I died, I have 900 not 600 then up to 300 can be given in bequests. And if it is 202 100 in the first example where x got the 201st extra we'll get 200. And why would get what? The 100 that's left? Yeah, you understand that all? That's excellent. That's it from the law. But there are I mean, we are actually done with a fifth of financial transactions. That that's big, major accomplishment 100.

00:42:12--> 00:42:21

Next is lack of inheritance, then the lack of family than the fact of foods and hosts and they happen judiciary and then it will be done in shallow

00:42:25--> 00:42:28

Africa frequently when it will take five minutes for people to leave.