What's the Difference?
A hibah is a gift completed now, during your lifetime. A wasiyat is a bequest that only takes effect at death, capped at one-third of your estate, and can't go to an existing heir without unanimous consent. They're not two versions of the same tool — they solve different problems.
| Hibah | Wasiyat | |
|---|---|---|
| Takes effect | Immediately, during your lifetime | Only at death |
| Amount limit | No cap | Capped at 1/3 of the net estate |
| Who can receive it | Anyone — heir or non-heir | Non-heirs only, by default |
| Revocable? | Generally irrevocable once possession transfers | Fully revocable any time before death |
| Documentation | Best practice: written + witnessed; possession must actually transfer | Written wasiyyah document, reviewed and updated as life changes |
Why the One-Third Cap Doesn't Apply to a Hibah
The one-third cap exists specifically because a wasiyyah acts on your estate at death, competing with the fixed shares Faraid has already assigned to your heirs. A hibah happens before death — by the time you pass away, the gifted asset was never part of "the estate" being distributed at all, because possession already transferred. That's a genuinely separate mechanism, not a workaround for the cap: a wasiyyah promises a future transfer at death, while a hibah is a completed transfer now.
When to Use Which
Use a hibah when
You want to give a specific heir something extra during your lifetime with certainty, or transfer an asset to anyone — heir or not — without the one-third limit.
Use a wasiyyah when
You want to name a charity or a non-heir to receive something after your death, while keeping full control and the ability to change your mind until then.
You Can Record Both
A complete estate plan often uses both mechanisms for different purposes. Wasiyat lets you record a hibah and build your wasiyyah in the same place, alongside your full Faraid calculation.
Frequently Asked Questions
Can I gift my entire property to one child through hibah?
As a hibah, yes — it isn't subject to the one-third cap that limits a wasiyyah, because it takes effect now, during your lifetime, rather than through the estate at death. It is, however, a real and often irrevocable transfer: once possession genuinely passes to the recipient, you generally cannot undo it later. This is a serious decision, not a workaround to plan around Faraid — treat it with the same care as any large lifetime transfer.
Is a hibah legally binding without registration?
A hibah's core requirement under Islamic law is a genuine, completed transfer of possession — not registration itself. In practice, for real estate specifically, Indian property law generally requires registration for the transfer to be effective and defensible, so treating registration as necessary (not just advisable) for immovable property is the safer position.
Can I leave my wasiyyah to my son even though he's already an heir?
Not by default — the hadith "there shall be no bequest for an heir" (Abu Dawud 2870) makes a bequest to an existing heir void unless every OTHER heir unanimously consents to it after your death. If you want to give a specific child something extra during your lifetime with certainty, a hibah while you're alive is the more reliable mechanism than a wasiyyah aimed at an heir.
Which one should I use to give money to charity?
Either can work, depending on timing. A hibah to a charity takes effect immediately and isn't capped. A wasiyyah to a charity draws from your one-third discretionary share and only takes effect at death — useful if you want the option to change your mind, or don't want to give up the asset now. A waqf (a permanent charitable endowment) is a third, related option worth considering for something you want preserved indefinitely rather than spent.
This page provides general information, not a legal opinion or fatwa. Consult a qualified scholar and a lawyer licensed in your jurisdiction before completing a significant lifetime transfer.