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Fatwa CenterEndowment during death sickness and making it contingent on death
Question
Is it permissible to specify a certain piece of land as an endowment so that it can not be taken by the heirs in the future?
Please advise. May Allaah Reward you.
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
When a person completely specifies as an endowment a piece of land or any other thing from those which are permitted to be endowed during his lifetime, by saying, for example, “I have allocated this completely for the Sake of Allaah”, this thing has already come out of his ownership and therefore it is not subject to the laws of inheritance after his death. But if he specified this thing before his sickness with stipulating the condition of his death, such as his saying “This land will become an endowment after my death”, according to the preponderant opinion of the scholars, such an act is valid.
The Hanbali scholar, Ibn Qudaamah 
said: “But if he said, ‘This will be an endowment after my death’, according to the apparent meaning of Al-Khiraqi and Ahmad’s wording, such an act is valid and it will be deemed among the prescribed third as with all other wills.”
If he allocated his endowment before sickness by conditioning that it would come into effect after his death, such an act is valid and it would be taken from the prescribed third. But if the endowed property exceeded the prescribed third, in this case the approval of the heirs whose permission counts is due because the extra amount will be taken from their shares only. This refers to those who are adult and right-minded among the heirs. The permission of the other heirs is not due because the extra amount will not be taken from their shares.
But if he specified the endowment during his death sickness, this would be taken from the prescribed third. What is more than the third will not be taken without the heirs’ permission, according to the aforementioned stipulations.
Allaah Knows best.
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