Since the discovery of oil back in 1950\u2019s, many people have\narrived, settled and living in UAE. And likewise, they have amassed wealth and\nassets within UAE too. But many expatriates living in the UAE are also still\nunaware that in the absence of a Will, recognized by the UAE legal system, the\nprocess of transferring their assets after death can be time-consuming, costly\nand fraught with legal complexity.<\/p>\n\n\n\n
Wills and other matters\nrelating to personal affairs are generally governed in the UAE by Federal Law\n28 of 2005, known as the Law of Personal Status, which is based on Islamic Law.<\/p>\n\n\n\n
In order to accommodate\nthose residents of the UAE who ascribe to different religions, the Law of\nPersonal Status permits a non-Muslim expatriate living in the UAE to elect to\napply the law of his or her country to matters of personal affairs.<\/p>\n\n\n\n
\u201cInheritance shall be governed by the law of the testator at the\ntime of his death\u201d\u2013 Article 17 of the UAE Civil Code\u201d<\/strong><\/p>\n\n\n\n If an expatriate dies without\u00a0Writing a Will, Federal Law No. 5 of 1985, concerning the issuance of Civil Transactions Law of the UAE (the \u201cCivil Code\u201d), and Federal Law No. 28 of 2005 regarding the UAE Personal Status Law (the \u201cPersonal Status Law\u201d) guide the local Courts on the distribution of assets, only where it is not contrary to public policy. In some cases, it is possible that the Courts will apply principles of Shariah law to the estate of a non-Muslim and therefore mandatory rules of division between certain members of the deceased\u2019s family will apply.<\/p>\n\n\n\n As a practical matter,\naccess to the assets of the deceased individual is restricted. Assets cannot be\ntransferred or be dealt with in any manner without direction from the local\nCourt. In some circumstances, this can give rise to delays and financial\ncomplications at a critical time.<\/p>\n\n\n\n Many expatriates fail to\nput measures in place to protect their families and their assets. Even where\ninvestments are offshore in foreign jurisdictions, individuals fail to consider\nwhat would happen to infant children, UAE bank accounts, their freehold\nproperties or shares in this country? Serious complications can occur when\ninfant children are left behind and no guardianship arrangement recognized in\nthis country has been put in place. In default, Sharia Inheritance rules would\napply to property and it would be at the discretion of a local judge to choose\nthe child\u2019s guardian.<\/p>\n\n\n\n A \u2018will\u2019 is a legal\ndocument which permits a person (testator), to make decisions on how his\/her\nproperty will be managed and distributed after death. A will can be created by\na person at any stage of life. And a will shall be enforceable only after the\ndeath of the testator. Through \u201cwill\u201d a testator can transfer his\/her property\nto any person he\/she likes, such as Faithful servant, handicapped children,\nwidowed daughter and they are termed as \u2018legatee\u2019 and such person(s) shall be\nthe beneficiary to the legacy as per law.<\/p>\n\n\n\n If a person does not leave\na will, or the will is declared invalid, the person will have died intestate\n(not having made a will before one dies. Because of the importance of a will,\nthe law requires it to have certain elements to be valid. Apart from these\nelements, a will may be ruled invalid if the testator made the will may be\nruled invalid if the testator made the will as the result of undue influence,\nfraud, mistake etc. It is very much important to write a will because it\nsafeguards a person\u2019s right to select an individual to serve as guardian to\nraise his\/her young children in the event of his\/her death.<\/p>\n\n\n\n A will must be created by a\nperson, being major, and of sound mind. A will must be in writing and signed by\nthe testator (except privileged will by soldier\/airman engaged in warfare or a\nmariner being at sea). The signature must be placed in such a way that it shall\nappear that it was intended to give effect to the instrument as a Will.<\/p>\n\n\n\n Any person can be a legatee\n(beneficiary by the Will) including a minor or a lunatic. However, a bequest to\na person not in existence at the time of testator\u2019s death is void (This happens\nwhen the legatee dies before the testator). A minor can bequeath property\nthrough executor\/trustees until the time of attaining majority.<\/p>\n\n\n\n Registering a will shall\navoid the pre-set inheritance formulae \u2013 i.e. what is known as \u201cforced\nheirship\u201d \u2013 of Sharia Law potentially being applied during \u201cProbate\u201d. \u201cForced\nheirship\u201d is a form of testate partible inheritance whereby the estate of a\ndeceased is separated into an indefeasible portion, the forced estate, passing\nto the deceased\u2019s next-of-kin, and a discretionary portion, or free estate, to\nbe freely disposed of by will.<\/p>\n\n\n\n \u201cProbate\u201d generally\ndescribes the legal shenanigans that ensue after somebody has died. As a\nprocess, Probate aims to sort out all the legalities in one go, and usually\nwon\u2019t let any assets at all be accessed until every last detail of all asset is\nsorted out: who gets what in what country according to which law. Probate in\nthe UAE has been dramatically streamlined with the launch of the Wills &\nProbate Registry last year and now, with the launch of the Property Will\nPortal, made even easier for expats to put their minds at rest over their legal\nsituation if they die in the UAE.<\/p>\n\n\n\n \u201cYour Property Will represents an extremely valuable and important\nlegal document and you are strongly advised to consider taking legal advice in\nits preparation and indeed any Will to be registered at the WPR\u201d \u2013 DIFC<\/strong><\/p>\n\n\n\n One can register a Will\nwith Dubai International Financial Centre\u2019s Wills and Probate Registry which\nwas launched on May 1, 2015. Wills and Probate Registry allows non-Muslims to\nregister their will, which allows them to transfer their assets as they wish\nupon their death. However, before the new inheritance law enforcement, judges\nat the court of the first instance would apply Sharia to nonMuslims in case of\ndeath, since courts did not recognize wills from outside the country.<\/p>\n\n\n\n The new law has shortened\nthe time frame needed to settle the distribution of assets and wealth of a\ndeceased expatriate to a few months. It also decreased the amount of money paid\nto settle the inheritance. Currently, the cost of the registration of a Will at\nthe Dubai Court is Dh2,110 (not including Arabic translation fees). The Dubai\nInternational Financial Centre (DIFC) shall charge Dh10,000 and Dh15,000 for\ntwo mirror wills for spouses.<\/p>\n\n\n\n A Will specifically for\nguardianship shall cost Dh5,000, and the cost for two mirror wills for two\nparents shall cost Dh7,500.<\/p>\n\n\n\n Registration of Wills\u00a0isn\u2019t the only step which must be considered important.Professional advice is very relevant for the same. The coming of the Wills\u00a0and Probate Registry has served to underline the need for expats to get their Wills sorted out professionally and will help make that process easier. The new registration process makes it critical to have a professional look at which a person\u2019s assets are currently covered in any Will they have, and which are not. This must be kept in mind that Wills registered with the Wills & Probate Registry govern Dubai assets (and other issues such as guardianship) only.<\/p>\n\n\n\n To draft a new Will and\namend\/create another Will to cover assets outside of Dubai, a person definitely\nneeds to get a solicitor involved. But one mustn\u2019t lose sight of why they\u2019re\ngetting a Will in the first place. It\u2019s about the money, right? An expat wants\nhis\/her solicitor to be working with their financial adviser to ensure that the\nWill itself reflects their broader financial strategy. And let\u2019s not forget\nabout sorting out a person\u2019s exposure to Inheritance Tax which, for many\nexpats, is the most important thing about their Will by far. A full-service\nfinancial provider would provide both the legal and financial assistance in one\nintegrated package.<\/p>\n\n\n\n All properties, movable or\nimmovable, of which the testator is an owner and which are transferable can be\ndisposed of by a Will. A property which is not legally transferable cannot be\nbequeathed. It means a person cannot write a Will on the property which is\nlegally not transferable.<\/p>\n\n\n\n As per the Hindu Succession\nAct, 1956, Hindus, Buddhist, Sikh or Jains can execute a will.<\/p>\n\n\n\n The Indian Succession Act,\n1925 consists of part VI The law of Will is contained in part VI of the Indian\nSuccession Act, 1925 and Christians, Parsis, and the Jews are governed by this.<\/p>\n\n\n\n Wills made by the Muslims\nare governed by the Muhammadan Law which is basically governed by their\nreligious texts. The inheritance laws for Sunnis are different from those of\nShias.<\/p>\n\n\n\n For non-Muslim expatriates\nwho don\u2019t have a Will, there is a likelihood that Sharia law or forced rules on\ninheritors will apply. The court may also decide on who takes care of the\nsurviving children upon the untimely death of the parent\/s. If the expatriate\nhas assets outside the UAE, he\/she could lose a huge proportion of their\ninheritance to excessive taxes.<\/p>\n\n\n\n If a non-expatriate Muslim\nin the UAE has assets in the country and abroad, it is advisable to get an\ninternational Will or a similar document from their home country. However, a\nMuslim can write a Will in which they can give out only one-third of their\nproperty to a non-family member, including charity organizations and less\nfortunate.<\/p>\n\n\n\n Q&A<\/strong><\/p>\n\n\n\n 1. The spouse of a Muslim\nwoman died two months ago, and the deceased is survived by his parents, wife\nand two sons in Dubai. The wife questioned as to who should be the rightful\nheir her husband\u2019s legacy and what is the court procedure and duration? Are her\nhusband\u2019s parents entitled to inherit from the deceased\u2019s fortune?<\/p>\n\n\n\n A: The questioner shall ask\nthe Sharia Court to issue a Decree of Distribution, as the questioner shall\nprovide two Muslim witnesses before the court, who are required to be aware of\nthe deceased person and his family members so as to explain to the Sharia Court\nwho the deceased\u2019s relatives are. Therefore, the court will issue a Doctrinal\nCertificate within two days from the date of application in which it will state\nthe rightful heirs of the deceased. As for the question on the deceased\nparents\u2019 right of legacy, in accordance with the Islamic Sharia, the deceased\u2019s\nparents inherit along with the questioner and her two sons.<\/p>\n\n\n\n 2. Can a surviving spouse access the joint bank account?<\/strong><\/p>\n\n\n\n A surviving spouse will not\nhave immediate access to money in bank accounts in the UAE, or even bank\naccounts held jointly in the names of both spouses. In the absence of a\nregistered Will, these accounts will remain frozen until instructions are\nreceived from a UAE Court and all the deceased\u2019s debts in the UAE (even\nincluding parking fines) are paid. The assets will in due course, be\ndistributed by the Courts in accordance with Sharia Law and this could\npotentially take weeks or even months. Under Sharia rules, the bulk of assets\nbelonging to the husband may pass to certain family members, with the wife only\ntaking a portion of the estate.<\/p>\n\n\n\n 3. Who will have interim and eventual guardianship of infant\nchildren?<\/strong><\/p>\n\n\n\n Article 142 of the Personal\nStatus Law, defines custody as the upkeep and taking care of the child, (which\nis usually granted to the mother of the child) without interfering with the\nright of the guardian of the child. Guardianship is predominantly awarded to\nthe father of the child since he is responsible for providing for the child\nfinancially, morally and physically.<\/p>\n\n\n\n Under Article 156 of the\nPersonal Status Law a women\u2019s custody of the children terminates upon a male\nchild reaching the age of eleven and a female child turning thirteen unless the\nCourt decides to extend this period in the best interests of the child.<\/p>\n\n\n\n If a father of an infant\nresident in the UAE dies, under Sharia law the closest male relative on the father\u2019s\nside of the family is usually appointed as guardian of any infant children.<\/p>\n\n\n\n The mother of the\nchildren would retain custody, subject to conditions such as her not\nremarrying. If a wife was to die in the UAE, then the husband would remain the\nguardian and custodian of any minor children. This would be subject to him\nhaving a suitable woman living in his home to care for the child (such as a\nfemale relative).<\/p>\n\n\n\n In the absence of a\nregistered Will or specific instructions appointing interim guardians for minor\nchildren, the UAE local authorities would have to intervene and take care of\nthe minors, until such time as the Court\u2019s approval of a suitable guardian.<\/p>\n\n\n\n 4. Will Sharia inheritance rules apply to all or part of the UAE\nassets?<\/strong><\/p>\n\n\n\n Inheritance issues for\nMuslims are dealt with in accordance with Sharia, whereas for non-Muslims, the\nlaw of the deceased\u2019s nationality can be applied if a Will is made formally.\nThe UAE Civil Code stipulates that the law of the home country of a non-Muslim\ncan be applied to matters of inheritance as defined by Article 17 (1), which\nstates \u201cinheritance shall be governed by the law of the deceased at the time of\nhis death\u201d. However where a Will refers to the disposal of real estate in the\nUAE, then Article 17 (5) states that UAE law \u201cshall apply to wills made by\naliens disposing of their real property located in the state\u201d. This is subject\nto an arguable exception in the case of freehold property; at present, the\nDubai Courts, at least, are treating freehold property as an exception to the\nproperty can be bequeathed by a non-Muslim expatriate, under their Will.<\/p>\n\n\n\n Furthermore, Article 1(2)\nof the Law of Personal Status allows non-Muslim expatriates, with assets in the\nUAE to make a Will under the law of their home country, to govern succession to\nhis or her UAE estate instead of Sharia-based rules. However, the Will must be\nproved in the formal legal fashion before the Inheritance Court, a process\ngreatly expedited if the expatriate has previously had the Will translated into\nArabic and notarised here in the UAE.<\/p>\n\n\n\n Even though the Personal\nStatus Law provides non-Muslim expatriates with the right to request the UAE\nCourt for the application of their home country law, the Personal Status Law\ndoes not however expressly amend the UAE Civil Code. This leads to potential\nuncertainty as to whether or not a non-Muslim\u2019s Will would be subject to Sharia\nlaw and not according to their personal wishes, as per their home country law.<\/p>\n\n\n\n 5. How can assets and family be protected?<\/strong><\/p>\n\n\n\n In May 2015, the DIFC Wills\nand Probate Registry introduced a new set avenue for succession and inheritance\nmatters for non-Muslims holding assets in Dubai, backed by protocols concluded\nwith other public authorities in Dubai.<\/p>\n\n\n\n The new rules shall create\nlegal certainty for the inheritance of an individual\u2019s assets after death\nand the appointment of guardians for their children. This not only allows\nindividuals to have the testamentary freedom to dispose of their assets as they\nwish, it also provides peace of mind that an individual\u2019s estate will be\ndistributed according to their wishes.<\/p>\n\n\n\n The Registry provides a\nsimple and efficient mechanism for non-Muslims to pass on their estates,\nsubject to a formal Will registration process which functions as an opt-in\nmechanism. All probate grants are issued by judges of the DIFC Court.<\/p>\n\n\n\n In order to ensure all of\nan individual\u2019s assets, accounts and information are administered according to\ntheir wishes, considering the following:<\/p>\n\n\n\n \u2022 Doing an inventory of all\ntheir assets, including bank accounts, investments, emergency funds, including\ndigital accounts that they\u2019d like to be sorted out before death.<\/p>\n\n\n\n \u2022 Individuals must consider\nwriting a will to spell out the disbursement of all their valuable possessions.\nIn the absence of a will, the Shariah Law will determine who gets to keep what\nupon death. The UAE is home to a number of will writers and lawyers that can\nassist persons to write a will. One has to ensure that the company offering will-related\nservices has the necessary credentials, including a lawyer qualified in family\nlaw. It is also advised that one should not write a Will only to save money.<\/p>\n\n\n\n \u2022 An Executor must be\nchosen carefully. A person may appoint a corporate body (bank\/solicitor) or\nnominate younger people and more than one or two as executors, to ensure they\nare likely to outlive such individual and execute their wishes. \u201cWhere the\nexecutors are corporate bodies, they are likely to outlive us. Where executors\nare family members or friends, it is conceivable that they might die before an\nindividual do, so it is advisable to nominate younger people and more than one\nor two as executors.<\/p>\n\n\n\n \u2022 Have the Will translated\ninto Arabic, attested in the expat\u2019s home country and ratified by the UAE\nembassy in their home country before submission to the UAE court.<\/p>\n\n\n\n \u201cUsually, people will not bother to take these actions because\nthey may find different rules apply and translation to other languages if they\nmove country. Often, wills are written but the spouse will obtain translations,\namong others, following the death\u201d \u2013 Steve Gregory (Managing partner at Holborn\nAssets)<\/strong><\/p>\n\n\n\n \u2022 If a person has an active\nlife online and such person maintains important digital accounts such as ebay\nor PayPal, which they think their family should have access to when they\ndie, they must make a list of all the passwords and pass the information to a\ntrusted executor. Regular back-ups must be created of all data, both those\nstored local and those online. Detailed document with instructions should be\ncreated on how to access all of the digital data and backups. Appointing a\ndesignated digital executor to provide any necessary technical support is\nadvised.<\/p>\n\n\n\n \u2022 It doesn\u2019t necessarily\nmean that an individual has to leave the passwords of all their social\nnetworking and email accounts to an outsider or executor. One might want to\nkeep some of their digital accounts hidden for eternity. More and more people\nhave a digital cyber world to take care of and they may wish to have such\nthings deleted immediately after their death. Web-based photo libraries,\nFacebook profiles, Twitter accounts and personal documents may be things that\nthe deceased does not want to be found at all. Social networking websites such\nas Facebook allows accounts to be memorialized or deleted by an immediate\nfamily member, while Twitter will remove an account if they receive a death\ncertificate and provide all archived tweets from the user to the executor of\nthe estate.<\/p>\n\n\n\n In a particular incident, a\nwidow of recently deceased Indian national filed a case in her personal\ncapacity as the guardian of their only son. Upon the death of her husband, the\ndeceased\u2019s mother obtained a division of the husband\u2019s assets pursuant to\nIslamic Law which gave the mother one-sixth, the wife one-eighth and the son\nthe remainder of the assets. The wife filed the case to dismiss this division\nof the assets and to give the entire estate to the son. In her claim, the wife\nrelied on a will properly be executed by her husband who gave all of his assets\nto his son upon his death and requested the court to enforce the will in\naccordance with the laws of India as her husband was a Hindu and not a Muslim.<\/p>\n\n\n\n The Court of Cassation\nruled that it was erroneous for the Court of First Instance and the Court of\nAppeal to characterize the claim as a claim to amend the previously issued\ndivision of the estate\u2019s assets. The Court pointed out that claim was for the\nenforcement of a will not amend the division of assets as the lower courts\ncharacterized it. Since the lower courts\u2019 decisions did not evaluate the claim\ncorrectly, they should be overruled.<\/p>\n\n\n\n The Court further clarified\nthat in the application of the husband\u2019s will, the will should not be affected\nby the rules of the Law of Personal Status which state that a testator may not\nbequeath property to an heir. Under this rule, which is applicable to UAE\nNationals and Muslim expats, a testator may not bequeath property to any of his\nheirs such as a son or a daughter except with the consent of the other heirs.\nThe Court reasoned that a will\u2019s purpose is to pass property from one person to\nanother and if these persons are not UAE nationals and they are not Muslims\nthen the law they have chosen for themselves to govern their relationship\nshall apply to them.<\/p>\n\n\n\n CONCLUSION<\/strong><\/p>\n\n\n\n Non-Muslim expatriates in\nthe UAE may choose to have the law of their country of origin as the chosen\napplicable law in their will as long as their heirs are also not UAE nations\nand not Muslim. If the will has a chosen applicable law and it is the law of\nthe country of the origin of the testator, the court will respect that law and\napply it except in cases where it is contrary to public policy to do so. As the\ncourt clarified, a different division of assets, such as equal inheritance for\nall children, would not be invalidated for violating public policy.<\/p>\n\n\n\n It is critical to note that\nthe court\u2019s enforcement of a will in accordance with foreign law is an\nexception and it is subject to strict procedural steps which must be followed\notherwise the court will return to the default position of applying UAE law.<\/p>\n\n\n\n As per the guidelines are\ngiven by the DIFC, one must definitely seek legal assistance for the making of\na will. A will represent the property value and every other personal interest\nof the person who is willing to create such will. A strong legal advice can\nalso save a person from making mistakes which might create trouble at the later\nstage after the death of the testator.<\/p>\n","protected":false},"excerpt":{"rendered":" Since the discovery of oil back in 1950\u2019s, many people have arrived, settled and living in UAE. And likewise, they have amassed wealth and assets within UAE too. But many expatriates living in the UAE are also still unaware that in the absence of a Will, recognized by the UAE legal system, the process of transferring their assets after death can be time-consuming, costly and fraught with legal complexity. Wills and other matters relating to personal affairs are generally governed in the UAE by Federal Law 28 of 2005, known as the Law of Personal Status, which is based on […]<\/p>\nBACKGROUND\nOF LEGAL WILL<\/strong><\/h4>\n\n\n\n
Essential\nrequirements of writing a will:<\/strong><\/h4>\n\n\n\n
Fundamentals\nfor Writing a valid will:<\/strong><\/h4>\n\n\n\n
LEGATEE<\/strong><\/h4>\n\n\n\n
REGISTRATION\nOF WILL<\/strong><\/h4>\n\n\n\n
LEGAL\nADVICE<\/strong><\/h4>\n\n\n\n
PROPERTY\nTYPE<\/strong><\/h4>\n\n\n\n
Indian\nLaws of Wills and Inheritance<\/strong><\/h4>\n\n\n\n
INHERITANCE\nCOURT PROCEDURE IN DUBAI, UAE<\/strong><\/h4>\n\n\n\n
ADMINISTERING\nASSETS \u2013 ONLINE & PHYSICAL<\/strong><\/h4>\n\n\n\n
COURT OF\nCASSATION<\/strong><\/h4>\n\n\n\n
Role of\nLegal Maxims in creation and registering a Will<\/strong><\/h4>\n\n\n\n