by Cecilia Bicca
In the UAE, principles of inheritance and succession are found in Islamic law (also known as Sharia), which is a religious form of law mainly based on the Quran and the Sunna (sayings of the Prophet Mohammed PBUH). Sharia regulates most aspects of the lives of Muslims, such as moral, family, personal status, charity, politics, community life and inheritance, among others.
Though Sharia is in essence not totally codified, in the UAE provisions regarding inheritance – as well as personal status’ matters like marriage, divorce, capacity and tutorship – are compiled in UAE Federal Law No. 28 of 2005 (also known as the Personal Affairs Law). Supplementary provisions may also be found in UAE Federal Law No. 5 of 1985 (also known as the Civil Transactions Law or Civil Code).
The Personal Affairs Law applies to all Muslims, irrespective of being UAE citizens or not. It also applies to all expatriate residents, regardless of their faith, unless they ask for the application of their national law . In line with the Personal Affairs Law, the Civil Code also provides that inheritance shall be governed by the law of the deceased , understood as the law of the deceased’s own country or community at the time of death.
Hence, when the deceased is Muslim, Sharia will mandatorily govern his or her inheritance issues. On the other hand, the law of the deceased – provided it does not contradict with the UAE public order – may apply if he or she is not Muslim.
Importance of Wills for Non-Muslims
The application of a foreign law by the UAE Courts is not automatic: evidence of the election of such foreign law will be obvioulsy required. A will previously signed in front of a Dubai Notary Public, for instance, serves that purpose. It may include assets located in the UAE and abroad, such as bank accounts, companies` shares and vehicles.
Nevertheless, the Civil Code provides that the UAE law is applicable to real estate properties located in the country . Consequently, wills done by non-Muslims at the Notary Public are possibly devoid of proper legal security for real estate owners, who will have to deal with the uncertainty of a local Court’s decision on a probate case.
In any event the existance of a duly notarized will, in addition to the presentation of the relevant legislation (legalized and translated to Arabic) in due course, will facilitate the decision of the UAE Courts with regard to the application of a foreign law. Otherwise, UAE Courts shall generaly apply Sharia law by default.
The DIFC Wills and Probate Registry
In addition to the Notary Public will option, a potentially safer alternative has become more popular in the UAE among non-Muslims expatriates since May 2015: the DIFC Wills and Probate Registry (DIFC WPR).
The DIFC WPR is a wills’ registry for non-Muslims based inside the Dubai International Financial Centre (DIFC), a financial free zone with its own regulations and its own Courts and Dispute Resolution Authority, which are governed by common law as opposed to Sharia or civil law. The DIFC WPR’s wills are valid and enforceable in the UAE, due to the agreements secured by the DIFC with the relevant authorities in the Emirate of Dubai, and more recently, the Emirate of Ras Al Khaimah.
The validity of the DIFC WPR will is regulated by DIFC law thus ensuring testamentary freedom. It covers both movable and immovable assets (real estate, bank accounts, companies’ shares, etc.) and it is applicable to individuals owning assets in Dubai and Ras Al Khaimah. A property will type and a free zone company will type are also available to testators subject to certain conditions.
From a practical standpoint, it is worth noting that the DIFC WPR will is executed only in English and, in case of death of testator, it is enforced by DIFC Courts through a well defined effective probate procedure. In other words, it simply eliminates the possibility of application of Sharia law in non-Muslims probates.
Children guardianship of Non-Muslims
Wills (both Notary and DIFC WPR) can further cover guardianship of minor children habitually living in Dubai in case one or both parents pass away. A temporary guardian can be appointed to immediately take care of the children while the permanent guardian, if abroad, makes the arrangements for the trip. The permanent guardian will be the person responsible for future care of the children until they reach adulthood.
A non-Muslim expatriate would generally appoint his or her spouse as permanent guardian of their children in case of demise. Would one spouse pass away, the other would have full parental authority to make all decisions concerning the minor children while they reside in the UAE.
In the absence of a guardianship clause or a guardianship will in the UAE, a non-Muslim expatriate wife who lost her husband may be faced with challenges to retain guardianship of her minor children, as per Sharia law a male relative of the husband is normally appointed with the task.
The following fictional case is intended to illustrate possible scenarios in case of death of a non-Muslim in the UAE.
Piero is an Italian national married with an Indian national. They are both Christians. They reside in Dubai with their two minor children: a ten year old girl and an eight year old boy. They have bank accounts and an apartment in Dubai. Piero’s parents are alive. He has one brother.
A. Distribution of Piero’s UAE assets if he passes away and leaves a DIFC WPR will
In such case, his inheritance would be governed by the DIFC law which secure testamentary freedom, and all his Dubai assets – including his share in the real estate property – would be distributed as stated in his will,. His minor children’s guardianship would be vested in his wife, as also stated in his will. The respective probate procedure would be conducted in the DIFC Courts.
B. Distribution of Piero’s UAE assets if he passes away and leaves a Notary Public will
In such case, his inheritance would be governed by the law which he elected in his will – i.e. Italian law – and his Dubai movable assets would be distributed as stated in his will. With regard to his real estate property, there is a potential risk that his share would be distributed to his heirs in accordance with the rules of Sharia. His minor children’s guardianship would be vested in his wife, as stated in his will. The respective probate procedure would be conducted in the Dubai Courts.
C. Distribution of Piero’s UAE assets if he passes away without leaving any will
In the event that Piero passes away without leaving a valid will, his inheritance would be governed in accordance with Sharia law, subject to the Sharia scholar’s opinion and final decision of a Dubai Court’s judge. The heirs’ participation in the succession of Piero would likely be the following:
– Wife: 12.5%
– Son: 36.11%
– Daughter: 18.06%
– Father: 16.67%
– Mother: 16.67%
His minor children’s guardianship would be decided at the discretion of the local Court, which will probably favor his brother as guardian of the children.
Undoubtedly a will is an important asset protection and succession planning tool for non-Muslims in the UAE, despite the costs involved. The DIFC WPR will, in particular, has had positive impact both on foreign investors and local authorites seeking foreign direct investment, because a clear and transparent legal environment is now avaiable to investors of all faiths. Non-Muslims investors’s behavior with regard to corporate and real estate structures has changed, since more complex squemes intended to keep direct ownership outside of the country are no longer required. Instead, one can simply head to the DIFC WPR and have piece of mind.
The contents of this article do not substitute a specific legal advice on this particular matter. Please contact a reputed law firm for legal advice. Note that Abdulla Al Suwaidi’s team is regularly providing advice on this field. For further information kindly contact firstname.lastname@example.org.
by Cecilia Bicca – email@example.com