by Cecilia Bicca
In the United Arab Emirates (UAE), Islamic Sharia law (also known as Sharia) establishes the fundamentals of inheritance and succession. Sharia is a religious form of law mainly ;sourced from the Quran and the Sunnah (sayings of Prophet Muhammad PBUH) and regulates most aspects of the lives of Muslims, such as moral, family, personal status, charity, community life and inheritance, among others.
Though Sharia in essence is 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 be found in UAE Federal Law No. 5 of 1985 (also known as the Civil Transactions Law or the Civil Code).
The Personal Affairs Law applies to all UAE citizens except non-Muslims. 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.
In any case, while dealing with inheritance cases of non-Muslims, the Court of First Instance of the Family Division of the Dubai Courts would always consider UAE law principles, such as the mandatory compliance of the relevant foreign law with the country’s public order and morals.
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 executed and attested at the “Wills and Estates Registry for non-Muslims” at the Dubai Courts (Dubai Courts Registry), for instance, serves that purpose. This type of will may be governed by the law of the testator and may include any type of assets in spite of a provision of the Civil Code stating that the UAE law is applicable to real estate properties located in the country and disposed by foreigners in their wills. Eventually the Dubai Courts treated freehold property as an exception to the rule therefore allowing the distribution of such properties pursuant to the deceased’s will. However, this scenario may change with the recent issuance of Dubai Law No. (15) of 2017 Concerning Administration of Non-Muslim Estates in Dubai and Execution of their Wills (Dubai Law), which was published in the Official Gazette in early November 2017. The Dubai Law apparently brought clarity to this issue stating that the law of the Emirate of Dubai applies to inheritance or wills that include a real property.
In the absence of a will, the local Courts will likely apply the rules of Sharia. If the deceased left a will registered at the Dubai Courts Registry, at the probate stage the heirs will need to bring forward, in addition to the registered will, a copy of the relevant foreign legislation (legalized and translated to Arabic). If these or other requirements are not met, Sharia law shall probably be applied by default. In such case the interested parties may appeal to the Court of Appeal, and if the decision is still not favorable, the last resort is the Court of Cassation.
The DIFC Wills and Probate Registry
In addition to the Dubai Courts Registry option, a significant alternative is very popular in the UAE among non-Muslims expatriates: the DIFC Wills and Probate Registry (DIFC Registry).
The DIFC Registry 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 Registry is a public entity of the Government of Dubai and was established under the jurisdiction of the DIFC Courts.
The validity of a DIFC Registry’s will is regulated by DIFC law thus ensuring testamentary freedom. It covers both movable and immovable assets (real estate, bank accounts, companies’ shares, etc.) owned by the testator at the time of his death and located in the Emirate of Dubai, and more recently, in the Emirate of Ras Al Khaimah. A property will, a free zone company will and a financial assets will are also types of wills available to testators at the DIFC Registry subject to certain special conditions.
From a practical standpoint, it is worth noting that the DIFC Registry’s will is executed only in English and, in case of death of testator, it is enforced by DIFC Courts, hence eliminating the possibility of application of Sharia law in non-Muslim individual’s probates.
Children guardianship of Non-Muslims
Either Dubai Courts Registry or DIFC Registry’s wills may further cover guardianship of minor children in case one or both parents pass away. 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.
Testators also appoint a temporary and a permanent guardian for their minor children in the event that 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.
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 custody 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 individual in the UAE.
“Piero is an Italian national married to 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.”
The distribution of Piero’s UAE assets if he passes away may have different scenarios, as follows:
- He left a DIFC Registry will
His inheritance would be governed by the DIFC law which secures 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.
- He left a Dubai Courts Registry will
His inheritance would be governed by the law which he elected in his will – i.e. Italian law – and his movable Dubai assets could be distributed as stated in his will, subject to the acceptance of the Dubai Courts of First Instance to apply the foreign law to his succession. Distribution of real estate should still be subject to the judge’s decision. In case the heirs are not satisfied with the decision of the Courts of First Instance, they could appeal to the Court of Appeal and finally to the Court of Cassation.
- He did not leave a valid will
His inheritance would likely be governed in accordance with Sharia law. The heirs’ participation in the succession of Piero could 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 the Government of Dubai is committed to providing all residents with the necessary security in terms of inheritance matters and freedom to decide how they would like their local assets to be distributed after their death. This is confirmed by the issuance of the Dubai Law, which aims at adopting the same execution and probate procedures for both Dubai Courts Registry and DIFC Registry. The concerned authorities are still in the process of reviewing procedures in order to fully adopt the new Dubai Law. This is a very positive step and will solve many doubts from non-Muslim individuals who wish to register a will, and wills and probate professionals alike.
A will is an important tool for asset protection and succession planning of non-Muslims in the UAE, despite the costs involved. The creation of specialized wills’ registries for non-Muslims in Dubai has had positive impact both on foreign investors and local authorities seeking foreign direct investment, because a clear and transparent legal environment is now avaiable to investors of all faiths. Expatriates’ behavior towards investment in corporate and real estate has changed, since more complex structures intended to avoid direct ownership inside the country are no longer required, particularly for inheritance purposes. Instead, one can simply head to one of the non-Muslim wills’ registries and have peace of mind.
The contents of this article do not substitute a specific legal advice on any particular matter. Whilst we strive to provide accurate information, we do not accept responsibility for error or omission. Please contact a reputed law firm for a proper legal advice. Please also 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