January 28, 2020
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.
In order to accommodate the residents of the UAE who ascribe to different religions, the Law of Personal Status permits a non-Muslim expatriate living in the UAE to select the law of his or her country to matters of personal affairs.
“Inheritance shall be governed by the law of the testator at the time of his death”– Article 17 of the UAE Civil Code”
If an expatriate dies without Writing a Will, Federal Law No. 5 of 1985, concerning the issuance of Civil Transactions Law of the UAE (the “Civil Code”), and Federal Law No. 28 of 2005 regarding the UAE Personal Status Law (the “Personal Status Law”) 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’s family will apply.
As a practical matter, access to the assets of the deceased individual is restricted. Assets cannot be transferred or be dealt with in any manner without direction from the local Court. In some circumstances, this can give rise to delays and financial complications at a critical time.
Many expatriates fail to put measures in place to protect their families and their assets. Even where investments are offshore in foreign jurisdictions, individuals fail to consider what would happen to infant children, UAE bank accounts, their freehold properties or shares in the UAE?
Serious complications may occur when infant children are left behind and no guardianship arrangement recognized in this country has been put in place. In default, Sharia Inheritance rules would apply to property and it would be at the discretion of a local judge to choose the child’s guardian.
Background of Legal Will
A ‘will’ is a legal document which permits a person (testator), to make decisions on how his/her property will be managed and distributed after death. A will can be created by a person at any stage of life. And a will shall be enforceable only after the death of the testator. Through “will” a testator can transfer his/her property to any person he/she likes, such as Faithful servant, handicapped children, widowed daughter and they are termed as ‘legatee’ and such person(s) shall be the beneficiary to the legacy as per law.
If a person does not leave a will, or the will is declared invalid, the person will have died intestate (not having made a will before one dies. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, mistake etc.
It is crucial to write a will because it safeguards a person’s right to select an individual to serve as guardian to raise his/her young children in the event of his/her death.
Essential ingredients of a will
A will must be created by a person, being major, and of sound mind. A will must be in writing and signed by the testator (except privileged will by soldier/airman engaged in warfare or a mariner being at sea). The signature must be placed in such a way that it shall appear that it was intended to give effect to the instrument as a Will.
The Will should be attested by two or more witness in the presence of the testator. The attesting witnesses need not know the contents of the Will. They are only witnesses to the signature or mark of the testator.
The attesting witness and his/her spouse must not be beneficiary under the Will otherwise the bequest (the act of gifting money or property in a will) in their favor would be invalid.
However, the validity of other bequests under the will not be affected.
A Will takes effect after the death of the testator.
A Will is revocable during the lifetime of the testator.
There is no particular form for will by law. The language should be as simple as possible and understandable even by a layman.
A Will can be made on plain paper (need not to be on a stamp paper)
Registration of Will is not compulsory, though it is desirable.
Fundamentals for writing a valid will:
Who is a LEGATEE?
Any person can be a legatee (beneficiary by the Will) including a minor or a lunatic. However, a bequest to a person not in existence at the time of testator’s death is void (This happens when the legatee dies before the testator). A minor can bequeath property through executor/trustees until the time of attaining majority.
Registration of a Will
Registering a will shall avoid the pre-set inheritance formulae – i.e. what is known as “forced heirship” – of Sharia Law potentially being applied during “Probate”. “Forced heirship” represents when a deceased is separated into an indefeasible portion, the forced estate, passing to the deceased’s next-of-kin, and a discretionary portion, or free estate, to be freely disposed of by will.
“Probate” generally describes the legal shenanigans that ensue after somebody has died. As a process, Probate aims to sort out all the legalities in one go, and usually won’t let any assets at all be accessed until every last detail of all asset is sorted out: who gets what in what country according to which law. Probate in the UAE has been dramatically streamlined with the launch of the Wills & Probate Registry last year and now, with the launch of the Property Will Portal, made even easier for expats to put their minds at rest over their legal situation if they die in the UAE.
One can register a Will with the Dubai Court, Abu-dhabi Court or the Dubai International Financial Centre’s Wills and Probate Registry which was launched on May 1, 2015. Wills and Probate Registry allow non-Muslims to register their will and also allow them to transfer their assets as they wish upon their death. However, before the new inheritance law enforcement, judges at the court of the first instance would apply Sharia to non Muslims in case of death, since courts did not recognize wills from outside the country.
The new law has shortened the time frame needed to settle the distribution of assets and wealth of a deceased expatriate to a few months. It also decreased the amount of money paid to settle the inheritance.