Why inheritance of non-Muslims or their Wills drafting is so crucial?
The principal source of inheritance legislation in the UAE is Sharia Law and it has been incorporated and codified into various legislative UAE Codes such as the UAE Personal Status Law 2005 and the UAE Civil Code 1985. In this context, Law No. 15 of 2017 is also important as it applies to all Wills and probate matters concerning non-Muslims in the emirate. Inheritance matters in the UAE are mainly governed by two federal laws: The Personal Affairs Law of No.28 of 2005 which allows non-Muslim expats living in the UAE to opt to use the law of their own countries to distribute their assets in the UAE. The other is the UAE Civil Code. The UAE Civil Code provides that the law of the home country of an expatriate will apply to determine how movable assets (cash, investments, cars, personal items, etc) will be distributed (this will mean application for probate). However, in regard to immovable property, the provisions of Article 17 which have been replaced by virtue of Article 1 of Federal Decree-Law No. 30 dated 2020/09/27, state as follows:
- Subject to the provisions of Paragraphs (3) and (4) of this Article, heritage shall be governed by the law applicable in the state of the testator at the time of his death.
- The financial rights present on the State’s territory and which belong to a foreigner having no heirs shall be transferred to the State.
- The substantive provisions of the will and all actions related to the after-death stage shall be governed by the law of the State as specified by the will or the alienation act, or the law of the state to which the person carrying out such action belonged upon his death if no law is specified by the will or the alienation act.
- The form of the will and all alienations related to the after-death stage shall be governed by the law of the State of the person carrying out such alienations upon the issuance thereof, or the law of the State in which such action took place.
- Provided that the law of the United Arab Emirates prevails regarding the will issued by a foreigner for the real estates thereof in the State.
The interpretation of Article 17 (5) could refer either to Shari’a law or Personal Affairs Law. Since the local laws may be open to interpretation in certain cases, it is, therefore, advisable to make a Will to help reduce the time and costs associated with the process of carrying out a testator’s wishes.
The aforementioned makes it clear that it is high time the expatriate communities in the UAE understand the significance of the Inheritance process and how beneficial it is to have an executed Will in place for safeguarding their asset distribution for the benefit of their family in line with their wish.
We are witnessing unprecedented growth in real estate investments in UAE not only by businessmen but also by the working segment who are expatriates. As noted above UAE Law applies to real estate owned by expatriates in the UAE. And distribution of assets is fixed thereunder. This means that the distribution of your assets is fixed by law and not according to your desire. To prevent this, it is crucial that you take control of your assets and get a Will drafted to drive your inheritance scheme as to whom and to what proportion your assets should be distributed as per your wish.
Needless to emphasize, ideally all business owners must consider business succession planning and design an appropriate Will to ensure that their assets succession plan stays assured for the benefit of their successors and family members. The best advantages of having a Will include designating who is to benefit from your estate and assets, and also that you can nominate and appoint guardians for your children, or create trusts to avoid estate depletion and also choose executors who are responsible for the administration of your estate in your absence.
A valid Will is beneficial to avoid family or partner disputes and it enables the courts in the UAE to deal with the distribution of your assets, estates, bank accounts, etc. with clarity post-death as Will establishes your intentions. Thus, a valid Will provides you the ultimate peace of mind that your assets are protected and shall be distributed according to your wishes in the event you are incapacitated by death.
It is in this context that Dubai Courts have announced the establishment of the first division for the inheritance of non-Muslims and the execution of their wills.
Judge Al Shamsi, noted that Dubai courts attach great importance to the probate matters of non-Muslims in the Emirate, ensuring the application of their personal laws and developing litigation procedures to make them enforceable.
The non-Muslim Inheritance Department specializes in regulating non-Muslim inheritance cases based on specific terms and conditions as detailed below:
- To open an inheritance file, applicants must provide a set of documents, depending on their specific request and the available documentation.
- In the first case, the documents must include a legal notice, an inventory of inheritance, a legal document, or an official document specifying the heirs and their shares.
- In the second case, applicants should submit an official document proving the existence of a will issued by Dubai Courts or any other courts within the UAE, excluding the Dubai International Financial Centre courts.
- In the third case, if none of the above documents are available, a judicial ruling proving the death of the deceased and identifying the heirs must be provided. Judge Al Shamsi also mentioned that if the ruling is issued outside the UAE, the file can only be opened after ensuring that the ruling is attested by the Embassy of the UAE – Ministry of Foreign Affairs.
- Judge Al Shamsi added that if a request to open an inheritance file is based on a will not issued by the courts within the UAE, which is the fourth case, the provisions of Article 18 of Law No. 15 of 2017 concerning the management of non-Muslim inheritance matters and the execution of their wills, as applied in Dubai, are implemented.
A lawsuit for the execution of the will is registered, along with a certified copy of the applicable law for the will, whether it is the law of the testator’s nationality or the law specified in the will. The director of the lawsuit ensures the completion of the documents, and payment of judicial fees, schedules the nearest session, and notifies all parties mentioned in the will.
This non-Muslim inheritance Department applies a single-session system, aiming to reach a decision on the request within one session. After the decision accepting the execution of the will is issued, along with the file opening application, it is presented.
For further clarification and inquiries, a request can be submitted to the court president for approval to open the file through the “Wayak” system.
The court shall refrain from opening probate files where a will is issued or authenticated by the Dubai International Financial Centre courts, as these courts have jurisdiction over such matters. Additionally, an accompanying affidavit specifying the heirs, whether they are outside the country or subject to consular jurisdiction, may be considered insufficient in determining all the heirs. In other cases, applicants are permitted to submit a request to the court president through the “Wayak” system for the review and issuance of an approval decision.
This endorses Law No. 15 of 2017, which applies to all wills and probate matters concerning non-Muslims in the emirate, including the Dubai International Financial Centre.
References:
https://elaws.moj.gov.ae/UAE-MOJ_LC-En/00_CIVIL
Disclaimer
This publication does not provide any legal advice and it is for information purposes only. You should not rely upon the material or information in this publication as a basis for making any business, legal or other decisions. Any reliance you place on such material is therefore strictly at your own risk.
Author: Thara Kumar – Paralegal
