Wills for Non-Muslim Foreigners in the UAE
The United Arab Emirates follows the Sharia Law regarding personal status and inheritance. In accordance with the legislation, UAE Courts abide by Sharia provisions when there is no will. This means that if a person dies and does not leave a will, the UAE Courts shall distribute his/her property and appoint guardians in accordance with the principles of Sharia. Sometimes, the distribution in accordance with the principles of Sharia has some unexpected effects on non-Muslim foreigners.
Section (4) of the UAE Civil Transactions Law nº 5/1985 regulations, Articles (1257) to (1261), and Articles (17/3, 4 & 5) of the same law stipulate that:
The substantive provisions of the will and all actions in relation to the after-death stage shall be governed by the law of the country of the person carrying out such action upon the death thereof. The form of the will and all actions in relation to the after-death stage shall be governed by the law of the country of the person carrying out such action upon the issuance thereof, or the law of the state in which such action took place, provided that the law of the UAE prevails with regard to the will issued by a foreigner about the real estate thereof in the UAE.
Section (4) of the UAE Personal Status Law regulations, Articles (240) to (272), and the most significant provisions thereof stipulate that the will shall be enforceable within the limit of one-third of the testator’s estate, after the performance of the rights thereon, and shall be valid beyond the one-third within the limits of the share of the heirs who accepted it.
The legislator also stipulated in Article (1/2) of the UAE Personal Status Law nº 28/2005 that:
The provisions of this Law shall be applicable to UAE Nationals, unless non-Muslims among them have special provisions applicable to their religion and sect. Moreover, such provisions shall be applicable to non-nationals, unless they insist to adhere to the application of their laws.
The will has aspects that must be available, otherwise it shall be deemed void; namely (the wording, the testator, the legatee and the bequeathed property), and that it is permissible for those who have the right to possess the bequeathed property, despite the difference in religion; it is permissible to legate non-Muslims, the poor, the needy, schools, orphanages, etc., but it is not permissible to legate the taboos such as liquors, etc.
It is legally agreed that there shall not be a will for an heir, unless it is approved by adult heirs, and the bequeathed funds are transferred to the legatee after the death of the testator, unless the testator specifies other conditions, for example (to be transferred to the legatee on another date after the death of the testator).
In addition, as per the provisions of Article (272) regarding the mandatory will of whoever dies, or is considered dead by decision of the court, and has a son or a daughter who died before or with the testator; the grandsons shall be entitled to a will for one-third of the estate within the limits and conditions thereof.
The need of Non-Muslim foreigners to write their Wills:
In accordance with the above-mentioned, the basis is to apply the provisions of the UAE Personal Status Law to all UAE Nationals and foreign residents. However, if foreigners adhere to the application of their law, in this case, this law should be applicable, provided that a duly authenticated copy thereof is submitted, even if its provisions are not in accordance with Islamic Sharia, provided that the parties to the dispute shall be non-nationals and non-Muslims.
With regard to the applicability of foreign law in the UAE in relation to the will, if it included or contained property owned by a testator within the UAE, the UAE legislator in this regard made an absolute prohibition and decided that the applicable law in such case shall be the UAE Law only.
Based on the foregoing, sometimes the distribution in accordance with the principles of Sharia has some surprising and unexpected effects on non-Muslim foreigners.
Recently, and based on real examples, there has been some ambiguities and problems facing the non-Muslim foreigners in the execution and application of the will in the UAE. Thus, for the purposes of achieving justice and equality and to bring them peace of mind, especially when they conduct an act concerning their own funds, the UAE has made laws and resolutions that apply to all the wills and estates of non-Muslims to enable them to prepare their wills within an explicit legislation that ensures the application of their own laws and the development of litigation procedures for their wills and estates, to simplify and make them enforceable. Moreover, this helps foreigners register their wills and manage their estates in the country by stating the legal matters related to issues of inheritance and estates and finding appropriate solutions thereon and encourages their investment in the UAE with confidence and transparency.
These resolutions are part of the efforts of the United Arab Emirates towards the establishment of an institutional infrastructure dedicated to the values of tolerance and acceptance of others, in line with the legislative structure of UAE law and the community culture that characterizes the UAE nation.
In addition, the commitment of the UAE to the continuation of success and progress, and the achievement of justice system in a manner that best satisfies the aspirations of those residing in the country, His Highness Sheikh/ Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the UAE has issued Law nº (15) of 2017 regarding the administration of non-Muslim estates and the execution of their wills. Furthermore, His Highness Sheikh/ Mansour bin Zayed Al Nahyan, Deputy Prime Minister, Minister of Presidential Affairs and Head of Abu Dhabi Judicial Department, has issued a resolution to establish the non- Muslim Wills and Probates Office.
Non-Muslims in Dubai did not have the right to write their wills. However, as of October 1st, 2010, the Notary Public of the Dubai Courts became the governmental authority that provides ratification service for the signature of the writer of non-Muslims’ will, having been ratified by consulates and embassies of concerned persons and some private offices licensed in some free zones only.
His Highness Sheikh/ Mohammed bin Rashid Al Maktoum, Ruler of Dubai, has issued Law nº (15) of 2017, which clarifies and amends legislation on the administration of non-Muslim estates and the executions of their wills.
Thanks to the new law recently issued, non-Muslim expatriates, residing in the city, can write long-term wills in English recognized by the Emirate.
Whereas, “the law, which applies to all non-Muslims’ wills and estates in the Emirate of Dubai, including the Dubai International Financial Center, aims to enable non-Muslims to prepare their wills within explicit legislation that ensures the application of their own laws”, in accordance with the official statement.
The decree clarified the legal procedures for their wills and estates, simplifying and making them enforceable; moreover, to encourage them to register their wills and manage their estates in the Emirate of Dubai by stating the legal matters related to issues of inheritance and estates, and finding appropriate solutions thereon. In accordance with the law, the “Register of Non-Muslims’ Wills” shall be established in both Dubai Courts and DIFC Courts, specifying the form of the register, its statements, and the registration procedures and regulations shall be determined by a resolution of the President of both Dubai Courts and DIFC Courts.
The law includes the conditions of registering the will at the Register of Non-Muslims’ Wills, the validity conditions of the will and cases, conditions, duties and obligations of the will executor, the conditions of transfer of ownership of the bequeath fund (disposition of the estate), the administration of the estate, the distribution of the estate funds and the jurisdiction to consider the related disputes.
The non- Muslim wills and probates office
It is intended to give freedom to non-Muslims to choose the appropriate way to write their will and how to dispose their property after their death. A special register has been established to register these wills and estates and to consider all the issues related to the execution of the registered wills, regarding the estates and properties located within the Emirate of Abu Dhabi, of residents and non- residents, with the possibility of registering the wills in English. The office also offers flexible legal options to assist non-Muslim families, in the event of the death of their father or mother, to protect assets and properties, in the Emirate of Abu Dhabi.
The regulations include procedures for registering the wills in English and making them available to the public in accordance with the principle of transparency, therefore, the data shall include conditions in relation to the owner of the will and other conditions in relation to the will, as well as rules in relation to witnesses, territorial jurisdiction, registration, keeping and archiving of the wills.
In conclusion, due to the diversity in the nationalities and religions of the residents in the UAE, at Hussain Lootah & Associates we recommend non-Muslim foreigners to seek a professional legal consultancy with experience in the UAE law, prior to the preparation of the will.