The law of Inheritance in the UAE
Although Article 17/1 of the Civil Code of the UAE provides that it is the law of the deceased that shall govern the inheritance at the time of his death, Article 17(5) of the same law provided that UAE law shall apply to wills made by aliens disposing of their real property located in the State. Moreover, Article 1/2 of the UAE Personal Status Law states that “the provisions of the law shall apply to non-UAE nationals unless the foreigner elects to apply his or her personal status law”.
It could be understood then that when a foreigner dies in the UAE leaving assets in the country, his or her home country law could be applied based on Article 17/1 and that his or her heirs can request the court for the application of their own country law as well. However, Article 17/5 puts a limitation to the freedom of disposition of assets by a foreigner with regard to his or her real properties located in the country.
Case examples of inheritance law in UAE
Inheritance rules in the UAE always has an element of judicial discretion. Judges are not bound by precedents or decisions made by other courts and higher courts in a similar case. Judges make their decisions in accordance with the dictates of their conscience and the principles of Shariah. There are a number of cases decided by the courts applying Shariah and UAE law to wills made by foreigners disposing of their assets here. But there are also cases decided by the courts granting the application of the foreigner’s home country law.
Cessation Case No. 3/1998
This is a case of a Hindu man who died leaving a will naming his son as the only heir. Upon his death, the deceased’s mother obtained an order from the Court of First Instance and later the Court of Appeals for the division of the deceased assets. The court ordered that one-sixth of the asset will go to the mother, one-eighth to the wife and the remainder of the asset to the son. The wife of the deceased filed an application to the High Court to nullify the order of division of the asset and to give the entire estate to the son who was named as the sole heir in the will in accordance with the law of India.
The court of cessation overruled the orders of the lower courts. It pointed out that the case was for the enforcement of the will and not for the amendment of division of assets as what the lower courts propounded. The court clarified that the will should not be affected by the Personal Status rule that the testator may not pass on property to any of his or her heirs without the consent of the other heirs. Since the deceased and his family are not UAE nationals and they are not Muslims, then the law that they have chosen to apply should be applied. While this decision allowed non-Muslim residents to apply their home country law with regard to their wills, such laws will not be applied if they offend public policy. In this case, it does not offend public policy.
Cessation Case No. 90/2006
In a judgment rendered by the Court of Cassation in case No. 90/2006, if the heirs was between non-Muslims regardless of their religion (Christian, Jew or Hindu), deceased law can be applied in case of death even if the distribution of the deceased law differ from Sharia law. Sharia rules and principles are not breached as far as none of the parties are UAE national or a foreign Muslim.
It is important to note here that the judgment contradicts the official interpretation of Law No. 28 of 2005 which considered that applying foreign law shall not contradict Sharia principles.
Is a will necessary in the UAE?
If courts in many cases applied Sharia law in matters of will of a non-Muslim, non-UAE national – why still make a will?
One of the most important things you can do while living away from your home country is to write a will. You may need to write a will for every country in which you hold assets however you should seek professional advice to establish your requirements based on your individual circumstances.
While the UAE is an expat-friendly country, and treats foreigners’ assets sympathetically in the event of death, complications may arise if someone dies without having left a valid will. You could save your loved ones a lot of heartache if you leave a will that clearly outlines your wishes for the disposal of your assets and for the burial, cremation or repatriation of your remains.
If no will is in place, UAE law will apply to your assets situated in each of the Emirates which may result in the local Court ordering for your assets to be distributed among your surviving family members in accordance with Sharia’h principles. Alternatively, your family may wish to apply to the local Courts for the application of the laws of your home country. These costly and lengthy procedures can often be eradicated by thinking ahead and putting a will in place.
How to put a will in place?
There are a number of ways in which you can put a will in place in the UAE, either by utilising the local Courts, the Abu Dhabi Non-Muslim Wills Office, which registers expatriates’ wills for Abu Dhabi and Al Ain, or the Dubai International Financial Centre (DIFC) Wills and Probate Registry in the case of Dubai and Ras Al Khaimah.
Each method has its own registration process however the issues that you will need to address in any will remain largely the same:
1. Who will be appointed to act as your executors and be responsible for dealing with your assets in the event of your death?
2. Who will be appointed to take care of your children in the event that something should happen to you, or you and your spouse together?
3. Who will be named as your beneficiaries and inherit your assets in the event of your death?
4. What will happen to you and do you have specific wishes in relation to your funeral?
When making a will, it is important not only to consider these issues but also make efforts to organize your financial paperwork and ensure that in the event of your death your surviving family members can easily identify the assets that they will need to deal with. While you can draft your own will, it is advisable to seek professional advice from a suitably qualified lawyer when planning and preparing your will.