Unraveling the Complexities: Intestate Succession in the UAE
The Pivotal Importance of Wills
In the ever-evolving landscape of the United Arab Emirates (UAE), the subject of wills and inheritance has garnered significant attention, particularly for expatriates navigating the intricate web of local and international laws. The UAE’s unique cultural tapestry, woven from the threads of Islamic traditions and modern global influences, necessitates a nuanced understanding of the legal ramifications surrounding intestate succession – the process that unfolds when an individual passes away without a valid will.
As a hub for diverse nationalities, the UAE presents a multifaceted challenge when it comes to the distribution of assets and the determination of legal heirs. This intricate scenario begs the question: What transpires if a spouse, a pivotal figure in a family’s life, departs without leaving behind a legally binding testament?
Navigating the Intricacies of Sharia Law
For Muslim residents of the UAE, the principles of Sharia law take precedence in matters of inheritance and succession. Enshrined within the Personal Status Law of the UAE, these tenets outline a intricate framework that governs the distribution of assets when an individual passes away intestate.
In accordance with Article 313 of the Personal Status Law, inheritance is defined as “the necessary devolution of the property and financial rights following the death of their owner to those worthy.” This Islamic concept underscores the significance of predetermined guidelines for asset allocation, ensuring a harmonious transition of wealth within the boundaries of religious doctrine.
The Hierarchy of Legal Heirs
When a Muslim individual passes away without leaving a will, the UAE courts meticulously identify and authenticate the legal heirs, adhering to the hierarchical structure delineated in Articles 321 through 328 of the Personal Status Law. This intricate process involves the verification of familial relationships through the presentation of supporting documentation, such as marriage and birth certificates.
The legal heirs, as defined by Sharia law, encompass a broad spectrum of relatives, including spouses, parents, children, grandchildren, siblings, grandparents (paternal lineage), uncles, aunts, nephews, and nieces. However, it is crucial to note that certain individuals are precluded from inheriting, such as adopted children, illegitimate offspring, non-Muslims, those who have committed murder, and divorced women outside the “iddat” period (a specific waiting period after divorce).
The Predetermined Shares of Inheritance
One of the hallmarks of Sharia-compliant inheritance is the concept of predetermined shares, which allocates specific portions of the deceased’s estate to designated beneficiaries. These fixed shares are meticulously outlined, ranging from half, quarter, eighth, two-thirds, one-third, and one-sixth of the remaining estate.
The distribution of these shares is governed by a hierarchical system, with certain individuals taking precedence over others. For instance, the two parents, spouses, paternal grandfathers or their agnate ascendants, grandmothers who are not the decedent’s heirs, daughters of the son or their descendants, sisters in the absolute, and cognate brothers are considered “compelled heirs,” entitled to receive their predetermined portions.
The Limitations of Muslim Wills
While Islamic law recognizes the concept of wills, it imposes specific restrictions on their scope and applicability. A Muslim individual in the UAE is permitted to bequeath a maximum of one-third of their estate through a will, provided that the remaining legal heirs grant their written consent. This provision is enshrined in Article 250 of the Personal Status Law, which states: “A Will may not be made to an heir unless approved by all other major heirs; it is then executable on the share of the one who consented.”
Furthermore, a Muslim will cannot contravene the principles of Sharia law by excluding legal heirs or altering their predetermined shares. This limitation underscores the delicate balance between individual autonomy and the preservation of Islamic traditions within the UAE’s legal framework.
The Intricacies of Non-Muslim Inheritance
For non-Muslim expatriates residing in the UAE, the process of inheritance and asset distribution can be equally intricate, albeit governed by different principles. In the absence of a legally valid will, the UAE courts may defer to the inheritance laws of the deceased’s home country, provided they do not conflict with the fundamental tenets of Sharia law.
However, this approach is not without its challenges, as the rules of intestacy can vary significantly across different jurisdictions, leading to potential conflicts and uncertainties in the distribution of assets. Furthermore, the UAE courts may impose additional requirements, such as the need for non-Muslim beneficiaries to obtain official recognition of the will, further complicating the inheritance process.
The Consequences of Intestacy: Loss of Control and Increased Costs
One of the most profound implications of dying intestate, regardless of religious affiliation, is the loss of control over the distribution of one’s assets and the determination of legal guardianship for minor children. Without a legally binding will, individuals relinquish their ability to dictate the beneficiaries of their estate, the timing of inheritance for their offspring, and the appointment of trusted guardians to oversee their children’s well-being.
Moreover, the absence of a will can lead to increased administrative costs and potential tax implications, particularly for those with assets in multiple jurisdictions. In the UAE, where local laws favor the male side of the family in estate settlements, the consequences can be far-reaching, including the potential for inheritance tax liabilities that could have been mitigated through proper estate planning.
The Importance of Wills for Parents
Even for individuals with modest assets, the importance of having a will cannot be overstated, especially for those with children. A legally valid will provides the courts with a clear and legally binding statement of the testator’s intentions regarding the care and well-being of their offspring.
Furthermore, a will enables parents to exercise control over the timing of their children’s inheritance, ensuring that their assets are not prematurely distributed before their offspring have reached a level of maturity and financial responsibility deemed appropriate by the parents. This proactive measure can safeguard against the potential pitfalls of inheritance at a young age, allowing children to focus on their education and personal development without the distractions of premature wealth.
Seeking Professional Guidance
Navigating the intricate web of inheritance laws and asset distribution in the UAE can be a daunting task, particularly for expatriates unfamiliar with the nuances of local and international legal frameworks. In such scenarios, seeking the counsel of experienced legal professionals can prove invaluable.
Family lawyers and legal consultants specializing in wills and estate planning can provide tailored advice and representation, guiding clients through the complexities of will drafting, estate administration, and inheritance proceedings. Their expertise can shed light on the specific considerations and strategies applicable to individual circumstances, ensuring that clients’ wishes are accurately reflected in legally binding documents.
The Importance of Cross-Border Estate Planning
For expatriates with assets spanning multiple jurisdictions, the need for comprehensive cross-border estate planning cannot be overstated. The interplay of different legal systems and tax regimes can create intricate challenges that require specialized knowledge and strategic planning.
By engaging the services of professionals well-versed in international estate planning, individuals can navigate the complexities of asset distribution, tax optimization, and the preservation of wealth across borders. This proactive approach can mitigate potential conflicts, minimize tax burdens, and ensure that the testator’s wishes are respected and upheld, regardless of the geographic location of their assets.
The DIFC Wills and Probate Registry: A Beacon of Clarity
In recognition of the unique challenges faced by non-Muslims and expatriates in the UAE, the Dubai International Financial Centre (DIFC) has established the DIFC Wills and Probate Registry. This innovative initiative provides a comprehensive legal framework for the registration and administration of wills, offering a degree of certainty and clarity that transcends the complexities of cross-border inheritance.
By registering their wills with the DIFC Wills and Probate Registry, individuals can ensure that their assets located in Dubai are distributed in accordance with their wishes, regardless of their religious affiliation or nationality. This specialized entity serves as a beacon of clarity, providing a streamlined and transparent process for estate planning and probate matters within the UAE’s dynamic legal landscape.
Embracing Proactive Estate Planning
In the intricate tapestry of the UAE’s legal and cultural landscape, the importance of proactive estate planning cannot be overstated. Whether navigating the nuances of Sharia-compliant inheritance or the complexities of cross-border asset distribution, the presence of a legally valid will can provide a sense of control, clarity, and peace of mind.
By seeking the guidance of experienced legal professionals and leveraging the resources available, such as the DIFC Wills and Probate Registry, individuals can ensure that their wishes are respected, their assets are preserved, and their loved ones are protected, even in the face of life’s inevitable uncertainties.
Ultimately, embracing proactive estate planning is not merely a legal obligation but a profound act of foresight and love – a testament to one’s commitment to safeguarding the future well-being of those who matter most.
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 Judgement
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.
