- Category: NM Law
- Published on Monday, 22 May 2017 13:10
- Written by Super User
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Nasser Malalla Advocates & Legal Consultants is a full-service UAE Law Firm with an independent department dedicated to Will drafting services. Unlike the majority of Will writing providers in the UAE, our firm is a fully licensed advocacy as well as a legal consultancy firm with full rights of audience before all of the UAE Courts which allows our firm to represent our clients in case of probate being required through UAE Courts.
A Will is an important legal document which enables a person to give specific instructions for the disposal of his or her assets upon death. Assets belonging to an individual typically include real estate property, monies, investment accounts, bank accounts, insurance policy proceeds, valuable jewellery, cars and personal or household belongings that you legally own.
Our Wills department can assist you in the transfer of your assets to individuals, families or institutions, in line with your wishes.
A Will is also particularly recommended for non-Muslim expats in the UAE as it can be used to specify that you do not wish Islamic law to apply to your assets. A Will is also useful for declaring your preferences for the executors and trustees of your estate, temporary and permanent guardians of your children and contributions to charitable causes as well as declaring your funeral wishes.
Non-Muslims have two main options to execute their Wills in the UAE as follows:
- DIFC Wills & Probate Registry
The Dubai International Financial Centre – Wills and Probate Registry (“WPR”) is a dedicated entity established for the sole purpose of handling probate related matters. WPR allows non-Muslims to register a Will. A DIFC Will is a Will registered with the WPR and is limited to any assets located in Dubai and Ras Al Khaimah only. A DIFC Will ensures that Islamic law shall not be considered in the distribution of assets of a non-Muslim.
The DIFC is a common-law jurisdiction, the principle of testamentary disposition is followed under the WPR rules however this is subject to a challenge brought by an heir. Upon death of the testator, the appointed executor under a DIFC Will is able to apply for a grant of probate from the DIFC Court, which once issued is enforceable in Dubai & RAK without the need for further action through the local Courts in Dubai or Ras Al Khaimah. The WPR works in conjunction with the Land Departments, the Economic Departments and other Government departments in the relevant Emirate to ensure that a Will which is registered is enforced in line with the deceased’s wishes
The DIFC WPR offers following four types of Wills
- DIFC Full Will
- DIFC Guardianship Will
- DIFC Property Will
- DIFC Free Zone Company Share Will
- Wills for UAE Assets (non-DIFC)
For non-Muslims who have assets outside the Emirate of Dubai or RAK, the most important reason to make a Will is that UAE courts will generally adhere to Sharia Law in any situation where there is no Will in place even if the deceased was a non-Muslim except if the deceased has left a Will specifying otherwise. It is therefore important to have a Will in place which accurately reflects who your beneficiaries are to be for your assets in the UAE.
A non-Muslim Will for UAE assets is subject to UAE Federal legislation on inheritance and succession which refers to the home country laws of the deceased. Generally, any assets belonging to an individual can be covered under UAE assets Will which may include real estate property, monies, investment accounts, bank accounts, insurance policy proceeds, valuable jewellery, cars and personal or household belongings that are legally owned by the deceased. There is also a potential risk that any real property in UAE may still be subject to UAE Shariah law pursuant to Federal Law No. 5 of 1985 governing the Law of Civil Transactions in the UAE (the “UAE Civil Code”) it is therefore recommended to seek advice from a professional legal advisor.
- New onshore Abu Dhabi Wills and Probate Registry
On 23 May 2017, it was reported that the Abu Dhabi government has issued a decree (“Decree”) creating a Wills and Probate Registry in Abu Dhabi (“AD Wills Registry”). The objective of the AD Wills Registry shall be to: Establish an institutional framework to register the Wills of non-Muslims with assets in Abu Dhabi and to raise the level of legal protection over such assets.
Allow the assets including fixed assets in particular to be protected through Wills registered with the AD Wills Registry.
Details of the Decree are expected to be released soon, the procedure for registration of Wills with AD Wills Registry remains to be decided. At this point and based on the available information, the newly created AD Wills Registry is likely to be a counterpart of the DIFC Wills and Probate Registry with a lower registration cost. We understand from our discussions with the Abu Dhabi Judicial Department (“Department”) that the proposed registration fee would be around AED 500 per Will. As further details of the Decree have not yet been released, it remains unclear what parameters will be in place for the AD Wills Registry to accept for registration of foreign drafted Wills as opposed to locally drafted Wills. Moreover, a question arises about how a Court might treat such foreign drafted Wills.
The news of issuance of the Decree was released on Tuesday 23th May, 2017 and according to the Department, it is in the process of being published subject to final approvals.
The key Federal legislation in the UAE on inheritance includes Federal Law No. 5 of 1985 governing the Law of Civil Transactions in the UAE (the “Civil Code”), Federal Law No. 18 of 1993 (the “Commercial Transactions Law”) and Federal Law No. 28 of 2005 regarding the UAE Personal Affairs Law (the “Personal Affairs Law”).
Article 17 (1) of the Civil Code states “inheritance shall be governed by the law of the deceased at the time of his death”. Article 2 of the Personal Affairs Law specifically allows for expatriates to elect to have the Laws of their home country apply to their UAE assets. However, there remains some uncertainty as to whether or not the home country Law is absolutely applicable in relation to real property which is located in the UAE due to Article 17 (5) of the Civil Code which says UAE Law “shall apply to Wills made by aliens disposing of their real property located in the state”.
Regardless, in the absence of a Will it is unlikely that the Law of the deceased’s home country can be applied to the estate and the alternative is UAE Shariah Law. Any efforts to have the laws of the home country must first be proved in UAE Court in which case, and at best, the rules of intestacy of the home country may be applied. Therefore, it is certainly advisable for an expatriate non-Muslim in the UAE to make a Will that clearly identifies how assets under their UAE Estate are to be distributed. Unfortunately, too many expats fail to take heed from the above and the alternative is a costly probate process often riddled with delays.
Common FAQs for Non-Muslim Wills
If you have children under the age of 21 in the UAE, it is essential to make a Will and appoint Guardians. We recommend that you appoint permanent guardians in your home country and appoint temporary guardians locally in UAE to look after the well-being of your minor children until such time as the appointed permanent guardians are able to arrive into the UAE and assume their role.
The bank will, as a matter of practice, freeze the bank account of the deceased immediately after being informed of the death regardless of whether it is a sole or joint bank account. The bank account shall remain frozen until the deceased’s beneficiaries provide an official inheritance certificate to the bank.
The deceased’s share of the money in a joint account is also regarded as a part of the estate and will be divided among the heirs according to the provisions of the law applicable to the estate, which may or may not be Shariah, depending on the nationality of the deceased. Based on the declaration of the court, the beneficiaries may access the account to the extent of their legal share in the deceased's estate (as sanctioned by the court), unless any beneficiary is authorised by the other beneficiaries to withdraw more than his share.
Yes, it is highly recommended to make a Will if you have real estate property in the UAE so as to ensure your property is distributed to your heirs in accordance with your wishes. If you have property and/or other assets in Dubai or Ras Al Khaimah it is recommended to obtain a DIFC Will to provide the certainty required for inheritance purposes.
Any assets of the deceased including Real Estate remain frozen until a Court order is obtained. The uncertainty around real property in the UAE arises from Article 17(1) of the Civil Code which states “inheritance shall be governed by the law of the deceased at the time of his death”. However, Article 17(5) of the Civil Code says UAE law “shall apply to Wills made by aliens disposing of their real property located in the state.” This opens up the question of how a UAE Judge might interpret the law and specifically the question of real estate in a non-Muslim's Will. An element of discretion creeps into the decision making of the Judge because principles of Shariah Law underpin UAE law.
Having a Will in place does help in relation to real estate (UAE Judges do follow the wishes of the deceased in the Will on a case by case basis) but, as stated, this aspect of the deceased's estate is commonly decided according to the wide discretion of the UAE Judge when the Will is presented for issuance of a Succession Certificate.
For the above reasons, a DIFC Will is highly recommended for any one owning Real Property in the Emirate of Dubai or Ras Al Khaimah only. Please refer to our section on DIFC Wills & Probate Registry. In essence the benefits of a DIFC Will include:
- Jurisdiction remains under the DIFC Dispute Resolution Authority which enshrines common law principles including the principle of freedom of testamentary disposition (i.e. as per testator's wishes).
- A DIFC Will ensures that Shariah Laws shall not be considered in the distribution of assets including real property in the emirate of Dubai;
- Where a testator elects this option, upon death, the appointed executor under a DIFC Will is able to apply for a grant of probate from the DIFC Court, which once issued is enforceable in onshore Dubai and Ras Al Khaimah without the need for further action through the local Courts.
Yes, a Will may be amended or withdrawn. Wills are regarded as “voluntary contracts” and in that they may be withdrawn as long as the testator is alive and retains full legal capacity.
No, there are currently no inheritance taxes under UAE law. However, certain fees and charges may apply to situations where the estate includes assets such as property or shares in a limited liability company.
Where a beneficiary predeceases you, their legacy or gift will usually fall back into your residuary estate unless you have made provision in the Will for another person to receive the legacy.
Once your instructions have been received, we aim to send the first draft of your Will within 7 working days.
Yes, of course, provided the testator is of sound mind.
For more information on updating an existing Will, please contact our Wills department on
or call +9714 3116534.