The much awaited DIFC Wills and Probate Registry (“WPR”) has finally arrived and is due to be operational from 30 April 2015! Although Wills & Probate law is not our forte, being maritime and corporate law specialists, we recognise the importance of this latest development and know it will be of great assistance to those of us that have lived abroad for a long time and have started families. The question of succession and inheritance with regards to Dubai-based assets should be given serious consideration and therefore we have prepared a Q&A for you so you better know how to protect your family.
Why is the new WPR deemed necessary?
Put simply, because the current provisions for non-Muslims fall short of the requirements for non-Muslims when planning their inheritance and succession. Currently, the rules for non-Muslims regarding succession and inheritance are laid out in the UAE Federal Law and the procedure for distributing the deceased’s estate in the Dubai Courts is often perceived as legally complex, time-consuming, uncertain and costly. Consequently, people living in Dubai tend to move their assets to overseas jurisdictions.
What will my position be if I die intestate (without a will)?
If you die intestate, the local (UAE) courts will deal with your estate according to the rules of Sharia. Managing the estate in this way involves distribution in fixed shares which, although may work in some situations, may be unsuitable for many families and possibly a nasty surprise. For example, where a husband/father passes away, only one eighth of the estate will be distributed to the wife and the son will get double that of the daughter.
But what if I already have a will not registered with the WPR?
Your will and its execution we be governed by UAE law. Whilst there is provision in the UAE law for the Dubai Courts to apply the law of the deceased’s home nation to foreigners’ wills, in practice Sharia law is often applied. This is due to the general rule that it is inappropriate to contradict Islamic Sharia because the Sharia clearly outlines how succession is to be dealt with.
There are no current exemptions for non-Muslims from the application of Sharia law, if the judge exercises his discretion to apply it. Accordingly, the recorded intentions of a non-Muslim to distribute his estate in a prescribed manner may be unenforceable if contrary to Sharia. Consequently, non-Muslims cannot rely upon the UAE courts to distribute their estate as intended. Naturally, this has caused a high degree of confusion and dissatisfaction with the present law.
By way of example, Sharia dictates that the mother of the deceased shall be entitled to one-eighth of the estate. Should a man leave his estate in his will to his wife and children only and the judge applies Sharia; then the will would be unenforceable because it disinherits the mother (provided of course she outlived him), unless she waives her right to her portion.
If the wife wanted to challenge the manner of distribution, she would have to appeal the decision in the Dubai Courts. Until a final decision is handed down (which can take years), the estate assets would be frozen.
So why is the DIFC W&P Registry significant?
It provides for a long-awaited alternative for non-Muslims enabling them to register a will with certainty that their testamentary freedom (to leave one’s estate to whom they see fit) will be recognised.
The DIFC will be the first jurisdiction in the MENA region where non-Muslims can register a will under internationally-recognized common law principles. The new rules have been drafted to reflect the law in the UK but incorporate other aspects of other leading jurisdictions.
How will it work?
The WPR will be within the DIFC jurisdiction and will work with the DIFC Courts for the production of grants and court orders for the distribution of assets.
We expect that the Registry will register the wills of non-Muslims and, upon receipt of evidence of the testator’s death, issue the necessary Court orders to allow for the distribution of the deceased’s Dubai-based assets. This will also apply to issuance of Court orders relating to Guardianship in accordance with the registered will.
Am I eligible to make a will in the WPR?
To be eligible for a valid will in the WPR the following conditions apply:
1. testator (person making the will) must be a non-Muslim
2. The testator must be 21 years of age or older.
3. The will must only cover (movable or non-movable) assets in Dubai
4. The will must be witnessed by (signed in front of) the Probate Registrar or an authorised officer and must be registered with the DIFC.
Please note that the testator can be a resident or non-resident.
What is the cost?
Registering the will with the WPR is expected to cost USD 2,800 and the grant of probate upon the person’s death is expected to cost USD 1,500.
My partner and I are of different nationalities (both non-Muslim). Can we provide for temporary Guardianship for our children in both of us pass away?
Yes. Under section 86 of the WPR Rules, parents can provide for an interim guardian in the event that no other parent remains alive after the deceased’s death. Upon death of the testator, the Guardian shall notify the Registrar in writing stating whether he accepts the appointment or not. If the appointed Guardian accepts, he/she has all the rights, duties, powers, responsibilities and authority which under the laws of the UAE a Guardian has in relation to the child and his property. An order will be issued by the Court accordingly and the Guardian will be subject to the laws of the DIFC Courts.
Therefore, if in the event that both persons with parental responsibility for a child/children die at one time then a guardian can be appointed expressly under the will.
To be safe, it is advisable that your partner also makes a will providing for interim Guardianship and the same appointee so as to avoid a conflict with UAE Federal Law and possible application of Sharia.
As a non-Muslim, what can I do to take advantage of this development and ensure my family’s future is secure?
You should not attempt to prepare a will yourself or obtain one from online sources since even the slightest of mistakes can render the will ineffective and your estate will be apportioned under the intestate rules.
Contact us to arrange consultation with one of our DIFC specialist lawyers to discuss the options available to you in succession and inheritance matters.
Should you have any further questions, please do not hesitate to contact us.
Disclaimer: the content herein is subject to any revisions applied by the WRP to the drafted wording opened for consultation.