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The Dubai International Financial Centre (DIFC) recently launched the DIFC Wills and Probate Registry (WPR) that will allow non-Muslim expats in Dubai to control what happens to their assets based here in the event of their death.
The DIFC WPR is an administrative body which works with the DIFC Courts in the production of grants and court orders for the distribution of assets as well as guardianship. Its creation enables non-Muslim expats to register a will under the internationally-recognised Common Law.
Also, as a ''common law'' jurisdiction, the use of the DIFC procedure would allow for testamentary freedom for dispositions for non-Muslim expatriates and a speedy/orderly administrative process of a deceased non-Muslim's estate in Dubai.
Should you wish to prepare a DIFC Will, it is prudent to seek the advice of a correctly licensed Legal Consultant. Wills are important documents that should be prepared by qualified and licensed lawyers. As noted on the DIFC WPR Registry website, a ''home drafted will may be invalid or ineffective, causing unnecessary burdens and expenses on your executors and beneficiaries... it is advisable to consult a qualified legal representative.''
Here are a few things to keep in mind.
- Under the current situation, how are the UAE assets of a non-Muslim dealt with after death?
Currently, the distribution of such assets is guided by UAE Federal Law (Personal Status Law and the Civil Transactions Code) and public order in accordance with Sharia custom and principles. Following a death, the UAE Courts will examine an estate and potentially distribute it according to Sharia law, where distributions are as per fixed share ratios.
- So what does that mean in more detail?
Under Sharia law, a surviving wife who has children qualifies for an eighth of her husband's estate, and a surviving husband who has children qualifies for one quarter of his wife's estate. The remainder of the estate will be distributed amongst other family members, depending on who survives the deceased at the date of death.
- What about guardianship of children?
Whilst a surviving wife may be appointed as a custodian of any children of the marriage, she may not automatically be appointed as the legal guardian. A surviving husband is likely to be appointed as a custodian and legal guardian of any children of the marriage.
- Can a non-Muslim make a will under UAE federal law?
A non-Muslim individual can make a will in accordance with UAE law and procedures. Such a will expresses an intention for moveable assets situated in the UAE to pass in accordance with the testator's (person who made the will) home country law. However, the application of home country law to immoveable assets (real estate) remains a grey area in the UAE Courts.
It is important to realize that the application of such a will, in addition to the UAE law, is at the full discretion of the UAE Courts. This is something which creates uncertainty and results in expatriates retaining funds outside of the UAE.
- What then are the benefits of registering a will at the DIFC WPR?
The DIFC is the first jurisdiction in the region where non-Muslims can register a Will under common law inheritance rules. Registering of such wills began officially on May 4, 2015 and will promote certainty amongst expatriates, promote investment in the region and avoid family members becoming involved in uncertain proceedings often encountered in the UAE Courts.
- What are the requirements?
The testator must not be of Muslim faith, must be over the age of 21 years and have assets situated in Dubai. It is not a requirement to have a UAE residence visa. If a testator wishes to make provision for guardianship of their minor children then the children must be living with the testator in Dubai.
- Where can I obtain further information?
Should you wish to prepare a DIFC Will, it is prudent to seek the advice of a correctly licensed Legal Consultant. TWS Legal Consultants is licensed by The Government of Dubai Legal Affairs Department, The Dubai Rulers Court and Registered with the Dubai International Financial Centre Courts' Register of Legal Practitioners.
Should you wish to prepare a DIFC will or should you wish to review your existing will in light of the aforementioned developments, it is prudent to seek the advice of a lawyer registered with the Government of Dubai Legal Affairs Department. It is important to ensure that the will is drawn up in line with the Registry's legal requirements. Local legal advice should be sought to avoid the risk of the will being rejected by the Registry.
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Source: Nita Maru, Special to Property Weekly
The writer is Managing Partner of TWS Legal Consultants, which is registered with the DIFC Court's Register of Legal Practitioners. She is a British qualified solicitor with more than 16 years of experience at senior positions in London and the UAE