Think you need to be old and wealthy to have a will? Wrong. Every Dubai resident needs to protect their assets and legacy, so we spoke to the experts about the new DIFC Wills & Probate Registry to find out more
Many people do not know what a will does because it is a topic that is often avoided. That can be dangerous as it results in many misconceptions arising in relation to individuals’ rights to dispose of their assets. You may have worked hard your entire life to build up a portfolio of assets, but the state may still decide where and to whom some of your assets should go. The reality is we are all going to die, so let’s talk about it.
A loved one’s death is not only an emotional shock; it can also entangle families in costly, time intensive and legally complex processes. It may also disturb any semblance of order and normalcy they try to restore after the passing of a loved one. Here, we address some of the common misconceptions that expatriates in Dubai may have in relation to succession. The DIFC Wills and Probate Registry marks the introduction of a new set of rules relating to succession and inheritance matters for non-Muslims with assets in Dubai, and it is a game changer.
What is the concern for expats when investing in Dubai?
“In the UAE, following the death of a non-Muslim, the distribution of the deceased’s assets is guided by principles of public order and UAE laws, and in most cases Shari’a law serves as the primary basis for legislation in succession matters.” said Nita Maru, Principal, TWS Legal.
For many Dubai expatriates and business people, this means uncertainty and a lack of familiarity with distribution of their assets and their legacy at time of death. The questions on succession and inheritance motivate individuals to move their earnings and assets to overseas jurisdictions.
Andrew Lyons, Senior Associate of Davidson & Co states “Many Dubai expatriates are unaware that if they do not make a will, the process of transferring their assets to their loved ones after death will in many cases be guided by Shari’a, which may differ quite significantly from the traditions and habits of their own cultures. This means that the state may effectively decide which of your family members receives which share
of your estate.”
I have already been told I can draft a ‘Shari’a compliant will’ to protect my assets. Is this enough?
According to Cynthia Trench, Principal of Trench & Associates “There is no such thing as a Shari’a compliant will for non-Muslims (who do not wish to abide by Shari’a) which deals with all of your assets in the UAE. In accordance with Shari’a principles, a Muslim may only make a will for a third of their estate, and may only give such one-third to a Shari’a heir, contingent upon acceptance of the will by the other Shari’a heirs. The designated beneficiaries in this limited will should otherwise be restricted to those persons who are not direct family. Therefore, professionals offering non-Muslim expat clients the option to notarise a ‘Shari’a compliant will’ for their entire estate may ultimately be a futile effort and a risky endeavour.
“In principle, thanks to the UAE Personal Status Law, a non-citizen (and non-Muslim) can request the application of their own country’s law for matters such as divorce and succession. However, the interpretation of various foreign laws and their relevance to a specific succession case proves challenging and confusing, while Shari’a dispositions gave the judiciary clear guidelines.”
Until recently, there was no guaranteed solution aside from a person hoping that their designated heirs would, after your death, agree to re-distribute the estate amongst each other, without engaging in legal battles.
What is the DIFC Wills and Probate Registry?
The DIFC Wills and Probate Registry is a first-of-its kind service in the MENA region. It gives eligible individuals with assets in Dubai the ability to register English language wills according to the principle of testamentary freedom, meaning the freedom to dispose of their property upon death as they see fit, and in accordance with the laws of their home country. It is a unique service at the heart of the MENA region, respecting and recognising cultural and religious diversity of the people living here.
Through this development, Dubai has become the first jurisdiction in the Middle East where non-Muslims can make a will under internationally recognised Common Law principles. The will registration process involves a one hour appointment which can be booked online (difcprobate.ae/appointments).
What does the DIFC Wills & Probate Registry offer?
The Registry aims to provide legal certainty and peace of mind to non-Muslim expatriates, allowing them to choose their beneficiaries, ultimately ensuring that the person’s wishes as stated in their will are carried out, upon their death. It has been designed to protect people’s Dubai assets, their family and loved ones after death.
The system functions as an opt-in mechanism, but the will registration is a pre-condition for those who chose to opt into this system. It allows executors and beneficiaries of an estate to go through the probate process, meaning the process of distributing the deceased’s assets to the beneficiaries named in the will, through the exclusive jurisdiction of the DIFC Courts, which functions in the English language.
What is the role of the DIFC Courts?
The DIFC Wills and Probate Registry works on the basis of existing UAE laws and a new legal development: the DIFC Wills and Probate Registry Rules. A separate entity, the Registry, nevertheless works in conjunction with the DIFC Courts. All Grants of Probate (court orders) after someone’s passing, will be issued by DIFC Courts judges.
In the UK, it is estimated that roughly only 200 out of 200,000 wills have resulted in probate disputes in court. This represents barely 0.1% of the probate grants issued, and in most of those cases, the dispute was a result of the will not being executed properly i.e. the will was not signed or witnessed correctly.
“The risk of such events will be significantly reduced through the formal will registration process utilised by the DIFC Wills and Probate Registry. This system mitigates the risks of probate disputes, by asking the testator to sign the will in the presence of a registry officer, who also acts as the second witness to the will” said Alastair Glover, Principal Associate of Wragge Lawrence Graham.
He continues “The process thereby eliminates most of the challenges to the validity of the will such as those based on lack of proper execution, lack of testamentary capacity, or forgery. Other grounds to challenge a will, such as those based on construction are usually the result of poor drafting, which should be overcome where a lawyer is appointed to draft the will.”
Occasionally, however, there may be challenges which will require the DIFC Courts to rule on contentious matters, such as: when other doubts arise about whether the executors are performing their legal duties, or challenges as to the identity of the beneficiaries, their right to inheritance, issues of paternity, etc.
In case a dispute over a will results in litigation, the parties are to be guided through the DIFC Courts, in accordance with the Rules, and all other laws applicable in the DIFC. Over the past nine years, the DIFC Courts have established a reputation for its efficiency, and its court orders are known for being easily enforced in Dubai.
What does a will contain and why do I need to worry about my assets after death?
Yann Mrazek, Managing Partner of M/Advocates of Law informed us “It is strongly advised that you make a will if you wish to choose which shares of your estate are to be distributed to which people. A will can also help safeguard your loved one’s future, and limit the risks of legal disputes after your death.
“The will appoints an executor; this can be a person or company you trust (for example, your spouse, son or daughter, friend, lawyer, wealth advisor), who then administers the estate and distributes your assets to the beneficiaries you listed in your will. You can also appoint guardians for your minor children in the unfortunate event that you (and your spouse) pass away.”
The will also carves out various beneficiaries in line of priority and can provide instructions on how and when your assets are to be distributed. It may cover various specific family situations and provide instructions to your loved ones, in line with your concerns and wishes.
Diana Hamade, Founder of International Advocates Legal Services said “Unlike a contract, the will is not an ‘animate’ legal document subject to immediate implementation and amendments, if necessary. A person may modify their will during their lifetime, but more often than not the document is only opened and given effect to by a judge once the person passes away. To avoid omissions, it is crucial to consult a licensed legal professional to draft your will, who will ask the right questions and design your will to suit your specific family circumstances and potential situations. Additionally, if a person dies without a will in Dubai, it is known as ‘having died intestate’ and this means the wealth will be distributed according to UAE Personal Status Law 28 of 2005. The DIFC Will gives people the opportunity to secure their loved ones, preferably following the advice of lawyers to prevent any legal issues causing the invalidation of the will.”
Can I draft my own will?
An individual may draft their own will, however, it is highly recommend you use the services of a licensed legal practitioner. This way, you can make sure this important legal document stands the test of time.
How much does it cost to register a will?
A single will registration covering Dubai assets and guardianship costs Dhs10,000 and mirror wills (wills made by spouses) cost Dhs15,000 for both husband and wife. If you do not have assets in Dubai and only wish to appoint guardians for your minor children, a guardianship will can be registered for Dhs5,000, and Dhs7,500 for two mirror guardianship wills.
The policy makers decided to front-load the cost onto the person registering the will and allow for significantly lower probate costs, later on. A Grant of Probate costs a fixed fee of Dhs5,500 and unlike in other countries is not determined as a percentage of the value of the estate. No inheritance tax is applicable in the UAE on assets held here.
How do I explore this subject further?
Thinking about making a will should be an integral part of an expat’s future and financial planning. The DIFC Wills and Probate Registry itself has a website which can be consulted for topic-related information: difcprobate.ae.
Contributing law firms
Trench & Associates: Tel: (04) 3553146, trenchlaw.com
International Advocate Legal Services: Tel: (04) 2844733, lawfirmdubai.net
TWS Legal (The Wills Specialists): Tel: (04) 4484284, willsuae.com
Wragge Lawrence Graham: Tel: (04) 4375100, wragge-law.com
Davidson & Co: Tel: (04) 3438897, davidsoncolaw.com
M/Advocates of Law: Tel: (04) 2955737, m-hq.com