THE DUBAI INTERNATIONAL FINANCIAL CENTRE WILLS AND PROBATE REGISTRY

Global Market Place Abu Dhabi

07 Jul 2016 THE DUBAI INTERNATIONAL FINANCIAL CENTRE WILLS AND PROBATE REGISTRY

English language will registration non-Muslims Dubai

Legal uncertainty regarding inheritance has always been a concern for non-Muslims in the United Arab Emirates (the “UAE”) as to the legal procedure follows the death of a non-Muslim, and the distribution of the deceased’s assets. This current perceived uncertainty stems from the fact that non-Muslims’ assets, might be distributed in fixed shares (eg. son gets double the daughter) according to the heirship rules of Sharia Law, where there is no will in place. As a consequence, the Dubai International Financial Centre (the “DIFC”) has identified a massive capital flight from the Emirate. English language will registration non-Muslims Dubai

Wishing to reverse this flow and encourage investment into the Emirate, the Wills and Probate Registry (the “Registry”) has been set.

Launched in May 2015, the Registry aims to provide non-Muslims, for the first time in the Middle-East, the ability to register English language wills that will allow their assets to be transferred upon death according to their own desires. The creation of the new Registry is a significant development for non-Muslims living in Dubai and who were concerned about the validity of their wills under the Sharia Law in the UAE. The DIFC provides an appropriate legal mechanism in order to facilitate testamentary freedom and to provide certainty and simplicity for non-Muslims owning assets in Dubai.

This publication aims to give a brief overview of the Registry’s key features and mechanisms, English language will registration non-Muslims Dubai.

 

 

WHAT IS THE DIFC REGISTRY AND ITS LEGAL FRAMEWORK?

An English language will registration non-Muslims Dubai based inside the DIFC, enabling the formal registration of wills.

The DIFC is a Common Law jurisdiction. The Registry’s Rules are based primarily on the principles contained in the UK Estates Act and Probate Rules. Sharia principles do not form part of the DIFC Registry’s legal framework.

 

WHAT IS THE PURPOSE OF THE DIFC REGISTRY?

The Registry (based on Resolution no. 4 of 2014) creates legal certainty for individuals of various origins living, investing and conducting business in Dubai in relation to the transfer of their assets to their loved ones upon death according to their own wishes, reflecting their own laws, traditions and cultures. English language will registration non-Muslims Dubai.

In addition, a guardianship clause can be included in a DIFC will (“DIFC Will” or “Will”).

WHAT ARE THE REQUIREMENTS TO REGISTER A WILL AT THE DIFC REGISTRY?

  • Testator

The testator (an individual who makes a will) must have reached the UAE age of legal majority (twenty-one (21) years old).

The testator must not be Muslim (i.e. an individual who at the date of death is not a Muslim according to the law and practice of the UAE) [1]. A declaration to this effect is made in the DIFC Will, but this status will also be tested on death (e.g. to ascertain whether the deceased converted to Islam after making the DIFC Will)[2].

The testator must own assets in the Emirate of Dubai, but there is no residency requirement. In other words, even non-Dubai residents can register a Will with the DIFC Registry.

  • Location of Assets

The assets dealt with under a DIFC Will must be situated in the Emirate of Dubai, they can be ‘onshore’ or free zone assets. However, those assets physically held in any other Emirate, or outside the UAE cannot be dealt with under a DIFC Will[3].

Moreover, Dubai located real estate can be covered in a DIFC Will.

  • Limitations

While the DIFC Registry provides for full testamentary freedom, any DIFC Will must also comply with the law of succession of the nationality of the deceased, should they be subject to it.

WHAT IS THE PROCESS TO REGISTER A WILL AT THE DIFC REGISTRY?

Pre demise

It is important to ensure that the DIFC Will is drawn up in line with the Registry’s legal requirements. An appointment is booked online (difcprobate.ae) or through a mobile application (DIFC Wills); the testator, the intended witness(es) (chosen by the testator) and the guardian(s) if any, must all attend the appointment together[4].

A registry officer will check the unsigned Will to ensure it meets the legal requirements:

  • that the witness is not a beneficiary; and
  • that guardianship appointments are appropriate under civil law, etc.

Signing of the DIFC Will takes place in the presence of a member of the registry officer[5].

The DIFC Will will be stored electronically at the DIFC Registry as the original and can only be accessed by the testator during his lifetime (unless express authority is provided to someone with power of attorney) but will be available to the beneficiaries on death[6].

Post demise

The fact that the deceased has a registered Will at the DIFC Registry, will be made publicly available. The names and addresses of the deceased, the executors and guardians (if any) will be published at the DIFC Registry.

As for the content of the DIFC Will, only the beneficiaries and executors will have a right to see the contents of the Will.

Only a legal representative can file for probate on behalf of the estate. The grant of probate, which is a legal instrument that gives authority to the executor to handle the disposal of the deceased’s assets and debts, will be issued by the DIFC court (the “Grant of Probate”). The DIFC court will provide distribution orders for the various financial institutions or local agencies.

Guardianship clause

A guardianship clause can be included in a DIFC will (“DIFC Will”).

However, this can be done only on the condition that the testator has minor children who habitually resides with him in Dubai. Any guardian appointed by a DIFC Will must not be contrary to public order or give rise to a criminal offence (e.g. it will not be possible to appoint a male, non-blood relative as the guardian of a minor female, even where they are part of a couple)[7].

WHAT HAPPENS IF THERE IS A CHANGE IN THE CIRCUMSTANCES?

All DIFC Wills should be regularly reviewed and amended in case of financial or family circumstances change.

If the testator wishes to amend a DIFC Will or add a new, he must submit an entirely new Will. In an effort to avoid confusion, ‘codicils’ (supplements to Wills) may not be registered[8].

If the beneficiaries wish to vary the Will after the death (e.g. if they wish to redirect, or redistribute the bequests), this can be achieved through the DIFC courts.

The DIFC courts are also competent to adjudicate any contentious probate matters. Moreover, probate grants, court orders and guardianship orders are issued by the DIFC courts. Grants and orders are issued in English and Arabic.

WHAT ARE THE COSTS?

Registration Costs of a DIFC Will

The cost of registering a will at the DIFC Registry is ten thousand Dirhams (AED 10,000.00) for a single standard DIFC Will and fifteen thousand Dirhams (AED 15,000.00) for two mirror DIFC Wills.

The fee for a single guardianship DIFC Will is five thousand Dirhams (AED 5,000.00) and for two mirror guardianship DIFC Wills is seven thousand five hundred Dirhams (AED 7,500.00)[9].

Such costs do not include professional fees for assistance in drafting the DIFC Will, registering it, acting as witness, drafting the letter of wishes, being appointed and/or acting as executor.

Enforcement Costs

The cost of an application for a Grant of Probate is five thousand five hundred Dirhams (AED 5,500.00)[10].

WHAT HAPPENS IF NO DIFC WILL HAS BEEN REGISTERED?

Existing UAE law appears to provide that the law of the nationality of a non-Muslim should apply to their estate in the event of his death, however, in practice the Dubai courts have often applied Sharia Law principles to the succession of the estates of deceased non-Muslims.

CONCLUSION

The high costs of registering a DIFC Will are justified by the fact that most clients see the cost as good value for the certainty it provides in securing the succession to their estates on the terms they choose.

Moreover, if the deceased does not leave any form of Will or only makes an overseas Will (which the executors seek to enforce in Dubai), the potential costs post death are likely to be significantly higher than registering a DIFC Will.

In 2015, the Registry registered six hundred fifty (650) Wills. Due to this constant increase of the number of DIFC Will registration, it seems that DIFC Registry satisfies the demand of non-Muslims for an effective succession planning solution for both Dubai assets and the care arrangements of minor children. English language will registration non-Muslims Dubai.

Not only does the Registry provide the necessary comfort and security sought by families, but it makes an important contribution to Dubai’s economy, offering a destination for investment and a secure environment.

Our Experience
lecocqassociate provides a full range of financial regulatory, corporate and commercial advice in relation to the structuring and incorporation of entities.

This newsletter is for information purposes only. It does not constitute professional advice or an opinion. Please contact Mr. Dominique Lecocq on moc.e1503216070taico1503216070ssaqc1503216070ocel@1503216070lrd1503216070 for any questions.

English language will registration non-Muslims Dubai.

[1] Article 9 (1) (a) of the DIFC Wills and Probate Registry Rules.

[2] Article 9 (4) of the DIFC Wills and Probate Registry Rules.

[3] Articles 9 (2) and 11 of the DIFC Wills and Probate Registry Rules.

[4] Article 9 of the DIFC Wills and Probate Registry Rules.

[5] Article 8 of the DIFC Wills and Probate Registry Rules.

[6] Article 9 of the DIFC Wills and Probate Registry Rules.

[7] Article 86 of the DIFC Wills and Probate Registry Rules.

[8] Article 18 of the DIFC Wills and Probate Registry Rules.

[9] Practice Direction No. 1 of 2015, The DIFC Wills and Probate Registry’s Fees by the Dispute Resolution Authority.

[10] Practice Direction No. 1 of 2015, The DIFC Wills and Probate Registry’s Fees by the Dispute Resolution Authority.