10 Feb 2010

ISLAM, NATIONALITY AND INHERITANCE UNDER THE UAE CONSTITUTION AND LAW: QUESTIONS AND ANSWERS

Authored by: Mohammed Al Salti and Tarek El-Bakri

ISLAM, NATIONALITY AND INHERITANCE UNDER THE UAE CONSTITUTION AND LAW QUESTIONS AND ANSWERS

Part three in a series (part one, part two, part four) of questions and answers on Islam, nationality and inheritance considerations in the UAE. The series should be read in its entirety.

Is it possible to organise a will in the UAE that relates only to an estate that exists in the UAE? And if so, what form should it take?
Yes. It is possible to organise a will in the UAE that is limited to all or some property that exists in the UAE, provided all formalities that are required under Article 245 of the Personal Status Law are followed. It is preferable for such a will to be organised at the relevant Sharia court where a formal declaration of a will shall be issued. This is the preferred method, though by no means the only one for organising a will. 
 
Another method would be to draft an informal will (ie in private) and have the Notary Public attest the signature thereon. Finally, an informal document may be created by the testator in his own hand writing and signed by him. 
 
The most important thing to remember, especially in relation to the last two methods, is to use the word “will” or a closely equivalent term, when drafting the document. It is preferable however, that the will is organised before the relevant Sharia court to ensure that all formal requirements are met and in order to dispel any future challenges as to its validity and enforceability after death.
 
There are other points that must be considered for Muslim testators. For instance, according to Article 242 of the Personal Status Law, a will shall only be valid for one third of a deceased's estate meaning that a Muslim testator may only bequeath one third of his estate by way of will (and then only to persons who are not eligible for a direct share under Sharia law). If there is an intention to bequeath more than one third by way of will, then it must be by consent of the statutory (legal) beneficiary(ies), but only to the extent of each consenter's share under Sharia law. To the extent that the will relates to real estate, then registration requirements of the relevant land registry must also be considered.  
 
May a testator under UAE law withdraw or amend his will, or is it binding for life once it is organised?
Yes, a will may be amended or withdrawn. Article 248.3 of the Personal Status Law provides that a testator may amend or cancel part or all of his will. This is because wills are regarded as “voluntary contracts”that may be withdrawn as long as the testator is alive and retains full legal capacity.

Can an executor be appointed to execute a will that involves property in the UAE if such executor is neither UAE national nor Muslim?
Yes. Under UAE law, a testator may appoint an executor during his life time for his will, provided, among other things, that the executor is of the same religion as the ward or beneficiary under the will, so if a ward or a beneficiary is a Muslim, so must the executor, and the same would apply to a Christian ward or beneficiary, who would require a Christian executor etc. 
 
It is worth mentioning that a will may be made in favour any person, be they legal beneficiaries, wards or others and be they Muslim or Christian etc, so that a will may be made from a Muslim to a non-Muslim and vice versa. It is only the executor who must be of the same religion as the ward or beneficiary. It must be remembered that a will may be made from a Muslim to a non-Muslim and vice versa and, in respect of Muslims, a will may be made to a statutory (or legal) beneficiary, provided the other statutory beneficiaries acquiesce, while a Muslim testator may devise only one third of his estate to persons other than statutory beneficiaries unconditionally. 
 
Should a testator fail to appoint an executor during his life time, the court will appoint one in the case of a ward. In normal circumstances an executor will be appointed by the court by application of "concerned parties", which not only refers to the statutory beneficiaries but also to creditors and others.