27 Apr 2020

When is the best time to draft your Will? The answer is, yesterday

Authored by: Michael Lunjevich and Philip Sequeira

In brief:

  • Too often people ignore the importance of having a last Will & Testament.
  • If you own a business, real estate, cars or have any bank accounts in the UAE, then you should ensure you give equal importance to your inheritance issues just like you do for your day to day business planning and family matters.
  • There are various laws that apply in the UAE in relation to inheritance and the proper drafting of a Will is paramount in order to protect against invalidation or delays in enforcement.

Too often people ignore the importance of having a last Will and Testament because they are so focused on the promise of tomorrow that they ignore the unfortunate reality that a person’s demise can come at any time. Having a Will is similar to having insurance. It might be something that you don’t need today that has cost implications to put into place, but you will certainly be grateful you put it in place if it turns out you or your family really needs it tomorrow.

Inheritance issues and thoughts about death are hard to confront, however, given the current COVID-19 pandemic, now more so than ever, one needs to ensure their Will is up to date and enforceable under UAE Laws. This is relevant in relation to both the custody of children and for the passing of assets held in the UAE to their loved ones.
 

What is the purpose of a Will and who should have one?

If you own a business, real estate, cars or have any bank accounts in the UAE, then you should ensure you give equal importance to your inheritance issues just like you do for your day to day business planning and family matters.   

A Will is a legal document that sets out your wishes to be followed after your death in distribution of your wealth.  It also takes care of guardianship issues for your children and allows you to appoint guardians (both temporary or permanent) of your minor children until they attain the age of 21.  Guardianship is of paramount importance especially if you do not have your immediate family members here in the UAE and have to rely on friends until such time your family members can travel to take control. Given current travel restrictions, this takes on even more importance than ever at this time. It is therefore vitally important to have a proper Will in place in order to make sure your wishes are well understood and taken care of.
 

Relevant Laws

There are various laws that apply in relation to inheritance in the UAE. These are:

(1) Federal Law No. 5 of 1985 (Civil Code);

(2) Federal Law No. 28 of 2005 (the Personal Status Law); and

(3) Dubai Law No. 15 of 2017 regulating inheritance, wills and probate for non-Muslims (the DIFC Wills and Probate Registry Rules).
 

Process

Generally, a Will made by a non-Muslim foreigner will be accepted by the Dubai Courts provided it fulfils UAE legal formalities, which may include being validly executed under UAE Law, the laws of their home jurisdiction or through the DIFC. In any event, in order to enforce a Will in Dubai it has to be validated by the Dubai Courts through a succession order.

Registration of a Will can take place before the Dubai Courts (Notary Public) or through the Abu Dhabi Judicial Department which registers Wills for Muslims as well as non-Muslims.  Non-Muslims can also register before the DIFC Wills & Probate Registry which is situated in the Dubai International Financial Centre, Dubai.
 

Conclusion

Although it might look like a straight forward and simple process, the proper drafting of a Will and following proper process is paramount in order to protect against invalidation of the Will on technicalities after your death, or to avoid delays in enforcement.  By then, the damage has been done and children may not be receiving the care and support they need and intended heirs may be struggling to get access to vital cash to support your funeral expenses.

Should you have any queries or need more information, please feel free to contact Michael Lunjevich (Partner, Head of Commercial & Property and DIFC licensed Wills draftsperson) or Philip Sequeira (Head of Property Regulatory) or your usual Hadef & Partners contact.

 
 

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the developing jurisdiction of the UAE.