What are the changes to inheritance in the UAE?

Previously, all assets in the UAE, for expats and Emiratis without a DIFC Will have been governed by Sharia Law, which is the law of the UAE but the new laws announced on the 7^th November 2020 are changing this. In the future, expats will be able to have the inheritance rules of their home country applied instead and this applies to non-Muslims and Muslims alike. This is a significant change.

However there is one major exception, not covered by the new laws, is the ownership of property. All property in the UAE will still be subject to distribution under Sharia law unless a Will is in place. At present only non- Muslims are permitted to write full common law Wills under DIFC Rules.

What is meant by home country inheritance rules?

The information so far refers to the individual’s  country of citizenship, so  basically the passport an expat holds. There are cases where people have more than one passport and while there has been no confirmation on this point,it is most likely that the passport used for the UAE residency visa is the one that would be considered.

Are DIFC Wills still required?

I would absolutely say that without a doubt this is essential.

Guardianship. One of the main reasons people require a DIFC Will  is to specify permanent guardians for their children should both parents die. Without a valid Will in place, a decision will be made by a court that may not be in line with your wishes. This could result in your children going into government care.

Home country Wills. The new legislation only relates to assets that you hold in the UAE and if you have assets elsewhere, it is advisable to make a Will to ensure that these are distributed as you wish according to your specifications.

Forced Heirship Regime

Typically most country’s inheritance laws apply for the standard distribution of assets to spouse and then children which in the majority of cases is preferred. However many European countries (for example Switzerland and France ) have an inheritance system referred to as forced heirship. This is when the distribution of assets when you pass away is determined by the law of your home country and cannot be superseded or changed despite what an individual desires. In this case your home country law certainly may not be what you wanted. This is definitely something to consider when debating the value of a DIFC Will.

Clarity of instructions for probate

At present on death UAE bank accounts are frozen and cannot be accessed (even if held in joint names ) until the deceased’s assets are divided and distributed . This can take months or even in some cases years. Having a Will in place will makes sure that the rules of probate are correctly followed and that assets are properly and quickly distributed.

Soma Gardi is the founding partner of SG Legal Consultants FZC, a specialised niche firm providing a bespoke service for clients requiring a DIFC Will. Please contact soma@sglegalconsultants.com for any further information.

The registration appointment will take place virtually over a video conference call. The link will be sent by the DIFC Wills   Registry via email. The Testator and the two witnesses will need to be present on the registration call. They can all be in the same location if necessary or in separate places as long as they have the devices required to complete the registration.

STEP 2

The DIFC Wills Registry portal is fully automated so the Testator and witnesses will receive email reminders of the registration appointment with the video conference link via email for the three days before the scheduled appointment.

STEP 3

On the day of registration the Testator and witnesses must ensure that they have a laptop/ PC with audio and video capability AND a touch screen device (such as an iphone or ipad) as this will be required for the electronic signatures required at the time of registration. Please note that if the Testator and witnesses are together in one location the registration call can be done from one laptop/PC BUT each individual will require their own touch screen device for the electronic signature.

STEP 4

On the day and time specified for the registration appointment the Testator needs to open the email from the DIFC Wills Registry and click on the link sent. This will start the virtual registration appointment. At the start of the appointment the Testator and each witness will be asked to verify their identities by presenting their passports and EIDs in front of the camera on their devices.

STEP 5

The DIFC Wills Registry Compliance Officers will then proceed to read out the contents of the Will to the Testator in relation to the clauses concerning the Executors, Beneficiaries and Guardians ( if applicable) in order to confirm testamentary intention.

STEP 6

Once Testamentary intention is confirmed the Compliance Officer conducting the registration will share the QR code for electronic signature of the Will. The Testator and witnesses need to open the cameras on their touch screen devices and scan the code shared on the Compliance Officer’s screen. This is their electronic signature ID.  Each individual will have a separate user name and password. To complete the registration the Testator and witnesses will need to sign electronically using their finger on their touch screen device.

STEP 7

Once the Will is signed, witnessed and registered it is automatically sent to the account that made the booking and payment. If the booking was done through the lawyer’s account the Will is available for 30 minutes ONLY following the registration to share with the client.

There is also an option for the Testator to download the Will even if he/she has not done the booking. An encrypted email which is password protected will be sent to the Testator’s email so the Will can be downloaded. However this only happens once the Will has been downloaded on to the DIFC wills Registry portal and can take up to a few hours.

The DIFC Wills Registry is always available to assist in the case of any difficulties. Their email ID is WillsInfo@difccourts.ae

86. Guardians

(1) A Testator who has parental responsibility for a minor child who habitually resides with the Testator in the United Arab Emirates may appoint in accordance with the applicable law of the child a Guardian or Guardians of the child but subject always to the laws of the UAE.

(2) The guardianship shall, subject to that law, only take effect if there is no other parent or Guardian of the child alive at the date of the Testator’s death.

(3) After the Testator’s death, the Guardian shall notify the Registrar in writing stating whether he accepts the appointment or not and if he accepts he shall confirm that he will act in accordance with the applicable law and that he submits to the jurisdiction of the DIFC Courts.

(4) Subject to compliance with Sub-Rules (1) and (3), the Court shall make an order substantially in the form attached.

(5) Nothing in these Rules shall prevent the Court appointing a different Guardian for the child in accordance with the applicable law.

(6) No appointment of a Guardian shall be valid if such appointment would be contrary to the law and public order of the UAE.

(7) The Guardian shall on the appointment taking effect have parental responsibility for the child.

(8) “Parental responsibility” means all the rights, duties, powers, responsibilities and authority which under the laws of the UAE a father has in relation to the child and his property and includes the right to remove the child from the UAE and the DIFC.

As stated under section 86 (subsection 2) of the DIFC Wills and Probate Registry Rules- The guardianship shall, subject to that law, only take effect if there is no other parent or Guardian of the child alive at the date of the Testator’s death.

To comply with section 86 (subsection 2) requirement, the exclusion of the other parent’s guardianship rights must be supported by any of the following documents:

a. Death Certificate of the other parent;
b. Court Judgment granting the Testator or Testatrix the custody and guardianship rights;
c. Signed and Notarized Amicable Divorce Settlement Agreement (including a clause/s specifically giving custody and guardianship rights to the Testator or Testatrix); or
d. If the other parent’s whereabout is unknown, a dated and signed letter by the Testator or Testatrix addressed to the DIFC Courts Wills    Service Centre stating the same. The letter must include a statement of truth.

Soma Gardi is the founding partner of SG Legal Consultants FZE. Please contact soma@sglegalconsultants.com for any further information

THE MAIN OBJECTIVE IS TO MAKE CLIENT BOOKINGS MORE EFFICIENT AND EASIER TO MANAGE

Why now?

As the DIFC Wills Registry was established later than the DIFC Courts, in May 2015, it has always maintained a separate website. From the outset the aim has been to incorporate ALL of the DIFC Courts services, which include the Wills Registry and by upgrading the website this allows all the services to be unified and to work under one system and one server.

It is also important to note that the new website will comply with government guidelines, case and invoice filing and allow quarterly reviews to be conducted more efficiently and quickly as all data will be stored on one server.

How has the DIFC Wills Registry website changed?

There are no notable differences to content, however, the homepage and layout are slightly different. Primarily the main difference is that the system is now fully automated with no option of manual intervention by the DIFC Wills Registry team, in terms of appointment booking.

How does this impact the client and lawyer?

There are a number of advantages that will benefit the Testator when booking a registration appointment.

With the upgraded website, lawyers will have the option of reserving a slot on behalf of their client  under the “quick appointment” option . The lawyer or the client has three working days prior to the appointment date to complete the will data and finalise the payment. In this manner the appointment can be confirmed with the client, payment made and the information data stored. The other advantage is that if the appointment slot is not actioned in the time limit given the slot will automatically become available and offered to another lawyer or client who may be trying to book a slot without the need to contact the Wills Registry Compliance team which is the case presently.

As a frequent user of the DIFC Wills Registry website I welcome this upgrade and these  changes and look forward to navigating my clients to a more seamless and efficient experience .

Soma Gardi is the founding partner of SG Legal Consultants FZC, a specialised niche firm providing a bespoke service for clients requiring a DIFC Will. Please contact soma@sglegalconsultants.com for any further information.

In line with the UAE Government initiatives and effort to slow the spread of the Coronavirus COVID-19 infections, the DIFC Wills Service Centre will still be operational but will adhere to a work-from-home policy.

All will registrations will be done over the video conferencing until further notice. The Testator and two witnesses will be required to sign the will at their location during a video conferencing call with an Authorised officer form DIFC Wills Service.

If you choose to go ahead with the video conferencing registration, please be aware of the following requirements:

• You must also have two witnesses present who are able to sign the will as witnesses. The witnesses should not be beneficiaries or guardians in the will of the spouses of beneficiaries or guardians in the will. Your executors may act as your witnesses if they are eligible. Your witnesses must be over the age of 21 years and they must show their photographic ID during the video conferencing registration.
• No beneficiaries of the will or spouses of beneficiaries of the will should be present in the room with you during the video conferencing call
• Please ensure that you have a laptop with a stable internet connection. Mobile (3G or 4G) internet connections are not accepted
• Please ensure that you also have another touch screen device on hand to complete your electronic signature during the call using either a stylus pen or just your finger e.g. an apple or android touch screen mobile phone or iPad.
• Please note that all video conferencing registrations will be recorded so by booking this appointment you are agreeing to be recorded

Before you proceed with the booking of your appointment, please make sure that you have the following set of documents available to upload on our system:

1. Draft will
2. Clear copy of your passport (and Emirates ID if applicable)
3. Clear copy of your witnesses’ ID’s ( passport or any other form of ID front and back if using Emirates ID)
4. Signed and dated Guardianship Witness Statements (if applicable)

• Geographical Jurisdiction:- Unlike the former position, DIFC Wills Centre now registers wills of non-Muslim which give or dispose of assets of a testator located within the UAE, and anywhere in the world. The geographic barriers restricting the location of assets to the Emirates of Dubai and Ras Al Khaimah, UAE is no longer applicable under rule 11 of the New DIFC WRP Rules.
• However, it should be noted that:- The financial assets wills, property wills, and business owners’ wills shall continue to be valid only for UAE estates; and guardianship wills and guardianship provisions mentioned in the testator’s wills shall continue to be valid only for minors residing in the Emirates of Dubai and Ras Al Khaimah.
• Changes to Witness Requirements:- The New DIFC WPR Rules now require at least two witnesses of the age of majority to be physically or virtually present in front of the Registrar of DIFC Courts at the time of registration. It should be noted that a beneficiary, spouse of a beneficiary, or a guardian, spouse of a guardian is not permitted to witness a will.
• Electronic-format Wills:- Pursuant to the amendment of rule 10 (9) DIFC WRP Rules the Registrar is no longer required to hold on to the hard copy of a will executed by the testator. According to the New DIFC WPR Rules, upon the successful registration of a valid will, the Registrar will retain a copy in electronic format whereas the testator is required to keep the hard copy. Following January 2020, all hard copies will be permanently destroyed and a certified copy of the will conserved in electronic-format by DIFC Wills Centre will be issued to the testator upon a written request being submitted to the Registrar.

The aim of this development by the DIFC is to provide more options to non- Muslim residents in the UAE who wish to acquire assets in other Emirates as well as protecting their assets overseas. However, Testators should be mindful about obtaining local advice in the country that they have assets particularly when it comes to enforcing the Will when it comes to probate.

Disclaimer:

The article above is for informational purposes only and not for the purposes of providing any form of legal advice.