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Abu Dhabi, UAEWednesday 20 February 2019

Drawing up a will in the UAE can come with a hefty bill

While drafting and registering your last testament in the UAE can be costly, legal experts says it’s a necessary expense

Illustration by Mathew Kurian 
Illustration by Mathew Kurian 

For expatriates in the UAE, the laws and procedures related to wills can be daunting and unclear. The country’s inheritance laws are based on Sharia, which prescribes a fixed share allocation of assets. Previously, if non-Muslims preferred to circumvent this allocation, they had to request the law of their home country be applied in accordance with the UAE’s personal status law.

Now non-Muslims can draw up and register wills for their assets in the UAE that follow common law. This was made possible with developments such as the establishment of the DIFC Wills and Probate Registry (now called the DIFC Wills Service Centre) in 2015 and the Non-Muslim Wills & Probates Office at the Abu Dhabi Judicial Department (ADJD) in 2017.

But the path is still not clear-cut. The cost to draft a will varies between Dh1,200 and Dh6,000, depending on whether it is online or with a professional legal firm. The cost to notarise or register a will starts from as little as Dh950 at the ADJD to as much as Dh15,000 at DIFC. There are different types of wills, too, from guardianship wills to full wills.

Figuring out which is suitable for your needs requites a careful comparison of the options. The one thing you should not do, say legal experts, is nothing.

“The practical process of trying to uphold a foreign will in respect of local assets is where the issues arise,” says Tasleem Sayani, a partner at James Berry & Associates in Dubai, who specialises in wills and inheritance. “It’s quite a lengthy process in the local courts, it can be quite expensive and, of course, whilst that process is being undertaken, the assets are generally frozen, which may cause financial hardship to the surviving family.

“Now that we have local alternatives, those are the advisable options to consider for clients who want to make sure their assets are going to pass in accordance with their wishes."

Registering a will

There are three ways for non-Muslims to register a will in the UAE. First, Dubai Courts have allowed wills to be attested by a notary public in Dubai since 2010. Second, at the DIFC Wills Service, which only covers assets in Dubai and Ras al Khaimah, wills are registered and probate claims are handled through the DIFC Courts. The third option is at the ADJD, which allows non-Muslims from any emirate to register their wills and covers assets countrywide.

The Dubai Courts and ADJD are essentially both notary services, allowing people to authenticate their wills. A single will costs Dh2,200 in Dubai and Dh950 in Abu Dhabi. The document must also be translated into Arabic, which adds translation costs.

Devanand Mahadeva, who heads the inheritance and personal lines practice of the Goodwins law firm in Abu Dhabi and Dubai, says the benefits are the comparably low cost and the fact the notarised will can be accepted anywhere in the UAE and internationally.

The probate process, meaning the proving and enforcement of the will after death, has also become relatively straightforward, Mr Mahadeva says.

In Dubai, it is done at the Personal Status Court and involves certain paperwork, such as applying for a succession certificate. In Abu Dhabi, it involves even less paperwork, he adds.

“Many of our clients now prefer Abu Dhabi because the probate process is easier and … much cheaper,” says Mr Mahadeva, who has practised law in the UAE for 18 years.

However, the outcome of these cases is ultimately up to the judge at the local courts, which means an individual’s wishes might not necessarily be upheld.

Mr Mahadeva operates in the DIFC Courts as well, but says he usually recommends that option for more complicated cases, such as an expatriate from a country that follows forced heirship laws (for example, France, Spain, Italy and Scotland).

Devanand Mahadeva of Goodwins law firm in Abu Dhabi and Dubai, says the local courts can be a more economical option for registering a will. Khushnum Bhandari / The National
Devanand Mahadeva of Goodwins law firm in Abu Dhabi and Dubai, says the local courts can be a more economical option for registering a will. Khushnum Bhandari / The National

A full service

The DIFC Wills Service is an end-to-end service that deals with probate matters through DIFC Courts, rather than just will registration. A will must first be drafted with a DIFC-approved wills draftsman and those fees are paid separately. The Courts follow a set of detailed rules, promising judicial certainty, as well as speed and efficiency.

The service offers five different types of wills: a full will, property will, guardianship will, financial assets will and business owners will.

A full will, which encompasses all assets and guardianship provisions, costs Dh10,000 with mirror wills for a husband and wife costing Dh15,000. A property will, which can apply to up to five properties in Dubai and Ras al Khaimah, costs Dh7,500. At Dh5,000 each are: a guardianship will, which appoints both interim and permanent guardians for children; a financial assets will, which applies specifically to bank and brokerage accounts; and a business owners will, which applies to free zone or UAE onshore companies in Dubai or Ras al Khaimah.

Keren Bobker, an independent financial adviser and senior partner with Holborn Assets in Dubai, says while a DIFC will is much more expensive than the notary option, it provides a certainty that the will is implemented as per the deceased’s wishes.

“There is a significant cost in registering a will with the DIFC Wills Service Centre, but this is the only way that non-Muslims can guarantee that Sharia will not apply to their assets,” Ms. Bobker says. “So if you are buying property for several million dirhams, it is a sensible course of action.”

Amna Al Owais, chief executive and registrar of DIFC Courts, says the fees are nominal compared to the value proposition offered, including that it is a full-fledged service in English and in a free zone that follows common law.

“Properties in Dubai are at least Dh1 million to Dh2m, school fees are at least Dh30,000. It’s peanuts in comparison,” says Ms Al Owais. “The fee is really nothing when you compare it with the importance of what you’re trying to protect.”

Since the service began, the centre has registered more than 4,400 wills, says Ms Al Owais. Around 10 per cent of those registered are from clients living abroad that have assets in Dubai or Ras al Khaimah.

In 2018 alone, the DIFC Courts processed more than a dozen probate orders, according to Nour Hineidi, deputy registrar at DIFC Courts. A DIFC Courts spokesperson told The National that the process can be as quick as six to eight weeks.

Drafting a will

To draft a will in the UAE, options range from professional law offices to step-by-step websites. Law firms typically charge between Dh3,000 and Dh6,500, while online services start at Dh1,300.

The DIFC Wills Service publishes a list of registered wills draftsmen, which includes 87 lawyers representing more than 80 law firms, based in the UAE and overseas, according to Ms Hineidi. Those who lack the requisite knowledge are required to take a training course offered by the Dispute Resolution Authority’s Academy of Law before being registered.

Websites, such as legalinz.com, offer a three-step process of filling in an online form, reviewing a draft will prepared by a lawyer and finalising the will through signing/registration. Such services advertise themselves as “affordable and convenient."

But affordability and convenience cannot take the place of experience and qualifications, warns Mr Mahadeva.

“There are quite a few will writers in town. They don’t do probate work, so they don’t understand how it gets implemented or used,” he says. “As we do both sides of it, we look at everything together.”

Sharia-compliant wills

Will drafting services also offer “Sharia-compliant” wills for Muslims. “In a Sharia will, Sharia will apply strictly to two-thirds of their estate,” explains Nita Maru, managing partner of TWS Legal Consultants in Dubai. “However, they can nominate a beneficiary of their choice to inherit one-third of their estate.”

Guardianship

If a person does not have significant assets in the UAE, but wants to protect their children in case of death, a guardianship document should be drafted. Kids Initiative in Dubai, which runs workshops on first aid training and family safeguarding and protection, provides a document template and recommends getting it notarised for around Dh2,500.

Without any document at all, Sharia applies, which means guardianship would automatically go to the eldest male member on the husband’s side. If it is not notarised, it could be taken into account in court as a letter of wishes, but has no legal bearing. This might be a problem if there are any family disputes or other issues, says Humphrey Ddagirira, a client relationship manager at Kids Initiative.

“We emphasise heavily that when you get the document from us, you do take it the notary public, whether you believe there’s going to be a family dispute or not,” Mr Ddagirira adds.

Updated: February 4, 2019 01:15 PM

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