Inheritance Under Muslim Law: Framework of Sharia Law
Posted: Mar 18, 2020
1. What law governs the inheritance on the demise of UAE national or an expatriate?
The principal source of law of inheritance in UAE is Shariah and on the basis of which several Federal Laws have been promulgated. In addition, main laws governing succession are Federal Law Number 5 of 1985 concerning the Civil Transactions Code (the Civil Law) and Federal Law Number 28 of 2005 regarding the Personal Status Law (the Personal Law).Article 1(2) of the Personal Law states that the law will be applicable on all the citizens of UAE unless a non-Muslim foreign national have special provisions according to their community, which empowers the foreigner to have a choice of the law and avoid application of Shariah. Simultaneously, Article 17 of the Civil Law states that the inheritance will be governed by the law of the testator at the time of his death.
2. How the law of inheritance in UAE differs from other jurisdictions?The law of inheritance in UAE is extensive and accommodate everyone irrespective of their religion and nationality. The succession for Muslim is governed by the Law of Shariah, whereas, the non-Muslim is authorized to choose the law of their home country. The Law of Shariah is capable of alteration and further interpretation.
Further, being a civil law jurisdiction, the impact of precedents is null as compared to other common law jurisdictions. As opposed to other authorities, UAE does not follow the "right of survivorship" wherein the jointly-owned property will be given to the surviving owner, and the UAE courts have exclusive authority to decide upon such matters.
3. Under the law of inheritance, who holds the right to claim the deceased's estate?
The heirs and descendants have the right to claim the estate of the deceased according to the Shariah Law for Muslims. Whereas, beneficiaries of the will can claim the estate in case of non-Muslims if there is a legally certified will. In case of a deceased Muslim, the estate will only be transferred to those who qualify as an heir under principles of Shariah.
The primary step for courts in the event of the death of a Muslim is to determine the heirs and reconfirm it through two male witnesses along with documentary proof such as marriage or birth certificates. According to the principles of Shariah, spouse, parents, children, grandchildren, siblings, grandparents (paternal), uncles/aunts, nephews/nieces are considered as heirs to the estate. It further imposes several conditions on who can become an heir mentioned as below:
- Any illegitimate children and adopted children will not be considered as heirs;
- Non-Muslim cannot benefit from the estate of a Muslim;
- A person committing murder to benefit from the estate will be ineligible to claim the estate;
- Divorced women cannot claim from ex-husband's estate unless they are in "iddat" period.
4. How will the estate be divided among the heirs of a deceased Muslim under the law?
If a Muslim dies, the transferable rights will include all the rights pertaining to the property, usufruct and any other dependent rights like outstanding debts. It shall also cover the obligations of the deceased which can be paid off from his estate. Further, whatever is residue, post payment of funeral obligations, shall be divided among the heirs. Following are the ways under which the property will be distributed:
A. One half (1/2) of the property will be given to:
- The husband, if the wife has no successor;
- The daughter, if the deceased has no other children;
- The daughter of the son or of his descendants, if the deceased has a child or a grandchild higher in degree with her;
- The sister, if she has no brother or sister, a successor of the deceased, father or grandfather;
- Consanguine sister, if she has no brother or germane sister or brother, a successor of deceased, father or grandfather.
B. One-fourth of the property will be given to:
- The husband, if the wife has a descendant;
- The wife, if the husband has no descendant.
C. One eight of the property will be given to:
- The wife, if the husband has a successor.
D. Two-third of the property will be given to:
- 2 or more daughters, if deceased has no son;
- Two or more daughters of son, or hi successors, of the deceased, has no son, grandson of the same degree;
- 2 or more germane sisters, if there is no germane brother, successor, father or grandfather;
- 2 or more consanguine sister, if there is no consanguine brother, a germane brother or sister, a successor, father or grandfather.
E. One-third of the property will be given to:
- The mother, if the deceased has no successor or if there is no one else to succeed;
- 2 or more of mother's children, if there is no successor or father or grandfather, the property shall be divided equally;
- The paternal grandfather, if he concurs the estate of germane or consanguine brother and in the absence of forced heirs;
F. One-sixth of the property will be given to:
- The father upon concurring with succeeding descendent;
- The paternal grandfather, if the deceased has a successor, if the forced heir is present, if his share is less than one-sixth or one-third of the reminder or if nothing is residual post taking his forced share;
- Mother, along with successor of deceased or with 2 or more brother and sisters;
- Grandmother, if she is not ineligible for an inheritance;
5. How will the estate be divided among the heirs of a deceased non-Muslim foreign national under the law?
The Personal Law in UAE permits the non-Muslim to draft a will and divide the property according to their will. However, if a foreign national dies without a will, the Civil Law and the Personal Law will allow the courts to distribute the assets of the deceased according to the principles of Shariah.
According to Article 17(1) of the Civil Law, the inheritance will be regulated by the law of the deceased during the time of his death, whereas, Article 17(5) of the Civil Law states that the UAE law will be applicable on non-Muslim expatriate wills regarding the property located in the country. In addition to this, Article 1(2) of the Personal Law states that the law will be applicable to non-Muslim unless he elects otherwise. Thus, if a non-Muslim foreign national die in the state are leaving the real property or other assets in the country, his home country law can be applicable, and his heirs can request the court accordingly. However, there is a restriction on dealing with the assets for property located in UAE.
6. Do heirs of a deceased foreign national has the right to choose the law under which the estate shall be divided?
As mentioned before, the foreign nationals are empowered to choose the law of the deceased during the time of his death, reference Article 17 (1) of Civil Law and Article 1(2) of the Personal Law.
The heirs must at the first appearance in the court, should request the court for application of home country law of the deceased. Further to this, Article 276 of the Personal Law, the heirs seeking inheritance shall submit the following documents:
- The death certificate, duly legalized;
- Last domicile of the deceased;
- Will of the deceased, duly authorized.
Whereas, if the heirs have a judgment from a court of competent jurisdiction, they shall submit the same (duly attested, notarized and translated in Arabic) for execution.
Although the Personal Law allows the request for application of home country law, the Law does not expressly set aside the civil code, which leads to a level of uncertainty as to whether a non-Muslim will be considered under Shariah Law or under home country law.
7. What will be status of shares owned by either the UAE national or a foreign expatriate in mainland or a free zone company upon their death?
Upon the death of a partner or a shareholder in a company established within UAE, if relevant documents are not present, the shares will be divided according to the Shariah Law. However, if in a limited liability company (LLC) a local shareholder dies, in the absence of a shareholders agreement or any specific clause in the memorandum of association, the shares will be given to his heirs. Whereas, in case of a sole proprietorship, joint ventures, or free zone companies, the transfer or succession will be according to the local laws for probate which might not be according to the will of the deceased or his heirs. Since UAE does not recognize the right of survivorship; the shares will not be passed automatically to the rest of the shareholders or the family members. It is essential for companies to have either shareholder's agreement or wills in place to decide the transfer of their shares in the company according to their wish, which is in harmony with the existing shareholders as well.
8. Do Shariah Law recognize wills for Muslims?
The Law of Shariah does recognize wills drafted by Muslim only up to a certain extent. It is similar to that of a non-Muslim will with following prerequisites:
- The testator must be over the age of 21 years;
- He/she should be of sound mind;
- He/she must appoint a trustee and a guardian for minor children;
- The will must be duly notarized.
The only restriction which applies to will drafted by Muslim is that it can only be upon 1/3rd share of the deceased's estate and the estate shall not be gifted to any of the heirs. However, if the value of the estate is more than 1/3rd of the estate, the courts must approve it upon seeking written consent from the heirs.
9. Can a foreign non-Muslim expatriate draft and legalize his will in the country? What law is applicable to the wills drafted by non-Muslim foreign national?
A will drafted by a non-Muslim is recognized by the local courts upon the death of the testator, only if the will is duly notarized by the Public Notary in UAE. The will shall be translated in Arabic and must provide all the details pertaining to the assets of the testator along with bank account details. The will must be registered before the Judicial Department of the relevant Emirate. Importantly, Dubai International Financial Centre (DIFC) has established a "DIFC wills and probate registry" which will provide a platform for non-Muslims owning assets in Dubai to dispose of according to their wish. Further, the testator can opt for his home country law, while determining the division of assets, upon his death.
10. What is law pertaining to the joint account on the demise of one co-signatory? Can the surviving co-signatory dispose of all the proceeds from such account?
According to Article 379 of the Federal Law, Number 18 of 1993 concerning the Commercial Transactions Law (the Commercial Law), a joint account is an account owned equally by co-signatories unless they specify a different proportion. It is a common misconception among the residents that upon the death of one co-signatory the sole account holder can dispose of the proceeds from the bank account. However, as mentioned under Article 379 (4) of the Commercial Law, upon the death of co-signatory, the bank must be notified within 10 days from the date of his death. Upon such notification, the bank will freeze the account until the successors are appointed. The court will accordingly divide the proceeds of the bank account either according to the proportion of the deceased in the account, and if the account holders did not mention the proportion, the half of the proceeds would be given to the heirs.
11. What will happen to the jointly-owned property of husband and wife, upon the demise of the either?
The Personal Law and the Civil Law is vague and ambiguous with regards to the property owned by the foreign national. Thus, it is always prudent to have a registered will within the country. UAE does not have a concept of "right of survivorship" wherein, the surviving owner becomes the complete owner of the property, thus, in case of a jointly-owned property by foreign national along with his wife, the local courts have the right to decide upon the matter and divide the estate accordingly.
12. How can foreign nationals protect their family and assets?
It is advisable to foreign nationals to appoint a lawyer specialized in drafting wills to protect their family and assets from future eventualities. UAE is promulgating new laws in order to accommodate the registration of non-Muslim wills, such as DIFC wills and probate registry through which the testator can dispose of their assets according to his wish. The procedure is relatively simple and efficient for non-Muslims to pass their estate upon their demise freely.
Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.