Inheritance Law in the UAE

[Al Tamini]

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Inheritance Law in the UAE
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COMPANY PROFILE
Al Tamimi & Company, originally established in 1989, is today one of the leading law firms in the Arabian Gulf region.
It is the largest local, non-affiliated law firm in the United Arab Emirates with offices Dubai, Abu Dhabi, Sharjah and
Baghdad, and an associate office in Doha.
Al Tamimi & Company specialises in Banking & Finance, Corporate / Commercial and Communications, Information
Technology & Media, Intellectual Property, Litigation, Arbitration & Alternative Dispute Resolution, Maritime, Trade &
Insurance, Construction and Property Law.
An international team of high caliber lawyers ably serves clients from the United Kingdom, North America, Europe, the
United Arab Emirates and several other Arab countries. Each member of our team of professionals and qualified
administrative staff is fully committed to providing our clients with accurate, thorough and cost effective advice.
We pride ourselves on our complete knowledge of the laws and regulations applicable to our home jurisdiction and the
commercial community abroad. Within the U.A.E. we regularly confer with government ministries during the introduction
of new legislation and the ongoing amendment of internal regulations, relying on long established contacts in all
government departments.
The firm can assist multinational companies to establish operations in the U.A.E. independently, or in association with
local partners. Both our local clients, many of whom have business interests outside the United Arab Emirates, and
international companies, rely on our global perspective. We subscribe to the belief that the world of opportunity does not
recognize national boundaries.
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T
ABLE
O
F
C
ONTENTS
1
Introduction
............................................................................................................... 1
2
Whose estate will be wound up according to the Islamic Inheritance Law?
... 1
3
What constitutes a deceased’s estate?
................................................................... 1
4
Who is excluded from being an heir?
.................................................................... 2
5
Foreigners and the Islamic Law of Inheritance
...................................................... 2
6
Administration of foreigner’s wills
.......................................................................... 3
7
Duties of heirs at the time of death
........................................................................ 3
8
What if the deceased left a valid will or testament?
............................................. 3
9
Different categories of heirs and their inheritance
................................................ 3
10
What happens to the share of an inheritance if the heir is missing?
.................. 4
11
What are women’s inheritance rights under Shariá law?
..................................... 5
12
Waqf as an estate planning tool
.............................................................................. 5
13
Conclusion
................................................................................................................. 6
Cover photograph ‘Golden Inheritance’ Samuel P. De Leon © 2005
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Shar’ia Law on Inheritance
I
NTRODUCTION
Inheritance is the transfer of legal ownership of a deceased’s assets to his heirs; the legal basis for the law of
inheritance in the United Arab Emirates is found in Shariá. Shariá is the primary source of Islamic law and is
based mainly on the Quran and the Sunna (sayings of the Prophet Mohammed PBUH), which serves as a
complementary source to the Quran. Shariá is however not a codified law; it is an abstract form of law capable
of adaptations, development and further interpretation. A source of significant controversy both inside and
outside the Muslim community is the Islamic law of inheritance; the “law” is in fact a continuing process of the
interpretation of Qurantic rules and principles to form the complex “laws” of inheritance under Islam.
Under the UAE Civil Code, Federal Law No.2 of 1987 (“Code”), Article 17(1) provides: ‘Inheritance shall be
governed by the law of the deceased at the time of his death.’ Therefore, the law of domicile shall apply.
However, in relation to real property, as an exception, Article 17(5) specifically states that “The law of the UAE
shall apply to wills made by aliens disposing of their real property located in the State”. (Reference to the “State”
is a reference to the United Arab Emirates.)
Additionally, Article 1219(2) of the Code provides that inheritance issues and transfers of estates shall be subject
to the provisions of the Islamic Shariá and the laws passed giving effect thereto. With regard to wills specifically,
Article 1258 of the Code states that the provisions of the Islamic Shariá and the legislative provisions deriving
therefrom shall apply to wills.
W
HOSE
E
STATE WILL BE WOUND UP ACCORDING TO THE
I
SLAMIC
I
NHERITANCE
L
AW
?
All Muslims living in any country of the world can expect to have their estates wound up according to the Islamic
Inheritance Law. There are some scholars however who maintain that certain of the inheritance laws are
applicable only in Islamically- based legal systems and governments and that other jurisdictions do not provide
for the complete application of Islamic Law.
Faraidh
The Arabic word for the distribution process of assets after death according to Islamic Law is faraidh.
W
HAT CONSTITUTES A DECEASED
’
S ESTATE
?
According to Shariá, whatever a person owns at the time of his death whether it be property, money, bonds,
gold, shares or clothes falls into his estate. However, items that the deceased stole or acquired by breach of trust
while alive will not be included in his estate. Pensions provided by the government or the deceased’s employer
will be considered as an award and not as a part of the deceased’s estate. If the deceased had gifted something
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of which he had actual ownership before he died and had seen that the recipient possessed the gift before his
death, then this item is not included in the inheritance. However, had the deceased only said or put in writing
words to the effect, “I give this to you…” and the gift was not physically received by the recipient before the
deceased’s death, then this item will remain within the ownership of the deceased and will be included in his
estate upon his death. If the gift was given to the recipient during any illness of which the deceased died (referred
in Arabic as marad-ul-maut) and the deceased had also made him take it in his possession, then this act of giving
will fall under the rule governing a will. Furthermore any property that the deceased had mortgaged during his
lifetime but has failed to leave sufficient money or property in his estate to settle the debt, such property will not
form part of the estate either.
1 Maulana Ashraf Ali Thanvi, Bahishti Zewar, vol. 5, 60.
W
HO IS EXCLUDED FROM BEING AN HEIR
?
Islam has formulated a clear system of wealth distribution on the death of an individual. Heirs must be Muslim
and they cannot have willfully caused the death of a deceased. Furthermore all illegitimate and adopted
children are excluded from being heirs. If several relatives die in an accident they will usually be considered to
have died simultaneously and no inheritances will pass between them. An inheritance is usually only distributed
amongst living heirs and not their estates. When heirs that have gone missing before the death of the deceased
in circumstances where it has become impossible to know whether those heirs are alive or dead, Islamic law
provides that the heirs’ inheritances must be held in trust. If the missing heirs never return, the Muslim rulers
can declare those persons dead and the shares which had been held in trust for them, will be distributed to their
heirs.
When an heir of a deceased in still in utero at the time of the deceased’s death, the distribution of the inheritance
will only take place after the birth of the baby due to the fact that shares allocated to boys and girls differ. The
different categories of heirs and their inheritance will be looked at later on in the booklet.
F
OREIGNERS AND THE
I
SLAMIC
L
AW OF
I
NHERITANCE
Is a foreigner able to inherit immovable property?
Previously within the United Arab Emirates, only United Arab Emirates citizens or GCC nationals in certain
circumstances could own immovable property in the United Arab Emirates. However, recent developments
with respect to foreign ownership of land in Dubai have altered this position, and in May 2002, H.H General
Sheikh Mohammed bin Rashid announced that 100% freehold ownership of certain properties in Dubai was
available to all nationalities. No new law has been issued as of yet and it is still uncertain as to whether Shariá
law would apply to property owned by non- Muslims. We understand that a new law is currently being
contemplated in relation to personal affairs, divorce, inheritance and marriage in the UAE, which would apply
to non Muslim foreigners as well as Muslim foreigners and Muslim nationals in the UAE. Until then the Code
remains the leading authority.
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A
DMINISTRATION OF
F
OREIGNERS
’ W
ILLS
An application needs to be made for a grant of representation in the deceased’s country of domicile. Once
probate is obtained, it must be notarized, legalized and/or attested before it may be recognised by UAE
government authorities as authentic and valid. Upon recognition by the government authorities of the
deceased’s representatives and confirmation that the will may be distributed in accordance with the laws of the
country to which the deceased belonged, the trustees or executors would have full power to administer the
deceased’s estate in accordance with his wishes.
In the case of intestacy, a letter of administration will also need to be obtained from the country of domicile; this
also needs to be notorized, legalized and/or attested.
D
UTIES OF
H
EIRS AT THE
T
IME OF
D
EATH
All expenses incurred in bathing, shrouding and burying the deceased is to be paid out of the estate immediately
after death and all financial claims or debts owing by the deceased must be settled from the estate by the heirs.
W
HAT IF THE
D
ECEASED LEFT A
V
ALID
W
ILL OR
T
ESTAMENT
?
Because of the confusion surrounding inheritance issues for foreigners, the courts will have discretion as to
whether the laws of the country to which the deceased belonged are applied. If they are not, but the deceased
left a valid will or testament, one third of the balance of his estate must be liquidated and distributed in terms of
the said will or testament. The remaining two-thirds of the balance of the estate must be distributed amongst all
the heirs; this distribution to his heirs will be in accordance with fixed shares as prescribed by Shariá. In the
event that the deceased left no will and he was a Muslim, Shariá law would apply and any debt would be paid
prior to any other disbursement of property. The property would subsequently be divided according to Shariá
law’s different categories of heirs and their shares.
D
IFFERENT
C
ATEGORIES OF
H
EIRS AND THEIR
I
NHERITANCE
Dhawu’l-Fara’id
These are heirs who have a right to definite shares in assets left by the deceased e.g. father, grandfather, brother,
husband, wife, mother etc. The fixed shares are stated below:
The father’s share is one-sixth when the deceased leaves a son or a son’s son. However, if the deceased
is not survived by a son or grandson, his father will, in addition to this share (one-sixth), also get a share
of being ‘Asaba.’ (Asabaat includes relatives in whose line of relationship no female enters).
The grandfather’s share is like that of the father’s share. In relation to this, according to Imam Bukhari
and Imam Muslim, the presence of the father deprives brothers of their share in the inheritance. But this
is not the case for a grandfather. Abu Hanifa is also of the opinion that the presence of a grandfather
deprives the brother of his share in the inheritance. Also, the grandmother of the deceased has no share
in the presence of the father of the deceased. However, she has a share in the presence of the grandfather.
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The third set of heirs are uterine brothers ands sisters. They are entitled to one-sixth if their number is
one, and one-third if they if they are more than one.
The husband’s share is half the property of the deceased wife if she has no children. But if she has
children, then it is one-quarter.
As for the wife, if her spouse dies childless she is entitled to one-fourth. If, on the other hand, he has a
child or children, her share is reduced to one-eighth.
If the deceased leaves behind a daughter, her share is half. However, if he has more than one daughter,
then they are entitled to two-thirds.
If the deceased has a male child(ren) in addition to the daughter(s), then the daughter(s) would be treated
as ‘Asaba’ and the male child(ren) would be entitled to double what the female child(ren) receives. As
for granddaughters, they stand on the same level as daughters. If, for instance, there is a situation where
the deceased is survived by a daughter and also by one or more granddaughters, they would be entitled
to one-sixth. Moreover, if a son survives the deceased, the granddaughter is not entitled to any share.
However, if he is survived by grandsons and granddaughters, they would be treated as ‘Asaba’ and the
male grandchild would be entitled to double that of the female grandchild.
Furthermore, if the paternal grandmother or maternal grandmother survives the deceased, she is entitled
to one-sixth. The maternal grandmother is deprived of her share if the mother of the deceased is alive,
and if the father is alive, the paternal grandmother is deprived of this share.
Asaba
Asaba are relatives who only receive their shares once the heirs in the abovementioned Dhawu’l-Fara’id group
have received their entitlement. Women do not enter into this calculation of the line of the relationship and
there are no fixed shares in this category either. i.e. sons are the first to inherit the residue of the estate and
daughters are entitled to half of the shares that are awarded to the sons.
Dhaw-ul Arham
The members of this category include relatives who are related through the female heirs; they include, for
example, a daughter’s son or daughter, a son of the daughter of a son and maternal grandfather.
W
HAT HAPPENS TO THE SHARE OF AN INHERITANCE IF THE HEIR IS MISSING
?
If an heir was missing before the death of the deceased and it is not possible to determine whether the missing
person is alive or dead, Islamic law provides that his inheritance should be held in trust in order that he may
receive his share when he is found or returns. If he does not return, and the time limit for waiting terminates
and the designated Muslim ruler declares this person as dead in accordance with the rules set by Shariá, then
the share held in trust for the missing person will be distributed among the heirs of the deceased. It must be
noted that it will not be distributed among the heirs of the missing person. Only the property of the missing
person will be distributed among his heirs.
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W
HAT ARE WOMEN
’
S INHERITANCE RIGHTS UNDER
S
HARIÁ LAW
?
In Islam, the Quran clearly states that women have the right to inherit for themselves; the percentage of the
inheritance usually depends on various factors. Women also have certain rights:
1.
Any gift given to a woman by her fiance prior to marriage is hers and her husband has no legal right to it
after marriage.
2.
At the time of marriage, a Muslim woman is entitled to receive a marriage gift from her husband and it is
usually but not necessarily in the form of money. The marriage gift is known as the mahar and this is her
property.
3.
Even if the wife is rich, she is not required to spend any money on her household; the responsibility for
her food, clothing, housing, medication and recreation rests on her husband.
4.
Any income the wife earns or any profit she gains from her investments are hers alone.
5.
In the case of divorce, if any part of the mahar has not been paid to her, the husband will be required to
pay it to her immediately.
6.
A divorced woman is entitled to financial assistance for her maintenance (which includes food, clothing,
etc.) from her husband during her waiting period.
Waqf as an Estate Planning Tool
In other jurisdictions trusts have been used successfully to preserve estates for the benefit of successive
generations. As trusts are not clearly defined in the Federal Law of the United Arab Emirates or in Islamic Law,
the closest and most appropriate tool found in Shariá is the waqf. The principle of perpetuity is a unique
characteristic of the Islamic waqf. In Islam, perpetuity in waqf means that once a property is dedicated as a
waqf, it remains so until “the day of judgment”. There are two basic types of waqf; the first type is waqf khairee
which means a dedication in perpetuity of the capital and income of the property to religious or charitable
purposes; the second type of waqf is waqf khas or waqf ahlee which means a dedication in perpetuity of the
capital and income of property to a member(s) of the family. In the United Arab Emirates the Ministry of Justice
administers waqf property.
The basic procedures that need to be followed in forming a waqf in the UAE are:
1.
If the property in question is land, a certificate is required from the Land Department of the relevant
emirate. The land should be free from any restrictions restraining the owner from using or transferring the
land.
2.
The waqif (trustee) must request the Shariá’a Court to register the land in question as being held under the
family or ahlee waqf.
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3. Once the land is registered this will signify that ownership has been directly transferred. One condition is that
the registration of land under waqf must be completed during the founder’s lifetime. If this task is carried
out at the time of his death, it will no longer be waqf but rather a will.
4. In the case of a company, for example, if the trustee wishes to put all the revenues of the company in waqf,
he must ensure that all the partners or shareholders, depending on the legal structure of the company,
mutually agree and that the company’s assets are not subject to any mortgage and that there are no
restrictions binding or disagreements between the parties.
C
ONCLUSION
As this publication is only meant to be a brief introduction to the main principles of inheritance law and waqf
under Shariá Law, it is recommended that the reader consult a lawyer with expertise in this field or a religious
scholar who must be entitled to give rulings in inheritance matters, if you have any queries regarding inheritance,
wills and succession according to Islamic Law.
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