- Legal Articles
- Ask Elhais
March 23, 2016|
Although Article 17/1 of the Civil Code of the UAE provides that it is the law of the deceased that shall govern the inheritance at the time of his death, Article 17(5) of the same law provided that UAE law shall apply to wills made by aliens disposing of their real property located in the State. Moreover, Article 1/2 of the UAE Personal Status Law states that "the provisions of the law shall apply to non-UAE nationals unless the foreigner elects to apply his or her personal status law".
It could be understood then that when a foreigner dies in the UAE leaving assets in the country, his or her home country law could be applied based on Article 17/1 and that his or her heirs can request the court for the application of their own country law as well. However, Article 17/5 puts a limitation to the freedom of disposition of assets by a foreigner with regard to his or her real properties located in the country.
Inheritance rules in the UAE always has an element of judicial discretion. Judges are not bound by precedents or decisions made by other courts and higher courts in a similar case. Judges make their decisions in accordance with the dictates of their conscience and the principles of Shariah. There are a number of cases decided by the courts applying Shariah and UAE law to wills made by foreigners disposing of their assets here. But there are also cases decided by the courts granting the application of the foreigner's home country law.
One such case is Cassation Case No. 3/1998. This is a case of a Hindu man who died leaving a will naming his son as the only heir. Upon his death, the deceased's mother obtained an order from the Court of First Instance and later the Court of Appeals for the division of the deceased assets. The court ordered that one-sixth of the asset will go to the mother, one-eighth to the wife and the remainder of the asset to the son. The wife of the deceased filed an application to the High Court to nullify the order of division of the asset and to give the entire estate to the son who was named as the sole heir in the will in accordance with the law of India.
The court of cassation overruled the orders of the lower courts. It pointed out that the case was for the enforcement of the will and not for the amendment of division of assets as what the lower courts propounded. The court clarified that the will should not be affected by the Personal Status rule that the testator may not pass on property to any of his or her heirs without the consent of the other heirs. Since the deceased and his family are not UAE nationals and they are not Muslims, then the law that they have chosen to apply should be applied. While this decision allowed non-Muslim residents to apply their home country law with regard to their wills, such laws will not be applied if they offend public policy. In this case, it does not offend public policy.
If courts in many cases applied Sharia law in matters of will of a non-Muslim, non-UAE national - why still make a will?
Regardless of this fact, it is always advisable to have a will rather than no will at all to document testator's intentions. It gives comfort that something has been done to protect one's family in case of any eventuality, even though it does not give the guarantee which one expect.
In a judgment rendered by the Court of Cassation in case No. 90/2006, if the heirs was between non-Muslims regardless of their religion (Christian, Jew or Hindu), deceased law can be applied in case of death even if the distribution of the deceased law differ from Sharia law. Sharia rules and principles are not breached as far as none of the parties are UAE national or a foreign Muslim.
It is important to note here that the judgment contradict the official interpretation of Law No. 28 of 2005 which considered that applying foreign law shall not contradict Sharia principles.
Copyright © of this article is retained by the author and/or other copyright owners. We explicitly grant you permission to download a copy, without any alteration, of this article for personal non-commercial research or study, without prior permission or any charge. This article can be utilized on your website or for marketing, however, we grant you permission to host this article on your website and no other rights. This content should not be altered in any way or sold commercially in any format without prior permission of the copyright holder. During reference of this article, full biographic details entailing the name of the author, his designation, the institute and the publishing date of the article shall be provided.
Your email address will not be published. Required fields are marked *
I owe the success of my case to Dr. Hassan's diligent approach. He remained focused, put me at ease and always went the extra mile. Dr. Hassan tirelessly put my case in the best possible light and I cannot thank him enough. I would highly recommend Dr. Hassan - I am grateful to him from the bottom of my heart.
Dr. Hassan Elhais is among the best legal consultants I have ever worked with. He has an amazing ability to reduce complex issues into a simple concept that non-legal people can understand. He consistently develops innovative litigation strategies that help us to achieve our ultimate legal goals.
...the extraordinary effort that has been exerted by the staff, and we specially thank Dr. Hassan Mohsen Alhais. Wishing your continues success & excellence...
I believe everyone should recognize what a difference Dr. Hassan Elhais work has made to people's lives; and especially to our family's life, because we will remain forever grateful to each and every one of his team.
Dr. Hassan Elhais never fears cases that involve exposure and he always gives me his honest assessment of our chances of success, which is invaluable to me.
He aided us not only in providing legal advice but also in all legal issues that required a long term strategic approach to achieve most favorable and optimum outcomes he provided us with high level of professional service.
Dr. Hassan Elhais is a responsible, reputable counsel who operates to high levels of service.
Dr Hassan Elhais is responsive, thorough and creative with his advice, and is a valued advisor and legal consultant.
Regardless of the complexity of the matter I know Dr. Hassan Elhais will consider not only legal strategy but also business practicalities in providing advice and litigation options.
I recommend Dr. Hassan Elhais to anyone who says 'I'm in legal trouble'. I was extremely satisfied with the high standard of his work. He has always been there when I have needed him and I refer all my clients, family and friends to him/his firm.
Dr. Hassan Elhais was very professional and he listened to my needs. He was very prompt, efficient and always kept me informed. Dr. Hassan Elhais's service was excellent and I would definitely recommend him to friends and colleagues.