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Sharia law and the importance of last wills for UK expats in the UAE

About The Author

Maxi Kussatz (Writer)

Maxi graduated from the University of Birmingham in 2013, where she studied Law and Business. Having trained with the German Legal Consultancy firm Meyer-Reumann and Partners in Abu Dhabi, Maxi is now returning to the UK to study for here LPC at University of Law Cambridge. Maxi's interests lie in EU Law, International Law, and Intellectual Property.

The facts andfigures about UK last wills and testaments

Have you ever searched online for “how to make a will”? If so, you will have been faced with fascinating contraptions such as the ‘Last will and testament kit’ from Amazon, a twelve-step wiki how list and various websites trying to sell will and testament outlines.

But how important is it really to have a will? The Wills Act 1837 is one of the older statutes still used in day-to-day British life. It lays out strict requirements for the signature, necessary witnesses and rules concerning alterations of a will and when considered carefully makes it clearthat a person’s last wishes scribbled down on a piece of paper will generally not be allowed to stand as a last will and testament and will be declared void.

In spite of this harsh reality almost 70 per cent of UK adults have notwritten a will.

Nevertheless, the ship is not about to sink simply because a last will has not been created. In English common law, the Rules of Intestacy apply when a person dies without leaving a valid will or where a will does not dispose of all property. The rules of intestacy lay out specifically who inherits what and when. Generally speaking, only married or civil partners, as well as some other close relative such as children and grandchildren can inherit under the rules of intestacy.   

This however, is much more complex when residing in a country governed by Sharia law.

The reality about Sharia law

According to Rehman, Sharia is the “moral code and religious law of a prophetic religion”, which we generally associate with Islam. Sharia law governs many aspects of everyday life in Muslim countries as well as matters of politics and crime. Although different levels of interpretation and application of Sharia can be found throughout the Muslim communities, Coulson says that in the “strictest and most historically coherent definition it is considered the infallible law of God”—as opposed to the human interpretation of the laws”.

The United Arab Emirates’ (UAE) legal system is based on civil law principles as well as Sharia law. Sharia courts in the UAE have exclusive jurisdiction to hear family disputes, including matters involving divorce, inheritances, child custody, child abuse and guardianship of minors. Hence, Sharia becomes impossible to dismiss in matters of inheritances, even for non-Muslim expats.

This, in my opinion, is very controversial. The government of the UAE frequently expresses its wish to be part of the world market. It opens up its doors for workers and tourists from all around its world and is with its various free zones and commercial hubs on a path to become a player in the big leagues. On the other hand, the UAE is very reluctant to adjust their laws and cultural practices to accommodate the change that there are so eagerly awaiting. This is especially obvious in relation to criminal legal matters concerning tourists and other issue such as inheritance laws. So the question is, will one work without changing the other? Probably not! A good example of this can be observed locally when comparing the difference between the Emirates of Dubai and Abu Dhabi. Whereas, Dubai is currently holding the 17th rank on the Traveller’s Choice awards, Abu Dhabi in contrast is regarded as the strict and more traditional neighbour. During the last couple of years, especially after the financial crisis hit Dubai in 2007/2008, much has changed to accommodate the growing tourist industry, which these days is one of the most important governmental strategies to maintain the flow of foreign cash into the emirate.

Lightening restrictions on inheritance within the UAE might therefore be beneficial, as it would allow expats to invest within the country without fearing that their assets will be subject to strict inheritance rules. 

Issues in Sharia Inheritance

To date, only between 10 and 20 per cent of UK expats in the UAE have a valid will. Sharia inheritance is complex, as it differs according to which family member dies. Consequently, expatriates are being warned that it is essential to create a will, as without one, assets will be split according to Sharia inheritance law.  

In the Sharia inheritance system, male heirs receive favoured treatment, meaning that property may be passed on to the extended family in a way that is not common in the western society.

A wife who has children will qualify for only one-eighth of the estate and, without a will or estate planning in place, this distribution will be applied automatically.

Ola Salem, The National

It is essential to understand that even assets shared between a husband and a wife will be frozen by the authorities until the courts determine the inheritance.

Furthermore, UAE courts may also make decisions concerning custody issues based on Sharia and may determine, in the case of death of the parents, who will take care of the surviving children, if not explicitly stated in the will. 

UAE Civil Transaction Code vs. UK Rules of Intestacy

Article 17(1) of the UAE Civil Transactions Code, states that “inheritance shall be governed by the law of the deceased at the time of his death”. This would suggest that if in possession of a valid will, your assets will automatically be dispersed in accordance to your wishes. Article 17(5) however, declares that “the law of the United Arab Emirates shall apply to wills made by aliens disposing of their real property located in the State”, implicating that real estate could legally be distributed under Sharia law, whether a will has been drawn up or not.

Generally it is therefore advised, to have as little property and assets within the UAE as possible. Property can be held through offshore companies, so that when the owner dies the shares will be inherited rather than the property itself. This also gives a certain amount of protection to the family from possible debts concerning that property. Furthermore, it is custom amongst expats to keep as little money as possible in bank accounts within the UAE, as these may be frozen after death, even if jointly owned. 

In England and Whales, as mentioned above, should the deceased leave no valid will, the splitting of the assets will occur through the Rules of Intestacy. All assets (including property) up to 250,000 pounds, as well as all their personal possessions whatever their value will go to the husband, wife or civil partner. The remainder of the estate will be shared equally between the husband, wife or civil partner and any surviving children. Furthermore, if you have a joint account with the deceased, what’s in it automatically passes to you. No grant of representation is necessary.

What can be done?

To avoid having to abide by Sharia law, a will must be drawn up and attested by the UK embassy. To avoid overseeing minor issues, expats are advised to:

  • Consciously think about what assets and property they have to leave and whom they want to leave it to (the more detailed the account, the easier and faster inheritance issues can be resolved);
  • Make an appointment with a licensed estate planner or lawyer, preferably one with knowledge of UK law;
  • Gather all relevant documents needed, including passport copies, contact details of executors and proof of all your assets inside and outside of the UAE;
  • Drawn up the Document in accordance with UK law (The Wills Act 1837) and have it attested by the UK embassy or consulate;
  • Have the attested document translated by an authorised translator into Arabic;
  • Attest the translated version of the will by the notary public in the emirate of residence.

A peak at the flip side: Sharia wills in UK law

Subject to a lot of debate, the Law Society issued a new practice note for solicitors on the Sharia succession rules and how Sharia wills should be drafted. The media has made a meal out of the claim that “Islamic law is adopted by British legal chiefs” and that “[and] is to be effectively enshrined in the British legal system”. Even Kris Hopkins, the Conservative Member for Keighley asked the government for confirmation that there was “only one law in this country”.  

Much can be said in support or opposition of the Law Society’s publication, but for our intensive purposes the important aspect to focus on is the possibility of choosing to bequest one’s assets according to Sharia Rules rules. If the intentions of a deceased are not illegally and not wholly unreasonable, it is general consensus that these wishes should be upheld. Therefore, if a will following the Sharia succession rules is signed and witnessed in accordance with the Wills Act 1837, it will be deemed as valid.

The Law Society’s commentary on the publication in my opinion captures very well what should be of essence. We should focus on the fact that “there is a wide variety of spiritual, religious and cultural beliefs within our population” and we should support all members of our society within the boundaries of the law.

Conclusion

In the UAE, it is unfortunately more problematic than simply signing your will in front of two witnesses.   “If you want the right money in the right hands at the right time, the starting point is a properly executed last will and testament, without which your dependants may be in dire straits for some considerable time before assets are released.”

Most importantly, it is essential to realise that as an expat, one is not simply exempt for Sharia law and to inform oneself of the implications of Sharia. Furthermore, it is advisable to source the help of a professional who has knowledge of both legal systems, as many complications can arise if details are overlooked. Lastly, even if a will is expertly drawn up, it is advisable to keep the assets and property in the UAE to a minimum and to resort to having an extra bank account back in the UK.

Further Reading

Coulson, N. J. (2011), A history of Islamic law, Aldine, ISBN 978-1412818551

‘Making a Will’, The Law Society: 2014, <http://www.lawsociety.org.uk/for-the-public/common-legal-issues/making-a-will/>.

Rehman, J. (2007), The sharia, Islamic family laws and international human rights law: Examining the theory and practice of polygamy and talaq, International Journal of Law, Policy and the Family, 21(1), pp 108-127

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Tagged: Family Law, International Law, Sharia Law, United Arab Emirates

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