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Middle East: DIFC launches wills and probate registry

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Non-Muslims satisfying various criteria can now register their wills at the Dubai International Financial Centre (DIFC) Wills & Probate Registry.

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Fiona McClafferty

The intention of this registry is to facilitate testamentary freedom for non-Muslims and to provide certainty and simplicity for non-Muslims owning assets in Dubai. Dubai will be the first Gulf jurisdiction to establish laws allowing non-Muslims to use their own succession law, following similar initiatives by Malaysia and other Asian countries. Due to the current perceived uncertainty regarding the devolution of a non-Muslim's assets (that is, whether Shari'a law or the law of the nationality of the deceased will be applied to the Dubai estate) the DIFC's own research has identified capital flight of AED3 billion ($817 million) from the Emirate. Wishing to reverse this flow and encourage investment into the Emirate, the Wills & Probate Registry has been set up.

The criteria for using the registry is that the testator (person writing the will) must have reached the UAE age of legal majority (21 years). But most importantly, the testator must not be Muslim. A declaration to this effect is made in the will, but this status will also be tested on death, for example to ascertain whether the deceased converted to Islam after making the will.

The testator must own assets in the Emirate of Dubai, but there is no residency requirement – that is, even non-Dubai residents can register a DIFC will. The assets dealt with under a DIFC will can be 'onshore' or free zone assets. However, those assets held in any other emirate, or outside the UAE, cannot be dealt with under a DIFC will.

It is important to ensure that the will is drawn up in line with the registry's legal requirements. Local legal advice should be sought to avoid the risk of the will being rejected by the registry. The process is that an appointment is booked online; the testator, the intended witness(es) and the guardian(s), if any, must all attend the appointment together. The registry will check the unsigned will to ensure it meets the legal requirements, that the witness is not a beneficiary and that guardianship appointments are appropriate under civil law and so on. Signing of the will takes place in the presence of a member of the registry team. The wills will be stored digitally and can only be accessed by the testator during his lifetime (unless express authority is provided to someone with power of attorney) but will be available to the beneficiaries on death.

There are no local death duties or forced heirship or inheritance laws associated with DIFC wills. However, even in the absence of local taxation, it is still important to consider whether foreign taxes or succession laws are applicable to the deceased's worldwide estate, including that in Dubai, and draft the will accordingly.

Fiona McClafferty (fmcclafferty@deloitte.com)

Deloitte

Tel: +971 (0) 4 506 4841

Website: www.deloitte.com/middleeast

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