It's something none of us wants to think about. But sorting out a will and guardianship documentation is just one of those things that as parents we have to do here in the UAE, especially if we are living far away from family in other countries. There are some laws and customs unique to the region that may shock those of us from other nations, but that can be prepared for with the right documentation.
So we took a deep breath, put on our big girl pants and got the lowdown on this tricky topic from Cynthia Trench of Cynthia Trench and associates. If you're a mum or dad living in the UAE, we suggest that you do too...
What could happen if one or both parents passes away in the UAE?
Guardianship is provided for under the UAE Federal Personal Status Law which follows Shari’ah. Shari’ah law states that the father is the always the main guardian. This means that he has full legal control and this is a very different situation to countries which applies ‘Common Law’. In the UAE the mother may be a ‘Custodian’ until a son reaches 11 and a daughter reaches 13, but this does not grant her legal rights to control any monies or assets in the children’s names. Being custodian means that she should obtain consent from the guardian before travelling with the children, but this only arises if there is a dispute with regard to her custodianship rights. In the event of your husband’s death Shari’ah Law states that Guardianship of the child will then be passed to the paternal grandfather. This means that, as a mother you will not have the legal right to make key decisions for your child unless you have the father-in-law’s approval. Furthermore, should both parents die and no Will is prepared, the Shari’ah Law principles apply by default and dictate who is appointed as guardian.
I have a Will in my own country, is this not deemed valid in the UAE?
Presently the judges of the Personal Status Courts in all the Emirates apply Shari’ah Law and ignore any Foreign Wills.
I had a ‘Shari’ah Compliant Will’ drawn up, is this not valid?
Be careful with firms stating that they are giving you a ‘Shari’ah Compliant Will’. Wills just translated into Arabic and notarised do not make them Shari’ah Compliant. Ultimately it is highly likely that Shari’ah law will be applied, regardless of what is stated in your Will because such intentions would go against the precepts of Shari’ah or indeed the provisions of the Personal Status Law.
How can I ensure my Permanent Guardianship wishes are legally upheld?
It’s highly recommended that you take good legal advice and register a DIFC Will. Not doing this could prove distressing and involve lengthy and costly appeals. The DIFC Will and Probate (WPR) issued the WPR laws on 1 May 2015 and allows non-Muslims in Dubai and Ras Al Khaimah (which signed a bi-lateral MOU with DIFC) to pass on their assets to whomever they wish and appoint guardians for their children (under the age of 21). This is a first for the MENA region and offers clarity of law, rules and processes, not forgetting peace of mind. Ultimately, a DIFC Will ensures that your wishes regarding Guardianship and Inheritance will be fully and legally respected.
How is a DIFC Will valid in the UAE?
The DIFC Courts operate on a common-law system and so their rulings provide legal certainty that your DIFC Will be upheld. By an MOU signed between the DIFC and Dubai Courts, all DIFC Judgments are upheld by the Dubai Courts.
What steps should I take to ensure Permanent Guardianship in a Will?
DIFC offers a Guardian-only Will or a Full Will in this regard. It is important that a father also prepares a Will to ensure that the mother of his children is made Permanent Guardian and Custodian. Here are the steps:
1. Take legal advice first on how it should be drawn up.
2. Fill in the form available from your legal counsel which will establish key details of yourself as the Testator, the Executor(s), the Guardian(s) and Beneficiaries.
3. Once the Will is drafted and finalised then book an appointment with the DIFC registry .
4. On the day of your appointment bring along the execution copy of your Will, your original passport or some other form of ID like your Emirates ID.
5. For mirror Wills both you and your spouse must be present. Beneficiaries don’t need to be present.
6. Two witnesses are required. T&A will act as one witness for you and the other will be the Registrar.
7. The Registrar will go through and read out the Will to you to make sure you understand it.
8. After signing, the Registrar will keep the original Will and you will receive a stamped copy.
It is advisable to seek the advice of a qualified lawyer registered with the Government of Dubai Legal Affairs Department to ensure that your DIFC Full Will or DIFC Guardianship-only Will is valid and upheld.