Misconceptions and ambiguity still exists among the expatriate community when it comes to the legalities involved in drawing up a last will & testament, whilst residing in the UAE.
UAE succession laws dictate how an estate is distributed upon death and also determine the guardianship procedure by default. This process works very well in the local communities of the UAE, however a lack of knowledge amongst the expatriate community can often leave non national residents unprepared and ignorant of the consequences, should the worst occur.
Like most legal systems, the UAE does not distinguish between a person’s religion or nationality, and it is the responsibility of each person to ensure that current valid documentation is available in circumstances where a resident is incapacitated or deceased. In this particular article we would like to focus on the importance of understanding the Will and Guardianship procedures. If you currently reside in the UAE as an expat, and your family is also in the country with you, then it’s absolutely critical that you understand the countries ‘Guardianship’ laws.
It is important to understand that the death of just one parent renders a child orphan under Islamic law. The UAE take their responsibilities to orphaned children incredibly seriously, and in the event that a clear guardian or custodian for the child or children is not available the children will be placed in the care of the Women and Children’s shelter facility, until a suitable guardian is recognized and formalities can be finalized.
It is a myth, that the law enforcement departments of the UAE are eager to take children from the loving care of their mothers or fathers. It is rare that a mother is not left responsible for the care of her children and usually occurs in cases where a family dispute is prevalent or that there is a distinct lack of documentation, stating the deceased father’s intentions and preferences. Interestingly it is not just the loss of the father that can cause problems to resident parents, should the mother pass away, the father is not necessarily guaranteed custodianship. According to Sharia Law, a woman must be available in the home to care for the children. The children could conceivably be sent to a female figure on either side of the family, be it the mother’s mother, the father’s mother, or a sister on either side of the family. Again it is important to acknowledge that these rulings usually have little negative impact on local communities here, where families often live in close proximity, and share responsibilities for the care and financial implications incurred by extended family.
To ensure that your intentions are communicated effectively when it comes to the care of your children, should the unthinkable happen, I urge parents to make sure they have any form of a guardianship document in place. This guardianship document allows parents to nominate two residents here in the UAE to care for their child/children during the interim period following an emergency situation, until permanent guardians can be appointed.
A temporary guardianship document is important for two reasons:
1) Custodianship: If something were to happen to the father, according to Sharia Law the wife is not actually the first custodian of her children. Custodianship actually falls to the oldest living blood male relative on the paternal side (father’s side).
2) Another reason why guardianship is so important is that if something were to happen to both parents, it is important to have nominated two residents who are based in the UAE, to be appointed temporary guardians for an interim period until permanent guardianship can be implemented.
There are three types of Guardianship documentation that you can put in place to ensure that your family is safeguarded. These are a Civil Agreement, DIFC Will and a UAE Will legalized by the Dubai Court. The Guardianship process can be time-consuming and starting off the process with a simple Civil Agreement can ensure peace of mind. Let us give you a better understanding of a Civil Agreement. Having reviewed several cases where unfortunate events had occurred, it appeared that if some form of document or process was in place to state the deceased or incapacitated intentions for their children, and in most cases this was enough to allow a child to be cared for by the nominated guardian. It is important to know that this is not a legal binding document. Finsbury Associates offers this document to be drafted free of charge, as part of their corporate social responsibility. Guardianship is one of the most important decisions you will have to make in your lifetime, if you have the time and money we can direct you to a reputable legal expert.
Another question we get asked often, can you update your guardianship clause in your will? and the answer is yes. Any update to a will may be considered a registration of a new will. Changing or adding a Guardian for your children would advocate that you update your will, and this change needs to be noted by the registry. Changing your address or the personal details (contacts) of existing parties to the will, namely of executors or guardians, do not necessitate a modification to the will, they are dealt with as an administrative update to the existing case file. These types of changes, however, should be communicated to the registry as soon as they occur, allowing the registry to update the file. This will avoid any delays or hindrances in the subsequent probate process.
The most important part of the guardianship process is how you distribute this document once completed, regardless of which process you choose. The idea behind this document is for it to be physically presented by the guardians nominated, in case of an emergency. In consequence, it’s important to give physical copies to both guardians nominated, a copy to the nursery or school that your child or children attend, and also to the Human Resources Department of the company that sponsors your visa, as they would be the first ones to find out if an unfortunate event had occurred.
Taking professional advice to ensure your unique situation is catered for is the best step you can take towards ensuring you and your family have a safe and secure future in the UAE. Finsbury Associates will be happy to refer you to a regulated professional legal partner in the UAE.