Blog on the Provisions of Wills for
Muslims and Endowment ( Waqf ) in UAE Law
Among the matters that a person seeks to achieve in order to benefit him after his death, in a manner that pleases his Lord, is the will. A will is the allocation of a portion of wealth or its proceeds as a charitable donation to non-heirs after death, whether for relatives or for charitable causes. Sometimes, a person may also make a bequest to endow part of his wealth for the purposes of charity and goodness.
In this Blog, we will explore the characteristics, elements, and general conditions of both endowment ( waqf ) and will, as well as the endowment added to after death.
First : The nature of the will and its characteristics
The will : ـIt is when a person voluntarily and with full legal capacity donates a portion of their wealth during their lifetime to another person or entity, with the condition that the donation and gift will be executed after their death.”
The will is also defined in UAE law as an act concerning the estate, to be applied after the death of the testator.”
Islam encourages a person to bequeath a portion of their wealth after death to close relatives who are not heirs, in accordance with the meaning of the saying of Allah Almighty “ Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous “
Allah, the Almighty, has specified and detailed in the Quran the share of each heir from the inheritance through the verses of inheritance. It is narrated from the Noble Prophet ﷺ { Indeed, Allah, Blessed and Exalted, has granted each rightful person their due, so there is no bequest for an heir }.
The will is considered a part of Allah’s provision for the servant in this world and a form of righteous deeds for which they are rewarded after death. In this code, we will focus on the will and endowment in the context of wills for Muslims, explaining the regulations, provisions, and conditions of the will as stated in Decree No. 52 of 2023 from the Personal Status Law. We will begin by clarifying the will in general.
” The Elements of the Will and the Conditions for Its Validity “
The will has elements and conditions for its validity. The elements of the will are the testator, the beneficiary, the subject of the bequest, and the formulation. Among the conditions for its validity are that the testator must be capable of making a donation, must act voluntarily and willingly, must own the property being bequeathed, and the bequest must be within one-third of the estate. We will elaborate on some of these elements and conditions as follows :
Conditions for the Testator :
The testator must be fully competent, must own the property being bequeathed, and must not be indebted with a debt that exhausts the estate.
Conditions for the Beneficiary :
- If the beneficiary is identified, it is required that they be present at the time of the will, either actually or reasonably expected to be present.
- If the beneficiary is not identified, it is required that they be present at the time of the testator’s death, either actually or reasonably expected to be present.
- The beneficiary must not be an heir of the testator, except in two cases : (1) if the remaining adult heirs permit it, in which case it is valid for the portion permitted by them, or (2) if it is necessary for a significant interest approved by the court.
- The beneficiary must not be the one who killed the testator.
Conditions for the Subject of the Bequest :
It must be capable of ownership or transfer after death, and it must be something that can be beneficial for use.
The Share of the Will :
The will must be within one-third of the total estate. If the bequest exceeds one-third, two cases arise :
- If the testator has heirs, the will is only valid in two cases:
- First case : The heirs approve it after the testator’s death.
- Second case : The person granting the approval is fully competent and not under any legal restriction at the time of approval.
- If the testator has no heirs ,they are allowed to bequeath more than one-third.
Cases of Invalidity of the Will
Despite the fulfillment of the conditions for the will as previously stated, there are cases in which the will becomes invalid, including :
- The testator revoking the will explicitly or implicitly.
- The beneficiary’s death during the testator’s lifetime.
- The beneficiary rejecting the will during the testator’s lifetime or after their death.
- The beneficiary killing the testator, whether the beneficiary is the principal perpetrator, an accomplice, or the cause of the death, provided the act was committed when the beneficiary was of sound mind and of legal age, whether the killing occurred before or after the will.
- The destruction of the specified subject of the bequest or its entitlement by another party.
- The apostasy of the testator or the beneficiary from Islam, unless they return to it.
Secondly : The Endowment ( Waqf ), its nature, and validity
Endowment (Waqf) : It is the act of holding property from being disposed of. The endowed property cannot be sold, donated, or gifted for the duration of the endowment. However, only its income or proceeds may be donated and spent on the purposes specified by the waqif. It is a form of charitable giving, where money or benefits are dedicated for causes of goodness and righteousness.
The endowment, as defined by UAE law, is the conversion of the benefit alone or the conversion of the benefit along with the preservation of the principal endowed asset, ensuring it is kept from loss.
The endowment may be established during the person’s lifetime, in which case it is considered a donation. It can also be made to take effect after death, in which case it is considered a will, and the conditions and provisions applicable to wills will apply. The endowment is also governed by the provisions and regulations of Federal Law No. 5 of 2018 concerning endowments and its regulations.
” Types of Endowments “
- Atomic ( Family ) Endowment : This is the endowment of property for family members and descendants.
A clarification regarding this type of endowment is as follows: During a person’s lifetime, they may endow any of their properties to any individual, even if that individual is someone who will inherit from them after their death. The endowment continues after death. However, in the case of a will for an endowment ( meaning the person has made a bequest to take effect after death ), they are not allowed to bequeath the endowment to their heirs, as the Islamic rule ” No bequest to heirs ” applies in this case. If they do so, it is subject to the approval of the heirs.
The family endowment is structured in tiers among the descendants entitled to the endowment. If one of the beneficiaries dies or is excluded from the endowment, their share passes to their descendants, If the beneficiary has no descendants, their share is divided among their siblings, and if none exist, it passes to the next tier of descendants. If more descendants are born into a tier ” their children “, they will gain entitlement to the endowment from the date of their birth. When the descendants of the endower become extinct, the endowment terminates, and the income from the endowment is transferred to the relevant authorities to be used for general charitable purposes.
It is important to note that a person may bequeath an endowment (an endowment to take effect after death) to their descendants, provided that those descendants are not heirs. This means the endowment can be for the descendants of an heir, regardless of how distant the lineage. If the descendants become extinct, the endowed property will then be transferred to a charitable endowment.
- Charitable Endowment : This is an endowment dedicated to the general public or to a specific entity or project within the realm of charity.
- Mixed Endowment : This is an endowment whose proceeds are allocated to both general charitable purposes and the descendants.
” Characteristics of Endowment “
- Perpetual Endowment : This is an endowment where the waqif explicitly states that the endowment is to be perpetual, or if the waqif does not specify a time limit for it.
- Temporary Endowment : This is an endowment where the waqif specifies a set duration for the endowment.
” Pillars and Conditions of Endowment “
The elements for the validity of an endowment are the endower ( waqif ), the endowed property, the beneficiary, and the formula. Several conditions must also be met for the endowment to be valid, including.
Conditions of the Endower :
- The endower must be fully competent, the owner of the property to be endowed, or have the right to endow it.
- The endower should not be in debt with an existing debt prior to the endowment.
- The endowment should not be made with the intention of evading debt, the right of preemption, or circumventing inheritance laws.
Conditions of the Beneficiary :
- Acceptance by the beneficiary is required, unless the endowment is made to an unspecified charitable entity, or one where acceptance is not possible or in the case of a familial endowment.
- The beneficiary must be an entity legally eligible to receive the endowment.
- The endowment must be made to a purpose that exists or is likely to exist in the future.
Conditions of the Endowed Property :
- The property must be one that can be legally used or enjoyed.
- The property must be owned by the endower, or they must have the legal right to dispose of it.
- The property must not be consumed entirely by use.
- The property must not be mortgaged or subject to seizure under a court ruling or administrative decision.
Thirdly : The procedural matters to be considered when making an endowment through a will are as follows :
- The will should be officially registered with the competent court in the emirate where the endower resides to ensure its legitimacy and smooth execution. A request must be submitted to the judge to issue a certificate of the will, and if the will involves specific and identified assets, the judge will require proof of ownership of these assets.
- After registering the will with the competent courts, the endowment can be recorded. Additionally, the will that specifies charitable purposes during the endower’s lifetime can be registered with the Endowment Foundation and the Minor’s Funds Administration.
- It is advisable for the endower to appoint a manager for the endowment, choosing a person with the necessary competence, integrity, and expertise to manage and distribute its income.
” Applications from Practical Experience “
Given the above, and considering that the will is one of the key pillars of posthumous donations, taking precedence over inheritance, there are also certain mandatory wills, such as those made for grandchildren regarding their deceased father’s share of the inheritance.
We mention one of the practical applications from the reality of lawsuits, perhaps the most prominent of which was against the heirs of one of the deceased under a will recommended by the deceased. The heirs disputed the validity of the Will and denied in it their ” deceased ” inheritance.
The court upheld the validity of the will based on the signed will document from the deceased testator, which was notarized by the notary public, without referring to the witness testimony that confirmed the will’s authenticity. The court relied solely on the written will, as it stood on its own to prove its validity.
Accordingly, the court decided to appoint an expert to review the case and the total estate of the deceased testator in order to determine whether the land, along with the building constructed on it, fell within the limits of one-third of the testator’s estate. The expert’s report submitted to the court concluded that the land on which the property subject to the will was built was less than one-third of the deceased’s estate. Therefore, the will was valid, as it remained within the one-third limit of the estate.
Therefore, the first-instance court stated in its reasoning that it was clear that the beneficiary was not one of the heirs recognized by law, and that the will was written and signed by the deceased testator. As a result, the court ruled to validate the will and enforce it against the deceased’s heirs. The court also issued a directive to the Sharia inheritance court to remove the piece of land subject to the will from the deceased’s estate and instructed the Land and Property Department to register the land and the building on it in the name of the beneficiary. This ruling was upheld by both the Court of Appeal and the Court of Cassation, who adopted the same reasoning.
There are also many cases related to obligatory wills, as stipulated by Article 272 of the Personal Status Law, which requires a will within one-third of the estate of a deceased person – whether by law or otherwise – if they have grandchildren from a son or daughter who passed away before or with them. The article mandates an obligatory will for these grandchildren, regardless of their generation. Many disputes arise regarding the proof of the will, its amount, and its validity in the face of those who deny it.
One of these cases involved the death of an estate owner, leaving behind a mother, father, two daughters, a son, and three daughters from a deceased father during the lifetime of the deceased estate owner. In this case, the three granddaughters are entitled to an obligatory will equivalent to their father’s share in the estate, had he been alive at the time of the estate owner’s death, provided that it is within one-third of the estate. However, the deceased did not make a will for these granddaughters, although he left a voluntary will to donate one-sixth of the estate for the construction of a mosque.
However, one of the deceased’s sons contested the granddaughters’ right to the will, arguing that their father was no longer alive, which led to a legal claim to establish the obligatory will.
It was established that the son had passed away during his father’s lifetime, and the relationship between the grandchildren and their father was verified. The estate was also inventoried, and one-third of it was allocated. It was found that the total of both the obligatory and voluntary wills fell within the limits of one-third of the estate. Accordingly, the trial court ruled to establish and enforce the obligatory will for the granddaughters, equivalent to their father’s share in the estate had he been alive, and this decision was upheld by the appellate court.
It is noteworthy that when both an obligatory will and a voluntary will coexist, the obligatory will takes precedence. This means that if the combined value of both wills exceeds one-third of the estate, the obligatory will is fulfilled first, followed by the voluntary will within the remaining one-third, unless the heirs agree to allow the amount exceeding one-third.
” In conclusion “
The goal of a will and endowment is to ensure the sustainability of benefit and goodness after the death of the testator, in accordance with precise legal controls. The rulings related to the will and endowment enhance the values of charity and benevolence within a comprehensive legal framework. Therefore, it is advisable to organize wills and endowments with precision according to legal provisions to ensure smooth execution and the achievement of the intended objectives after death. This includes documentation and registration with the competent authorities, to solidify these noble acts and protect them from future disputes, ensuring that the good impact extends to future generations.
Abdul Latif Al-Jasmi Law Firm and Legal Consultants offers a team of elite lawyers and consultants to respond to your inquiries related to wills and endowments, and to assist in drafting wills, determining shares, and their amounts.