Decree No. (25) of
2023
Establishing the
Probate Court in
the Emirate of Dubai[1]
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We, Mohammed bin Rashid Al Maktoum, Ruler of Dubai,
After
perusal of:
Federal Law No. (5) of 1985
Issuing the Civil Code of the United Arab Emirates and its amendments;
Federal Law No. (28) of 2005
Concerning Family Affairs and its amendments;
Federal Law by Decree No.
(42) of 2022 Issuing the Civil Procedure Code;
Law No. (21) of 2015
Concerning Judicial Fees of the Dubai Courts and its amendments;
Law No. (13) of 2016
Concerning the Judicial Authorities in the Emirate of Dubai and its amendments;
Law No. (14) of 2017
Regulating Endowments and Gifts in the Emirate of Dubai;
Law No. (9) of 2020
Regulating Family Property in the Emirate of Dubai and its amendments;
Law No. (13) of 2020
Regulating Expert Witness Work before the Judicial Authorities in the Emirate
of Dubai;
Law No. (17) of 2022
Concerning the Endowment and Minors’ Trust Foundation in Dubai;
Decree No. (23) of 2020 Regulating
the Sale by Heirs of Residential Real Property in the Emirate of Dubai;
Decree No. (35) of 2021
Designating the Head of the Local Judiciary in the Emirate of Dubai for the
Purposes of Implementing Federal Legislation;
Resolution No. (8) of 2021
Forming a Special Tribunal;
Resolution No. (3) 2020
Forming the Committee for Temporary Assignment of Judges of the Dubai Courts; and
Resolution No. (6) of 2022
Establishing the Probate Court,
Do hereby issue this Decree.
The following words and
expressions, wherever mentioned in this Decree, will have the meaning indicated
opposite each of them unless the context implies otherwise:
|
Emirate: |
The
Emirate of Dubai. |
|
Ruler: |
His
Highness the Ruler of Dubai. |
|
Judicial
Council: |
The
Judicial Council of the Emirate. |
|
Courts: |
The
Dubai Courts, including the Court of Cassation, the Court of Appeal, the
Courts of First Instance, and any other court to be established therein. |
|
Probate
Court: |
The
probate court established pursuant to this Decree. |
|
Estate: |
Any
property or financial rights left by a deceased person. |
|
Inheritance and Estate
Application: |
Any
application related to an inheritance or the beneficiaries thereof; or to the
inventory or liquidation of an Estate or the division of its property among
the Heirs. |
|
Estate
Claim: |
Any
dispute arising amongst the Heirs or between the Heirs and other parties in
respect of Inheritance or Estate Applications. This includes civil,
commercial, or real property claims; family lawsuits; and claims related to
Gifts and Wills arising in respect of, or in connection with, rights to an
inheritance or Estate. |
|
Lawsuit
for Subdivision of Property Co-owned in Undivided Shares: |
A
claim for the termination of co-ownership of undivided shares in Real Property
or movables devolved to Heirs through inheritance, and for division of the
same amongst the Heirs or between the Heirs and other parties. |
|
Reporting
Judge: |
A
Judge assigned to consider Inheritance and Estate Applications and applications
for subdivision of property co-owned in undivided shares amongst the Heirs or
between the Heirs and other parties; to issue the relevant orders and
decisions; and to register, prepare, and manage before the Probate Court Estate
Claims and Lawsuits for Subdivision of Property Co-owned in Undivided Shares,
in accordance with the provisions of this Decree, the resolutions issued in
pursuance hereof, and other legislation in force in the Emirate. |
Pursuant to this Decree, a
court named the “Probate Court” is established at the Courts.
The principal seat of the
Probate Court will be at the Courts.
The Probate Court will have
the following objectives:
1. to maintain social
and family ties, and protect them from disputes that may arise over inheritance
and Estates;
2. to consolidate the
claims and applications related to, or arising out of, inheritance or Estates
into a single lawsuit before one judicial authority instead of being heard by
multiple judicial authorities as a result of applying the rules of
jurisdiction;
3. to simplify
litigation proceedings in, and ensure expeditious determination of, Estate
Claims and Lawsuits for Subdivision of Property Co-owned in Undivided Shares
without prejudice to the requirements of prompt justice;
4. to serve as a specialised
judicial body capable of determining Estate Claims, Lawsuits for Subdivision of
Property Co-owned in Undivided Shares, and their ancillary claims and
applications; and
5. to implement
flexible procedures in Estate Claims and Lawsuits for Subdivision of Property Co-owned
in Undivided Shares which require innovative judicial solutions.
a.
Without prejudice to the rules of jurisdiction of the
federal and local judiciary in the United Arab Emirates, the Probate Court will
have the exclusive jurisdiction to hear and determine Estate Claims, Lawsuits
for Subdivision of Property Co-owned in Undivided Shares, and all claims and
applications arising out of them.
b.
The Probate Court will not have jurisdiction to hear and
determine the following claims:
1. criminal lawsuits and labour claims arising in connection
with Inheritance or Estate Applications;
2. Estate Claims deemed under the jurisdiction of the Special
Tribunals formed in the Emirate pursuant to a resolution of the Ruler; and
3. claims filed by partners in companies whose ownership
devolves to Heirs.
c.
The claims mentioned to in sub-paragraph (b)(2) of this
Article may, pursuant to a resolution of the Ruler and upon the recommendation
of the Chairman of the Judicial Council, be referred to the Probate Court.
Litigation before the Probate
Court will be conducted in two levels, in accordance with the rules and
requirements stipulated in this Decree, the resolutions issued in pursuance
hereof, and other legislation in force in the Emirate.
a. The Probate Court
will be comprised of first instance and appellate Divisions whose Judges will
be appointed or temporarily assigned in accordance with the provisions of the
above-mentioned Law No. (13) of 2016.
b. Each Division will
be comprised of three (3) Judges. Divisions will be formed pursuant to a
resolution of the Chief Justice of the Probate Court. In forming Divisions, it
must be ensured that Judges have diverse specialisations as required to
accommodate the nature of the Estate Claims and Lawsuits for Subdivision of Property
Co-owned in Undivided Shares filed with the Probate Court.
a. A chief
justice whose grade is not lower than Cassation Judge will be appointed to the
Probate Court pursuant to a resolution of the Judicial Council.
b. The Chief Justice
of the Probate Court will supervise the work of the Probate Court, and may
preside over any of its appellate Divisions.
a. One or more
Reporting Judges will be appointed to the Probate Court. A Reporting Judge's
grade may not be lower than senior First Instance Judge. Pursuant to a
resolution of the Chief Justice of the Probate Court, a Reporting Judge may be
a member of a Division other than that in which he has undertaken preparatory
work or provided legal opinion.
b. A Reporting Judge will
have all the powers and responsibilities of a supervising Judge and a case
manager under the above-mentioned Federal Law No. (42) of 2022, this Decree,
and other legislation in force in the Emirate.
c. A Reporting Judge
will have all the powers, responsibilities, and functions related to managing
Estate files as stipulated in the above-mentioned Federal Law No. (28) of 2005
and the legislation in force in the Emirate. In particular, the Reporting Judge
will:
1.
consider and
determine Inheritance and Estate Applications, and applications for subdivision
of property co-owned in undivided shares;
2.
open Estate files and
administer Estates in preparation for division among the Heirs or for referral
to the competent Division;
3.
conduct an
inventory of, and liquidate, the Estate; propose settlement and division of the
Estate amongst the entitled Heirs; and finalise the division;
4.
appoint, upon the
request of the Heirs or on his own initiative, an Estate Custodian;
5.
prepare Estate
Claims and Lawsuits
for Subdivision of Property Co-owned in Undivided Shares and manage them before the
competent Division; and
6.
perform any other
duties assigned to him by the Chief Justice of the Probate Court.
a. Inheritance and
Estate Applications will be filed with the Reporting Judge who will issue the
appropriate certificates, decisions, or orders in respect thereof, in
accordance with the legislation in force in the Emirate and the relevant
adopted procedures.
b. An Estate file
will be opened at the Probate Court upon the request of a concerned party. The
Reporting Judge will, either personally or through the Estate Custodian, take
the necessary action to conduct an inventory, administration, and liquidation of
the Estate’s assets, in accordance with the legislation in force in the
Emirate.
The Reporting Judge will
propose a settlement to the parties to the Estate Claim; and if they accept the
settlement, the following procedures will apply:
1. A settlement
agreement will be drafted under the supervision of the Reporting Judge, and
will be signed by all the parties to the Estate Claim.
2. The settlement
agreement will be ratified, approved, and documented by the Reporting Judge.
The agreement will have the force of a writ of execution.
3. A copy of the
settlement agreement will be delivered to each party to the Estate Claim, and another
copy will be maintained by the Probate Court.
a. In the event of
failure to reach a settlement between the parties to an Estate Claim, the
Reporting Judge must document this in his decision, citing the legal classification
of the subject matter of the dispute.
b. The concerned
parties may file the Estate Claim with the Probate Court within thirty (30)
days from the date of issuance of the Reporting Judge’s decision declaring failure
to reach a settlement in accordance with the provisions of paragraph (a) of
this Article.
c. Where the Estate
Claim is not filed with the Probate Court within the prescribed period referred
to in paragraph (b) of this Article, the Reporting Judge may take any action he
deems appropriate in this respect, including issuing a decision to close the
Estate file. However, this will not preclude the concerned parties from submitting
a subsequent application for filing the Estate Claim.
After registering the Estate
Claim, the Reporting Judge will, within a period not exceeding forty-five (45)
days from the date on which the claim is registered, schedule a hearing for the
parties to appear before the competent first instance Division of the Probate
Court. Prior to the scheduled hearing, the Reporting Judge must:
1. order each of the parties
to submit, within fifteen (15) days from the date of the order, a comprehensive
statement containing his applications, the points of dispute with the other
parties, and the relevant supporting evidence and documents;
2. prepare a
memorandum with his legal opinion on the Estate Claim. The memorandum must
state the subject matter of the Estate Claim, the disputes arising out of the
claim, the claims and defence of each party, the points of disagreement between
the parties, and the established legal principles applicable to similar
disputes; and
3. refer the Estate
Claim and his legal memorandum to the competent first instance Division of the
Probate Court, and summon the parties to appear before it at the scheduled
hearing.
a.
Applications related to subdivision of property co-owned in undivided
shares will be filed with the Reporting Judge at the Probate Court.
b.
The Reporting Judge will propose to the parties a consensual
subdivision. If the parties accept the proposal, the procedures stipulated in
Article (11) of this Decree will apply.
c.
If the parties do not accept the proposed consensual subdivision,
the Reporting Judge must issue a decision declaring failure to conduct consensual
subdivision.
e.
Where the Lawsuit for Subdivision of Property Co-owned in
Undivided Shares is not filed within the prescribed period referred to in
paragraph (d) of this Article, the Reporting Judge may take any action he deems
appropriate in this respect, including dismissing the application. However,
this will not preclude the parties from submitting a subsequent application for
filing the lawsuit.
f.
The procedures stipulated in Article (13) of this Decree
will apply to preparation for filing Lawsuits for Subdivision of Property Co-owned
in Undivided Shares before the Probate Court.
a. The
competent Division of the Probate Court will hear and determine a claim
referred to it within a period not exceeding one (1) year from the date on
which the claim is registered with it. However, this period may, upon the
approval of the Chief Justice of the Probate Court, be extended for any further
period determined by him based on the circumstances of the claim and the
progress of proceedings.
b. The
competent Division of the Probate Court must prepare a schedule stating the
requirements and the procedures for determining the claim within the period
prescribed in paragraph (a) of this Article. This schedule must be communicated
to the parties to the claim at the first hearing.
a. The provisions of
the above-mentioned Law No. (13) of 2020 and other legislation in force in the
Emirate apply to regulating Expert Witness Work before the Probate Court.
b. The Probate Court
will determine the time limit for the Expert Witness to complete his assignment
and submit his report. This time limit may be extended only at the discretion
of the Probate Court based on substantial grounds, provided that the extension
period does not exceed the originally prescribed period, and does not conflict
with the schedule approved by the Probate Court for determining the claim.
a. Any affected party
may file a grievance with the first instance Division of the Probate Court
against any order or decision rendered by the Reporting Judge by submitting a
statement of grievance within five (5) working days from the day following the
date on which he is notified of the contested order or decision. The statement
of grievance must specify the contested order or decision and the grounds for
the grievance.
b. The first instance
Division of the Probate Court will determine in camera the grievance presented
to it. The decision rendered by the first instance Division on the grievance
will be final and not be subject to any form of appeal.
a. A litigant may appeal
a judgement rendered by the first instance Division of the Probate Court before
the appellate Division of the Probate Court. The judgement rendered by the
appellate Division will not be subject to appeal by cassation.
b. A litigant may appeal
a final judgement rendered by the Divisions of the Probate Court by way of a petition
for review.
c. The appeals
referred to in paragraphs (a) and (b) of this Article will be filed in
accordance with the time limits, cases, and procedures stipulated in the
above-mentioned Federal Law by Decree No. (42) of 2022.
A judgement rendered by the
Probate Court is enforceable through the regular methods of enforcement of
judgements by the Courts.
The Probate Court will
determine the applications, claims, and appeals filed with it by reference to:
1. the provisions of
the federal and local legislation in force in the Emirate;
2. the provisions of
Islamic Sharia;
3. the principles of
natural justice, equity, and fairness; and
4. custom, provided
that such custom does not contradict the legislation in force, public order, or
public morals.
a. The Probate Court hereby
replaces the Probate Court established pursuant to the above-mentioned
Resolution No. (6) of 2022.
b. The Probate Court hereby
replaces the Special Tribunal that was formed to consider and determine the
applications, claims, disputes, and appeals filed with the Special Tribunal in
respect of the sale by Heirs of Residential Real Property; and whose functions were
regulated pursuant to the above-mentioned Resolution No. (8) of 2021.
c. The functions of
the Courts of First Instance at the Courts which are related to Inheritance and
Estate Applications, Estate Claims, and Lawsuits for Subdivision Property Co-owned
in Undivided Shares are hereby transferred to the Probate Court.
d. As of the
effective date of this Decree, all Inheritance and Estate Applications, Estate
Claims, and Lawsuits for Subdivision of Property Co-owned in Undivided Shares that
are being heard by the Courts of First Instance of the Courts are hereby
transferred to the Probate Court, in their current state, unless they are
reserved for judgement.
e. After the
effective date of this Decree, no Court in the Emirate may admit any new
application or claim that falls within the jurisdiction of the Probate Court.
a. The Courts will
provide the administrative, financial, and technical support required to enable
the Probate Court to exercise its functions under this Decree, the resolutions
issued in pursuance hereof, and other legislation in force in the Emirate. This
includes establishing a Case Management Office under the supervision of the
Reporting Judge.
b. The Case Management
Office will exercise its duties and powers in accordance with the
above-mentioned Federal Law by Decree No. (42) of 2022.
With the exception of the
resolutions which the Ruler or the Chairman of the Judicial Council is exclusively
authorised to issue under this Decree, the Chief Justice of the Probate Court
will issue the resolutions required for implementing the provisions of this
Decree.
a. This Decree
supersedes the above-mentioned Resolution No. (6) of 2022.
b. The
above-mentioned Resolution No. (8) of 2021 is hereby repealed. Any provision in
any other legislation will also be repealed to the extent that it contradicts
the provisions of this Decree.
This Decree will be published
in the Official Gazette and will come into force on the date following the day on
which it is published.
Mohammed
bin Rashid Al Maktoum
Ruler of Dubai
Issued in Dubai on 14 June 2023
Corresponding
to 25 Thu al-Qidah 1444 A.H.
©2023 The Supreme
Legislation Committee in the Emirate of Dubai
[1]Every effort
has been made to produce an accurate and complete English version of this
legislation. However, for the purpose of its interpretation and application,
reference must be made to the original Arabic text. In case of conflict, the
Arabic text will prevail.