How does the court decide where a dispute over the validity of a Will should be heard?
And what can advisers do to help avoid disputes over jurisdiction?
These issues were brought to the fore in Rehman v. Hamid [2019], writes Josh Lewison, barrister at Radcliffe Chambers.
Facts of the case
Mrs Ali was born in Lahore in 1947. In 1965, she married her husband, who was living in England, and went there to join him.
In 1986, they were registered as joint owners of their flat.
In 1993, Mrs Ali and her husband executed mirror Wills. In 2015, Mr Ali died.
Seven months later, Mrs Ali went to Pakistan on a one-way ticket.
In 2016, she executed a codicil to the 1993 will in Pakistan. In 2017, Mrs Ali executed an updated Will, and later that year died in hospital in Lahore.
Head to head
But a dispute arose as to the validity of the 2017 Will, which was in substantially different terms to the 1993 version.
In 2018, proceedings were issued in Pakistan, seeking to challenge the validity of the 2017 Will.
A year later, proceedings were issued in England, seeking to challenge the validity of the 1993 Will and uphold the validity of the 2017 version.
The two sets of proceedings concerned the same subject matter and had the same interested parties.
The English court, therefore, listed a hearing to determine whether the English proceedings should be stayed pending the outcome of the Pakistani proceedings.
The matters considered by the court were the ordinary factors used to identify the forum conveniens (the most appropriate court to hear the dispute), specifically:
The natural forum, which in this case depended on the location of the property in the estate, which was England.
The ability of the litigants to understand the procedure. This factor pointed towards Pakistan, where expert lawyers were engaged, rather than England, where the lawyers had made a mess of the proceedings.
The domicile of the deceased. After a lengthy consideration, the judge decided that Mrs Ali was domiciled in Pakistan. That was either because she had always been domiciled in Pakistan or because she had abandoned her English domicile.
The location of the relevant persons. The majority of the beneficiaries lived in Pakistan, and the minority (who lived in England) wanted to resolve the dispute in Pakistan. The attesting witnesses and the medical professionals who had treated the deceased lived in Pakistan. The connecting factors therefore pointed towards Pakistan.
The court first seised. Proceedings had first been issued in Pakistan, so that the courts of Pakistan had the prior interest in resolving the dispute.
The cost of proceedings. It was a relevant factor that it was cheaper to litigate in Pakistan.
The availability of substantial justice. The claimant in the English proceedings made a suggestion, described by the judge as “scurrilous”, that the Pakistani courts lacked expertise, made irrational orders and did not apply the relevant law.
The overall result was that Pakistan was the appropriate forum to hear the dispute.
Avoiding arguments
Advisers will be keen to avoid their clients’ estates being subjected to jurisdictional disputes.
Quite apart from anything else, they add a layer of time and expense by requiring litigation about litigation.
But could an exclusive jurisdiction clause be inserted in the Will?
It is doubtful that such a clause purporting to confer exclusive jurisdiction on the courts of a particular country would be enforced.
In Crociani v. Crociani [2014], the Privy Council emphasised that even where such a clause appears in a contract, and has thus been agreed by the parties, the court has a discretion as to whether or not to enforce it.
The Privy Council went on to say that less weight should be given to an exclusive jurisdiction clause in a trust because of the absence of a bargain between the parties.
Where the validity of a Will is itself in dispute, so that the Will may be void, an exclusive jurisdiction clause is even less likely to be enforced.
One improvement that advisers can make is to create and keep much better records of the client’s domicile.
Determining domicile in court often requires a detailed enquiry, covering a great volume of evidence.
Much of that work could be avoided if, at the time of taking instructions for a Will, advisers also took a statement from the client designed to elicit where they consider their permanent home to be.
A statement of that nature would be highly persuasive and certainly better than trawling through a deceased person’s life in order to consider their “tastes, habits, conduct, actions, ambitions, health, hopes and projects”, as it was put in Casdagli v. Casdagli [1919].
Ultimately, there is no silver bullet that can prevent jurisdiction disputes, but advisers do have their part to play in making these disputes less likely to arise.
This article was written for International Adviser by Josh Lewison, barrister at Radcliffe Chambers.
