Cross-border probate disputes are inherently complex and also have a tendency to be high-value, although as the world becomes increasingly connected, such disputes are becoming a more common feature for families across all kinds of economic groups.
The recent case of Rehman v Hamid  EWHC 3692 (Ch) serves as a useful reminder of the need to ensure the correct jurisdiction for a dispute arising in relation to cross-border probate issues.
Rehman v Hamid
The case concerned the mirror wills made by a married couple, Mr and Mrs Mukhtar Ali, in the UK on 23 February 1993. Each appointed the other as executor/executrix, with each also bequeathing their estate to the other, with a default distribution to be made between 14 beneficiaries.
However, on 13 January 2015 Mukhtar died and on 17 April 2016 Mrs Ali made a codicil to her 1993 Will in which she appointed a new executor. Then, on 17 November 2017, around three weeks before her death, Mrs Ali made a new Will in Pakistan. Under this Will, Mrs Ali left the whole of her estate to a child of the family who had not been a beneficiary under the 1993 UK Will.
Jurisdiction – the key question
Courts in both Pakistan and England were asked to determine where a claim regarding the validity of the 2017 Will should be heard; with the beneficiaries of the 1993 Will arguing that the 2017 Will was either forged or written at time when Mrs Ali lacked testamentary capacity.
The court considered the case in light of the House of Lords decision reached in Spiliada Maritime Corporation v Cansulex Limited  AC 460. In this case, the claimant had asked for a stay of English proceedings on the basis that another jurisdiction was more appropriate. In the Ali case, Master Shuman considered the burden to be on the defendant to demonstrate that England was not the correct forum for the trial and to establish that Pakistan was more appropriate than the English court.
She added that if she found that another forum was clearly more appropriate for the trial she would be able to grant a stay unless circumstances could be shown by the claimant that the stay should not be granted.
Finding an answer – the court’s criteria
Against this background there were several important points:
- The 1993 Will was written and signed in England and referenced English-based assets.
- It was unclear whether the 1993 Will was consistent with Islamic law.
- The domicile of the potential beneficiaries in the case – 12 of the beneficiaries lived in Pakistan and three resided in England.
- The jurisdiction of the first court that was applied to in relation to the cross-border probate dispute.
- Whether the testatrix better understood the law and its procedure in England or Pakistan.
- Where the testatrix resided – the court looked at both the fact of Mrs Ali’s long-term residency in England and her pre-death decision to return to Pakistan.
- Which would be the more cost-effective jurisdiction.
The court’s decision
Master Shuman concluded that the fact of the estate being mainly situated in England did not outweigh the fact that the defendant was able to demonstrate Pakistan as the more appropriate forum. The claimant failed to satisfy the judge that justice would not be available to him in Pakistan.
As such, and as the Pakistani court was the first applied to, it was determined that Pakistan’s legal system would be the most suitable forum for the probate dispute.
Cross-border probate – some general notes
Whether the major assets are property, pensions, investments or something else, the question of cross-border probate jurisdiction can be incredibly complex.
In the UK, a Private International Law (PIL) principle called ‘renvoi’ dictates that immoveable assets, such as property are automatically subject to the inheritance law of the country in which they are located whereas movable assets are subject to the ‘schismatic’, which means they are subject to the deceased’s country of residence.
In August 2015 EU Succession Regulation ‘Brussels IV’ effectively overruled the principle of renvoi as British nationals with cross-border issues in the EU had the option to elect the country in which they would like their probate to be administered.
However, following Brexit it is likely that PIL will apply – as such, depending on an individual’s circumstances, things have become either easier or more difficult. Whatever the case, the coming years are going to provide important clarification on the administering of cross-border probate in the post-Brexit environment.
Contact Oratto today for cross-border probate legal advice
Cross-border probate requires specialist legal knowledge and experience. Oratto can help you find the best contested probate solicitor for your needs
Contact Oratto today so that we can discuss your case with you and introduce you to a probate solicitor who specialises in international probate and Wills disputes.