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Rehman v Hamid [2019] EWHC 3692 (Ch)

The High Court has granted a stay of proceedings brought in England to determine the validity of a Will made in Pakistan and ruled that Pakistan was the natural forum to determine the issue.

Our contentious probate team recently achieved success by persuading the High Court to stay English proceedings relating to the determination of the validity of his late aunt’s Will which was executed in Pakistan a few weeks before her death, on the basis that Pakistan was more appropriate as the forum to determine the dispute. Our client was also awarded all of his costs of the proceedings.

Background

The deceased, Mrs. Iffat Ali, was born in pre-partition India in 1942. Upon partition Mrs. Ali and her family were living in the newly created country of Pakistan. In 1965 she moved to the UK where she married her husband, Mr. Mukhtar Ali, who was by then living in the UK. In 1986, the couple purchased a property in the UK where they lived together until Mr. Ali’s death in January 2015. In August 2015, Mrs. Ali left England on a one-way plane ticket and returned to Lahore where she lived with her nephew, Raheel Dar, until she was admitted to hospital.

Mrs. Ali died in a hospital in Lahore on 6 December 2017. Three weeks earlier she made a new Will (‘the 2017 Will’) which marked a radical departure from an earlier mirror Will that she had made with her husband in 1993 in which she broadly sought to distribute her estate equally between the family of her husband and herself, in the event that Mr. Ali died first. At the time of her death there were 14 living beneficiaries under the 1993 Will, of which our client was one.

Under the terms of the 2017 Will, Mrs. Ali appointed Abdul Rehman (a business acquaintance of Raheel Dar) as executor of her estate and she gifted her entire estate to Raheel Dar’s son, Muhammad Dar.

The principal asset in the estate was a property in the UK.

In March 2018 our client placed a caveat on the estate. Notwithstanding the caveat, Mr. Rehman applied for a grant of probate in England on 3 July 2018, despite the fact that he had not properly warned off the caveat that was in place.

On 28 July 2018 our client, together with the 13 other beneficiaries of the 1993 Will, commenced a probate claim in Pakistan against Muhammad Dar, Raheel Dar and Abdul Rehman, in which they seek to challenge the validity of the 2017 Will on the basis that it was a forgery or, in the alternative, that Mrs. Ali lacked testamentary capacity and that the provisions of the 2017 Will were not in accordance with Muslim laws.

Six months later, in January 2019, Mr. Rehman commenced a probate claim in England against our client seeking: 1) that the caveat be set aside or revoked, 2) that a grant of probate be granted to Mr. Rehman, 3) the proceedings issued by the 14 other beneficiaries in Pakistan be dismissed, 4) the order from the conclusion of the UK proceedings be applicable to the estate in the UK and in Pakistan, 5) further or alternative relief, 6) costs.

In response, our client applied to stay the English proceedings on the ground that Pakistan was the more convenient forum to determine the probate claim.

The issue at the heart of the dispute was whether the 2017 Will was valid and whether that issue should be determined in Pakistan or England.

The Court’s analysis of the case

In deciding whether Pakistan was the natural and more appropriate forum for the trial, the Court applied the factors outlined in the case of Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 (HL), in which the House of Lords considered the factors applicable to both granting a stay of English proceedings on the ground that some other forum was the appropriate forum, and granting leave to serve proceedings out of the jurisdiction, the House of Lords considering that the factors were the same for both sorts of application.

The Court stated that “the burden is on the defendant to show that England is not the natural or appropriate forum for the trial and to establish that Pakistan is clearly or distinctly more appropriate than the English forum”.

It was important that all of the parties with a beneficial interest in the litigation and the material witnesses (e.g. the medics who cared for Mrs. Ali in her final two years, the Will draftsman, the person who gave the instructions to the Will draftsman, the attesting witnesses and every person who had seen Mrs. Ali during the relevant period) were either in Pakistan or had filed evidence confirming that they wished for the dispute to be determined in Pakistan.

The Court resolved the issue of domicile in our client’s favour, accepting that Mrs. Ali’s domicile of origin was Pakistan (and thus determining the effect of partition on a person’s domicile of origin), and stating that it was ‘not satisfied that the Claimant has discharged the evidential burden of establishing that there was a domicile of choice in England’. In reaching its conclusion the Court offered useful guidance on the quality of evidence (which should be “clear and cogent”) necessary to establish that an individual has acquired and abandoned a domicile of choice.

 The Claimant was unsuccessful in his attempt to persuade the Court that substantial justice would not be available to him in Pakistan, his advocate in Pakistan having asserted in evidence that “the Pakistani judiciary lack expertise … make irrational orders and … they do not apply the relevant law”. In this regard, the Court described the Claimant’s allegations as “scurrilous” and a “blistering attack on the Pakistani Judiciary” and it simply disregarded the Claimant’s evidence in relation to this issue.

Finally, the Court highlighted that “there has been a wholesale failure to comply with the provisions of CPR Part 57”. The Court referred to the Claimant’s failure to include vital matters such as ascertaining the location of all the relevant wills; to issue the contentious probate claim in the Business and Property Courts (which he wrongly issued in the Family Division); and to explain why proceedings were issued against only one of the 14 beneficiaries under the 1993 Will and why the others had not subsequently been joined.

The Court was satisfied that our client had demonstrated that Pakistan is ‘clearly and distinctly the more appropriate forum than the English forum’ and, on the evidence adduced, the Claimant had failed to satisfy the Court that justice would not be available to him in Pakistan. The Court therefore granted a stay of the English proceedings in so far as they relate to the validity of the 2017 Will until determination of that issue in the proceedings in Pakistan. Our client was also awarded all of his costs of the proceedings.

To find out more please contact Alexa Payet in the Contentious Trusts and Probate team at AlexaPayet@BoltBurdon.co.uk or 020 7288 4763.

You can also contact one of our other solicitors in the Contentious Trusts and Probate team here.

To view the judgment please click here.

 

Alexa Payet

020 7288 4707
07887 217 405
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