This decision by Master Shuman contains a summary of the principles which apply where there is a question of whether probate proceedings in a cross-border estate should take place in England or in another country. This issue frequently crops up, particularly where a Will has been executed abroad but there is property within the deceased’s estate in England. Since the deceased’s domicile can be relevant to the question of the appropriate forum, the judgment also considers the applicable principles on domicile.
Background to the proceedings
The issue at the heart of the claim was whether the Will of Mrs Ali, the deceased, dated 17 November 2017 and made in Pakistan (‘the 2017 Will’) was valid and whether that issue should be determined in Pakistan or England. The 2017 Will was a radical departure from an earlier mirror Will that Mrs Ali made with her late husband on 23 February 1993 (‘the 1993 Will’) where she broadly sought to distribute her estate equally between the family of her husband and herself, presupposing her spouse predeceased her. At the time of Mrs Ali’s death there were 14 living beneficiaries under the 1993 Will. There was a Codicil to the 1993 Will which was dated 17 April 2016 (‘the 2016 Codicil’).
The 2017 Will appointed the Claimant, who was said to be a business acquaintance of Mr Raheel Dar, as executor. Mrs Ali then purportedly left her entire estate to Mr Dar’s son, Muhammed Umar Dar, her great-nephew.
Prior to the making of the alleged 2017 Will, Mrs Ali’s husband had died on 13 January 2015. Mrs Ali subsequently left England for Pakistan on 1 August 2015, on a one-way aeroplane ticket. On moving there, she lived with Mr Dar. On 6 December 2017, Mrs Ali died in a hospital in Lahore. Although the court was hampered by not having any draft estate accounts, it appeared that the principal asset in the estate was a leasehold property in Palmers Green, London (‘the Flat’).
The Defendant, who was one of 14 plaintiffs in related proceedings which had been issued before the English proceedings in Pakistan in July 2018, had alleged that the 2017 Will was a forgery or alternatively that Mrs Ali lacked testamentary capacity and that the provisions of the 2017 Will were not in accordance with Muslim laws.
On 30 January 2019, the Claimant issued probate proceedings in the Family Division seeking the following relief: (1) that a caveat put on the estate by the Defendant be set aside or revoked (2) that the grant of probate of the 2017 Will be given to the Claimant (3) that the proceedings issued by the Defendant in Pakistan be dismissed (4) that the order from the conclusion of the English proceedings be applicable to the estate of Mrs Ali in England and Pakistan. On any view, it is hard to see how the Claimant was going to achieve orders with extra-territorial effect such as the dismissal of the proceedings in Pakistan, but on 19 February 2019, the Defendant made an application to stay the English proceedings.
On a procedural note, Master Shuman was critical of the Claimant for commencing the claim in the Family Division and for failing to comply with CPR Part 57 (such as by ascertaining where all the relevant wills were). The court was unclear as to why the Claimant had elected to bring a claim against only one of the 14 beneficiaries under the 1993 Will.
Knowles J, sitting in the Family Division, transferred the probate claim to the Business and Property Courts, but stayed it pending determination of the Pakistan proceedings. On receipt of the papers, Master Shuman rescinded the order staying the claim and listed the matter for a directions hearing. At the directions hearing, the court listed a further hearing to consider the future management of the claim, including but not limited to whether the stay should be reinstated.
More detailed factual background
Mrs Ali had been born in Lahore in pre-partition India on 1 January 1942. Upon partition, she and her family were living in the newly-created country of Pakistan. Counsel for the Defendant submitted that the name of Mrs Ali’s domicile of origin had been changed through a geopolitical administrative process and it would be artificial to consider Pakistan as anything other than Mrs Ali’s domicile of origin. This was accepted by the court.
On 12 March 1965, Mrs Ali married her late husband Mr Mukhtar Ali, who was living in the UK. She joined him in the UK and on 12 September 1986 they became owners of the Flat.
Under the 1993 Will and the mirror Will executed by Mr Ali, they appointed each other as executor together with a Mr Ahmed and provided for a default appointment of two partners of a firm known as SJ Vickers and Co (now Stapletons Solicitors). Mr and Mrs Ali each passed their estate to the other and in the event of the spouse predeceasing them, there was a default distribution between a number of family members.
Under the 2016 Codicil, Mrs Ali appointed her brother-in-law as a default executor in place of the partners at SJ Vickers.
Following Mrs Ali’s death on 6 December 2017, a caveat was placed on her estate by the Defendant.
The July 2018 proceedings issued in Pakistan were commenced by the beneficiaries of the 1993 Will and were brought against the sole beneficiary under the 2017 Will, Muhammad Dar, his father Raheel Dar and the Claimant. All but three of the plaintiffs were resident in Lahore, three of them residing in England. All of the three plaintiffs who were resident in England, including the Defendant, had confirmed that they wished the proceedings in Pakistan to proceed and for the English proceedings to be stayed.
Master Shuman noted that the applicable factors were encapsulated in the case of Spiliada Maritime Corporation v Cansulex Limited  AC 460 (HL). In that case, the House of Lords considered the factors applicable both to granting a stay of English proceedings on the ground that some other forum was the appropriate forum and to granting leave to serve proceedings out of the jurisdiction, the House of Lords considering that the factors were the same in relation to both sorts of application.
The factors can be summarised as follows:
- The basic principle is that a stay will only be granted on the grounds of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
- The burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. However, in the event that a party sought to show that a particular factual circumstance was a relevant factor in support of or against a stay, the burden was on that party to make that out on the facts.
- The burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.
- The ‘natural forum’ is the one with which the action has the most real and substantial connection. Connecting factors include not only factors affecting convenience or expense (such as the availability of witnesses) but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business.
- If the court concludes that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact (if established) that the plaintiff will not obtain justice in the foreign jurisdiction.
The court went on to consider six discrete factors which applied in this case:
- What was the natural forum for the dispute;
- The ability of the litigants to understand the procedure;
- The domicile of the deceased;
- The fact that there was a possible issue of Mohammedan Law;
- Connecting factors: the location of the relevant protagonists in the case;
- The court first seized;
- The cost of proceedings in England versus Pakistan;
What was the natural forum for the dispute?
The court considered that the natural forum of the claim was England. The principal asset in the estate was the Flat, and the 1993 Will was made in England.
The ability of the litigants to understand the procedure
The court accepted that this was a consideration, but no more than that. The history of the English proceedings rather demonstrated that the Claimant and specifically his previous solicitors struggled to comply with the English procedure. There was nothing in the papers to suggest that the Claimant had any such difficulty with the procedure in Pakistan. Indeed, the evidence of Mr Rajput, the Claimant’s lawyer in Pakistan, clearly demonstrated that he had a legal team in place there who held themselves out as experts in the field of probate law. The Defendant had also instructed a lawyer in Pakistan, who was also acting for the other plaintiffs there.
The domicile of the deceased
The parties accepted that Mrs Ali’s domicile of origin was Pakistan. However, it was the Claimant’s case that Mrs Ali had a domicile of choice in England.
The court noted that a person can acquire a domicile of choice by the combination of residence and intention or permanent or indefinite residence. The burden was on the Claimant to establish that.
The court was referred to the useful authority of Kelly v Pyres  EWCA Civ 1368 in which the test for domicile was considered. The court recapitulated the general propositions of law set out by King LJ (as she then was) in that decision:
- A domicile of origin is ‘more tenacious’ than other forms of domicile – it was more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice.
- Clear and cogent evidence is needed to show that the balance of probabilities has been tipped in favour of the acquisition or loss of a domicile of choice
- The statements of people claiming or disputing a change of domicile must be treated with caution unless corroborated by action consistent with the declaration.
- Residence for a short period of time, even a few days, may be sufficient establish a domicile of choice. The length of residence is not important in itself.
- Whilst the residence does not have to be long, it has to be with the intention of permanent or indefinite residence.
The Claimant referred to the fact that Mrs Ali had lived in England between 1965 and 2015 although it was accepted on his behalf that length of residency alone was not sufficient. The Claimant alleged that Mrs Ali came to England from Pakistan and acquired a domicile of choice here by acquiring indefinite leave to remain and then being granted British citizenship. He submitted that Mrs Ali made England her home, she lived here for 50 years and owned property here for more than 40 years.
The court noted that this boiled down to the fact that Mrs Ali moved here to live with her husband, acquiring British citizenship (although she retained her Pakistani citizenship), and then lived in England for a long period after acquiring a home in London. However, the court considered it relevant that Mrs Ali moved back to Pakistan on her husband’s death, having placed the Flat on the market for sale. The court was not convinced that the Claimant had established that Mrs Ali acquired a domicile of choice in England, particularly given that there was only a bare assertion that Mrs Ali intended to acquire a domicile of choice in England.
If the court was wrong on this, however, it considered that Mrs Ali had abandoned her English domicile of choice by the time of her death. The circumstances in 2015 to 2017 were decisive; Mrs Ali told her doctor, other health professionals, friends and family that she was leaving the UK, that she was returning to Pakistan and that she would not be coming back to the UK. She sought to check the effect of her moving to Pakistan on her life insurance and purchased a one-way plane ticket back to Pakistan. She further swore a declaration to the International Pension Service Office that she had gone to live in Pakistan. Finally, the Claimant’s own Particulars of Claim indicated that following the death of Mr Ali, Mrs Ali had wished to relocate to Pakistan to live with the father of the sole beneficiary of the 2017 Will.
Issue of Mohammedan Law
The court held that the English court could resolve this issue with the assistance of expert evidence and although, as the Defendant submitted, a court in Pakistan might be better placed to deal with it, it was not a pivotal factor.
Connecting factors: the location of the relevant protagonists in the case
Under the 1993 Will and the 2017 Will there were 15 living beneficiaries: 12 of them lived in Pakistan, with the 3 that lived in England making it clear that they wished the dispute to be resolved in Pakistan. The material witnesses (the attesting witnesses to the 2017 Will) were in Pakistan. A notary on whom the Claimant relied and the medical professionals who treated the deceased for just over two years before her death were in Pakistan. All of those who had contact with the deceased in the two years preceding the execution of the disputed Will were in Pakistan.
The Claimant had suggested that English medical professionals would need to give evidence because this would be relevant to determine a question of testamentary capacity in 2017. However, the deceased left England over two years before the disputed will was signed.
The court first seized
The Pakistan court was first seized of the matter, with the English proceedings having been issued six months after the Pakistan proceedings.
The Claimant submitted that the proceedings in Pakistan were an abuse, but the court found that there was no evidence to support this.
The cost of proceedings
The parties had agreed that it would be less expensive in financial terms for the parties to litigate their dispute in Pakistan rather than in London. However, there was some limited evidence that the court process might take slightly longer in Pakistan.
Given the above, the court was satisfied that the Defendant had established that Pakistan was clearly or distinctly more appropriate as the forum of the dispute.
The Claimant had adduced evidence from his own lawyer Mr Rajput that justice would be denied to him if the case were tried in Pakistan rather than England. However, Mr Rajput was not an independent expert witness.
The court found the manner in which Mr Rajput had made his assertions as a lawyer astonishing; for example he had asserted in a statement dated 8 January 2019 in the Pakistan proceedings that since the execution of the 2017 Will was already pending in London, the suit was not maintainable. However, the Claimant had not actually issued his probate claim until 30 January 2019.
Although Mr Rajput had complained about possible delay within the Pakistani legal system, in fact it appeared that the Claimant had sought to delay the Pakistan proceedings on a number of occasions. Mr Rajput had further criticised the expertise of Pakistani judges, but the cases cited by him did not support this. The court held that the accusations were scurrilous and referred to Vedanta Resources Plc v Lungowe  UKSC 20 in which Lord Briggs held in the Supreme Court that a finding that substantial justice could not be obtained in another jurisdiction required cogent evidence, which may properly be subjected to anxious scrutiny. The court held that in this case the evidence came nowhere near the level of evidence needed.
The court therefore granted a stay of proceedings.
This case shows that, in a cross-border probate dispute, the fact that the only major asset in the estate was in England did not determine that the probate dispute should be heard here. The location of most of the parties in Pakistan and the willingness of most of the parties to have the dispute heard in Pakistan, together with the location of the relevant witnesses there, made Pakistan a much more obvious choice in the end. This does not appear to have been a finely balanced decision. Nevertheless, the case contains an useful and succinct summary of the principles which can be at play in such cases. It also shows the importance of obtaining cogent expert evidence (with permission for the same being obtained) if a party wishes to make an argument that he/she will not obtain justice in the foreign jurisdiction, given that the court will give such an argument close scrutiny.
(Author: William East, 5 Stone Buildings)