What is the correct forum for a multi-jurisdictional probate dispute?

11 February 2020

The recent decision in Rehman v Hamid [2019] EWHC 3692 (Ch) provides a useful reminder of the principles to be applied when determining the correct forum for a dispute arising in relation to a multi-jurisdictional estate.

The case concerned the validity of a will made by the deceased, Mrs Ali, and whether that claim should be determined in England of Pakistan. Mrs Ali was born in Lahore in 1942. In  1965 she married Mukhtar Ali and moved to be with him in the UK. On 13 January 2015 Mukhtar died and Mrs Ali returned to Pakistan where she subsequently died in December 2017.

Mrs Ali and Mukhtar had made mirror wills on 23 February 1993. They each appointed the other as executor/executrix and also passed their estate to each other. In the event of one of them pre-deceased the other there was a default distribution between a number of family members (there were 14 living beneficiaries under the 1993 Wills at the date of Mrs Ali’s death). On 17 April 2016 Mrs Ali made a codicil to her 1993 Will replacing the default executor. On 17 November 2017, three weeks before she died, Mrs Ali made a new Will in Pakistan (“the 2017 Will”). Under the 2017 Will, Mrs Ali gifted her entire estate to a child of the family (who was not a beneficiary under the 1993 Will).

It was alleged that the 2017 Will was a forgery or in the alternative that the deceased lacked testamentary capacity. Proceedings were issued in both Pakistan and England. The application before the court was to stay the English proceedings pending the determination of the proceedings in Pakistan.

Master Shuman referenced the applicable factors set out in the case of Spiliada Maritime Corporation v Cansulex Limited [1987] AC 460 (HL). In that case the House of Lords considered that the same factors applied to a grant of a stay of English proceedings on the ground that another forum was the appropriate one and the grant of leave to serve proceedings out of the jurisdiction. Master Shuman summarised the law as follows:

“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.  If I conclude that there is some other available forum which prima facie is clearly more appropriate for the trial of the claim, a stay will usually be granted unless there are circumstances which justice requires that a stay should nevertheless not be granted.  That will be a matter for the claimant to establish.”

Master Shuman considered seven discrete factors in the case in order to reach his determination:

1. What is the natural forum for a dispute?

The natural forum was England. The main asset in the estate was a flat in England. The 1993 Will was made in England. It is easier for the English Court to apply English law.


2. The ability of the litigants to understand the procedure

This was no more than a consideration. The claimant had historically failed to comply with English procedure but there was no evidence that he had any such difficulty in Pakistan.


3. The domicile of the deceased

It was accepted that Mrs Ali’s domicile of origin was Pakistan.

It was submitted that Mrs Ali had a domicile of choice in England. Mrs Ali had lived in England for more than 40 years and owned a property here. She had acquired British citizenship.

However, the Court considered it relevant that Mrs Ali had returned to Pakistan on the death of her husband and was not convinced that it had been established that Mrs Ali had acquired a domicile of choice in England.

Even if the court was wrong on this, Master Shumen considered that Mrs Ali had abandoned domicile of choice in England at the time of her death. She had told friends and family that she was leaving England for Pakistan permanently and purchased a one way plane ticket. She had sworn a declaration with the International Pension Service and changed her life insurance to reflect the move.


4. An issue of Mohammedan Law (it was submitted that the provision of the 2017 Will are not in accordance with Muslim laws)

This was simply something to be weighed in to the balance. It would be possible to resolve this aspect on England with expert evidence.


5. Connecting factors: the location of the relevant protagonists in this case

There were 15 living beneficiaries of the two wills. Twelve beneficiaries lived in Pakistan and the other three beneficiaries living in England wanted the dispute determined in Pakistan. All those in contact with the deceased in the two years prior to her death, including applicable medical professionals were also in Pakistan


6. The court first seized

The Pakistan court was first seized of this matter.


7. The cost of proceedings

It was agreed that it would be less expensive to litigate in Pakistan however there was some evidence that it would take slightly longer.


Master Shuman also had to consider whether the claimant would in effect be denied justice where the case to be tried in Pakistan rather than England. Master Shuman was highly critical of the way this aspect of the case was put by the claimant and in any event found that the evidence provided was not sufficient to require scrutiny.

Master Shuman concluded that “the defendant has demonstrated that Pakistan is clearly or distinctly the more appropriate forum and that the claimant has not satisfied me on the evidence adduced that justice would not be available to him in Pakistan” and consequently granted the stay of proceedings pending the determination of the Pakistan proceedings pertaining to the validity of the 2017 Will.

The fact that the estate’s main asset was in England was not enough for the Court to support a determination that the Will dispute be heard here with the other factors tipping the balance in favour of Pakistan demonstrates the importance of detailed application of all the applicable factors when determining the prospects of success of a forum challenge.  

Further information

If you would like to discuss any points raised in this blog or require advice relating to a probate dispute, please contact Katherine Pymont or another member of our Wills, Trusts and Inheritance disputes team.

About the author

Katherine is a Senior Associate in our Dispute Resolution team. She has a broad spectrum of litigation experience with particular  expertise in Wills, Trusts and Inheritance disputes.

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