Rehman v Hamid

Factual and Procedural Background

The claim concerns the validity of a will dated 17 November 2017 ("the 2017 will") made by the deceased in Pakistan, and whether the issue should be determined in Pakistan or England. The 2017 will represented a significant departure from an earlier mirror will executed in 1993 ("the 1993 will"), which broadly distributed the estate equally between the deceased's family and her late husband's family. At the deceased's death, there were 14 living beneficiaries under the 1993 will. A codicil to the 1993 will was executed in 2016, though incorrectly dated 2012.

In the current English proceedings, the claimant is one of three defendants in related proceedings in Pakistan, while the defendant here is one of 14 plaintiffs in the Pakistani proceedings. The defendant alleges that the 2017 will was forged or alternatively that the deceased lacked testamentary capacity and that the 2017 will does not comply with Muslim laws.

The deceased's husband died in January 2015. The deceased then returned to live in Pakistan in August 2015, residing with her nephew. The 2017 will appointed the claimant, described as a business acquaintance of the nephew, as executor and left the entire estate to the nephew's son, the deceased's great-nephew.

The deceased died in December 2017 in a hospital in Lahore. The principal asset appears to be a leasehold flat in London, with no probate valuation but previously marketed at £275,000. There are also some bank accounts in Lahore and London, but no evidence of significant funds. The estate is thus modest in value.

The claimant issued probate proceedings in England in January 2019, despite a caveat entered by the defendant in March 2018 and ongoing proceedings in Pakistan challenging the validity of the 2017 will. The claimant's probate claim was criticized for procedural failings, including non-compliance with CPR Part 57 and an unexplained failure to join all beneficiaries under the 1993 will.

The English Family Division initially stayed the probate claim pending determination of the Pakistani proceedings, but that stay was later rescinded. The court ordered compliance with procedural rules to clarify the location of relevant wills and listed directions hearings to consider the future management of the claim, including issues of jurisdiction, domicile, and conflict of laws.

Evidence filed includes witness statements from both parties and their legal representatives in England and Pakistan. The main issue before the court was whether to stay the English proceedings pending determination of the Pakistani proceedings on the validity of the 2017 will.

Legal Issues Presented

1. Is the 2017 will valid?
2. Should the validity of the 2017 will be determined in Pakistan or England?
3. What is the deceased's domicile at the time of making the 2017 will and at death?
4. Whether the English court should grant a stay of probate proceedings pending resolution of the Pakistani proceedings under the doctrine of forum non conveniens?
5. Are there circumstances that justify England retaining jurisdiction despite the existence of Pakistani proceedings?

Arguments of the Parties

Claimant's Arguments

• The deceased acquired a domicile of choice in England by residing there for 50 years, acquiring indefinite leave to remain, and British citizenship.
• The deceased intended to make England her permanent home, as evidenced by her property ownership and actions such as revoking powers of attorney in Pakistan.
• The English court is the natural forum for the dispute, especially given the location of the principal asset (the London flat) and the 1993 will being made in England.
• The claimant challenges the validity of the 1993 will and seeks to uphold the 2017 will in England.
• The claimant alleges the Pakistani proceedings are abusive and not genuine.
• Claims that substantial justice would be denied in Pakistan, supported by assertions regarding the Pakistani judiciary.

Defendant's Arguments

• The 2017 will is either a forgery or invalid due to lack of testamentary capacity and non-compliance with Muslim law.
• The deceased's domicile of origin was Pakistan and she did not acquire a domicile of choice in England; alternatively, any domicile of choice in England was abandoned when she returned to Pakistan in 2015.
• The natural and clearly more appropriate forum for the dispute is Pakistan, where the majority of beneficiaries and material witnesses reside.
• The Pakistani proceedings were commenced first and are genuine and properly constituted.
• The claimant has failed to comply with English procedural rules and has delayed proceedings in Pakistan.
• The claimant's evidence attacking the Pakistani judiciary lacks proper foundation and is rejected.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the central issue as whether the 2017 will is valid and where that issue should be determined. The court noted the significant departure of the 2017 will from the earlier 1993 will and the procedural complexities arising from parallel proceedings in England and Pakistan.

Applying the forum non conveniens test as set out in Spiliada Maritime Corporation v Cansulex Limited, the court considered whether Pakistan or England was the more appropriate forum. The court analyzed multiple factors:

• Domicile: The deceased's domicile of origin was Pakistan. The claimant bore the burden to prove a domicile of choice in England. Despite long residence and property ownership in England, the court found the claimant failed to prove the deceased intended to reside permanently or indefinitely in England. The deceased's return to Pakistan in 2015, sale of the English property, purchase of a one-way ticket, and declarations to relevant authorities supported abandonment of any English domicile of choice.
• Connecting factors: The majority of beneficiaries and all material witnesses, including those attesting the 2017 will and medical professionals, are in Pakistan. The main asset is in England, but this did not outweigh the other connecting factors.
• Procedural aspects: The Pakistani proceedings were commenced first and are genuine. The claimant's procedural failings in England and selective joinder of beneficiaries undermined his case. The claimant's allegations of abuse in the Pakistani proceedings were unsubstantiated and rejected.
• Substantial justice: The claimant failed to provide cogent evidence that justice would be denied in Pakistan. The court rejected unqualified criticisms of the Pakistani judiciary unsupported by proper expert evidence.
• Cost and convenience: Litigation in Pakistan would be less expensive, and the parties residing there preferred the dispute to be resolved there.

Balancing these factors, the court concluded that Pakistan was clearly or distinctly the more appropriate forum for trial. The court emphasized the importance of respecting the first-seized court and international comity.

Holding and Implications

The court granted a stay of the English probate proceedings related to the validity of the 2017 will pending determination of the proceedings in Pakistan.

This decision means that the dispute over the 2017 will's validity will be resolved in Pakistan, the forum with the closest connection and where the majority of parties and witnesses reside. The stay respects the principle of forum non conveniens and avoids parallel litigation. No new precedent was established; the ruling follows established principles governing jurisdiction and stays in cross-border probate disputes.