Living in different countries over the course of your life sounds exciting – but it can create issues with your will and estate when you die and raise questions about which country's rules should apply. A recent court case – Rehman v Hamid - involving a woman who lived in Pakistan and England and created a will in both countries – is a classic example of the complications that can arise.
1942: Mrs Ali is born in Lahore, pre-partition India – now Pakistan
1965: Mrs Ali marries, moves to England and makes a will – the 1993 Will – sharing her estate between her Pakistan family and her husband's family.
2015: Mrs Ali's husband dies. Mrs Ali returns to Pakistan to live with her nephew.
2017: Mrs Ali makes a second will – the 2017 Will – leaving her estate to her great-nephew (not a beneficiary in the 1993 Will).
December 2017: Mrs Ali dies in Lahore, Pakistan.
The main issues in this case were (i) whether the 2017 Will was valid, and (ii) which country's courts should decide that question.
What was the English court asked to do?
The beneficiaries of the 1993 Will asked the English court to leave the decision-making about the validity of the 2017 Will to the Pakistan courts, on the basis that Mrs Ali was domiciled in Pakistan.
In deciding which country should 'take the lead', the English court applied seven criteria:
- What was the natural forum of the dispute i.e. which country is 'closer' to the dispute? In this case, the main asset under Mrs Ali's wills was a flat in England. The 1993 Will was made in England. It would be easier for an English court to apply English law.
- The ability of the litigants involved to understand the procedure: It was noted that certain aspects of English court procedure were difficult to understand. The court wasn't aware of any such difficulty with the procedure in Pakistan.
- Domicile of the deceased: Domicile is an important legal term in personal and family law. In this case the court had to asses two types of domicile:
- Domicile of origin: you acquire this at birth and in most cases it'll be the same as your parents. Mrs Ali was concluded to have a domicile of origin in Pakistan.
- Domicile of choice: the court then considered if Mrs Ali had acquired a domicile of choice when she moved to England to live with her husband. Although she lived in England for over 40 years and was a British citizen, she retained her Pakistani citizenship- and returned to live in Pakistan. It was concluded that she did not obtain a domicile of choice in England.
- Mohammedan law: The legal arguments involved in the case included whether the will was valid under Mohammedan law. While this is a feature of Pakistani law, it can still be addressed in England.
- Connecting Factors: Of the 15 potential beneficiaries under Mrs Ali's wills, 12 lived in Pakistan and the remaining 3 (who lived in England) wished for the dispute to be resolved in Pakistan. More of the relevant parties in the case were based in Pakistan than England.
- Which court was first approached on the dispute? The case was raised first in Pakistan.
- How much would the proceedings cost in each country? Pakistan was considered to be less expensive for everyone involved.
On the basis of these seven factors, the English court decided to suspend legal proceedings in England – and left the decision about the validity of the 2017 Will to the Pakistan courts.
What should you think about when living/ moving abroad?
Cases like this are common, and unfortunately the laws of different countries don't always fit neatly together. Our own specialist cross-border lawyers have frequently acted in these types of disputes – and they can become complex and time-consuming.
That's why it's so important to take advice at an early stage - to avoid potential disputes further down the line.