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Enforceability Of A Foreign Oral Will In The BVI – Wills/ Intestacy/ Estate Planning



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The Eastern Caribbean Court of Appeal recently handed
down an important judgment in the case of Al-Thani v Al
Thani
, permitting the enforcement of foreign oral wills in the
BVI. Simon Goldring and Rosalind Hetherington were the instructing
solicitors for the Respondents.

A member of the Qatari royal family died in 2014 while domiciled
in Qatar. Following his death, an entry was discovered in the
Sharia Court register having been made before and signed by a judge
and issued by the Registry in Qatar back in 1990. Under Qatari law,
such an entry is treated as a valid Will, although it is not signed
by the testator. This entry recorded the deceased’s oral wishes
regarding the disposition of his worldwide estate which included
giving 20% of his movable and immovable estate to his sister, niece
and “right hand man” (the Respondents).

The deceased’s widow, daughter and first son (the
Appellants) initiated proceedings in the first instance court in
Qatar challenging the validity and enforceability of the entry as a
“Will” on the basis it had been revoked during the
deceased’s lifetime. Shortly after issuing proceedings in
Qatar, they also made an ex-parte application in the High Court of
the Territory of the Virgin Islands for a grant of letters of
administration of the deceased’s estate in the BVI which
comprised shares in BVI companies. The application did not disclose
the existence of the Qatari Will or that there were proceedings in
Qatar challenging its validity. The High Court in the BVI granted
letters of administration of the deceased’s estate in the BVI
to the Appellants, on the basis that the deceased had died
intestate.

Subsequently, the Qatari Court of Appeal, and the highest Qatari
appellate court, the Court of Cassation, upheld the validity of the
Qatari Will. The Respondents therefore brought proceedings in the
BVI for the revocation of the letters of administration granted to
the Appellants and for probate of the Qatari Will. The
Appellants’ defence was that the Qatari Will was invalid under
BVI law.

Following a trial of preliminary issues, it was held that: (1)
The judgment of the Qatari Court of Appeal was valid and
enforceable and conclusive as to the validity and enforceability of
the Qatari Will in the BVI; (2) The Appellants are estopped by the
judgment of the Qatari Court of Appeal from contending that the
Qatari Will is not valid or enforceable in the BVI for the disposal
of the deceased’s movable property in the BVI; (3) The
deceased’s movable property in the BVI includes registered
shares of various BVI companies. The Appellants proceeded to
appeal.

The appeal was dismissed. The Court of Appeal confirmed the
principles applicable to res judicata and issue estoppel and
emphasised that the Qatari proceedings and the BVI proceedings were
materially identical, and they ought not to be re-litigated. It
found the Court of first instance was correct to find that the
rules of the deceased’s domicile governed the validity of the
Qatari Will. The law of the deceased’s domicile applied to the
succession of movable assets. The Appellants had sought to argue
that, by virtue of the provisions of section 245 of the BVI
Business Companies Act 2004, shares were in fact immovable assets.
The Court of Appeal, making it’s first ruling on this issue,
found that whilst section 245 deemed company shares to be located
in the BVI for title purposes, they were still movable property for
succession purposes.

The take-home message of these proceedings is that a foreign
oral Will, found to be valid under the law of the deceased’s
jurisdiction of domicile, is valid and enforceable in the BVI for
the purposes of succession of the deceased’s movable property
in the BVI, including registered shares in a BVI company.

Originally published 5 April, 2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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