Enforceability of a foreign oral Will in the BVI

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first instance court in Qatar challenging the validity and enforceability of the entry as a “Will” on the basis it had been revoked during the deceased’s lifetime.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.