BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> The Ali Abdullah Alesayi Will Establishment v Alesayi [2023] EWHC 3150 (Ch) (08 December 2023) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2023/3150.html Cite as: [2023] EWHC 3150 (Ch) |
[New search] [Printable PDF version] [Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
____________________
THE ALI ABDULLAH ALESAYI WILL ESTABLISHMENT |
Claimant |
|
- and - |
||
HASHIM ALI ALESAYI |
Defendant |
____________________
Simon Atkinson (instructed by Simmons & Simmons LLP) for the Defendant
Hearing date: 21 September 2023
____________________
Crown Copyright ©
This judgment will be handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00am on Friday 8 December 2023
Master Brightwell:
The requirement for a grant of representation
'The general rule is that a foreign representative of the deceased who wishes to represent him or her in England must obtain a grant of representation here and cannot sue in his or her character of foreign personal representative. The Rule, is, in short, an application of the general principle that no person will be recognised by the English courts as personal representative of the deceased unless and until he or she has obtained an English grant of probate or letters of administration.'
'28. That argument, it seems to me, is not sustainable on the basis of authority which is both clear and binding on me. Under the English conflict of laws, the stage of administration of an estate is governed by the law of the place where the assets are situated, which, in the current context, means England. Procedural questions arising in the administration are, likewise, dealt with by the law of the place where the administration is taking place. It is only when one gets on to the question of succession and who is entitled beneficially to share in the estate that one looks to the law of the domicile of the deceased, where one is concerned, as here, with personal property.
29. The disputed fund is situated in this jurisdiction. That remains the case, regardless of how it may vest in accordance with the Muslim personal law of the 7th Nizam. The authorities establish that claims to property in this jurisdiction can only be advanced by and through a properly constituted personal representative. That proposition is most succinctly stated by Warrington LJ in the case of Re Lorillard [1922] 2 Ch 638 at 645-6, where he said:
"The principle is that the administration of the estate of a deceased person is governed entirely by the lex loci and it is only when the administration is over that the law of his domicile comes in."
30. I was also referred to a first instance authority in the British Virgin Islands to similar effect, and to the decision of the House of Lords in New York Breweries Co. Ltd v Attorney General [1899] AC 62.'
Causes of action two and three
Causes of action one and four
'50. As mentioned in para 20 above, "The administration of a deceased person's assets is governed wholly by the law of the country from which the personal representative derives his or her authority to collect them". It seems to me that the question whether the claimant is to be considered to have acquired title to the deceased's cause of action against the defendants as the executrix appointed under his will is properly characterised as one relating to the administration of a deceased person's assets. It appears to me, too, that, notwithstanding that the claimant obtained a grant of probate in New South Wales, it is from this jurisdiction that she derives her authority to collect assets here: after all, a foreign grant of representation is not without more recognised as having any force in England and Wales. That being so, the law of England and Wales is, I think, to be applied to the issue of whether the claimant acquired title to the deceased's estate on his death and New South Wales law on the point is immaterial.'
'If there is no property of the deceased to be administered in England, the executor's or administrator's oath which accompanies the application for a grant must state the reason why it is required, e.g. to constitute a personal representative to take or defend legal proceedings, or to obtain foreign representation'.
Conclusion