Tadros & Anor v Barratt & Ors, Court of Appeal - Chancery Division, August 21, 2014, [2014] EWHC 2860 (Ch)

Resolution Date:August 21, 2014
Issuing Organization:Chancery Division
Actores:Tadros & Anor v Barratt & Ors
 
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Neutral Citation Number: [2014] EWHC 2860 (Ch)

Case No: HC13C01197

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

IN THE ESTATE OF WEDAD TADROS (DECEASED)

Rolls Building,

Fetter Lane, London, EC4A 1NL

Date: 21/08/2014

Before :

MR JUSTICE MORGAN

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Between :

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Mr Richard Dew (instructed by Kingsley Napley LLP) for the Claimants

Mr Richard Wilson (instructed by Boodle Hatfield LLP) for the Ninth Defendant

Hearing date: 2 July 2014

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Mr Justice Morgan:

Introduction

  1. This is an application for an anti-suit injunction made in the course of current proceedings in England which concern the estate of the late Wedad Tadros (``the deceased''). The deceased left a number of purported wills. Although the validity of these purported wills is challenged, I will refer to them as ``wills'' without any pre-judgment as to whether they will in due course be held to be valid or of no effect. In particular, these wills include a will which has been referred to as ``the English will'' and another referred to as ``the Dutch will''.

  2. The current proceedings in England were initially confined to issues arising in relation to the English will. The proceedings were later amended to include issues arising in relation to the Dutch will. The Second Defendant to the English proceedings is the sole beneficiary under the English will and she is the sole executrix, but not a beneficiary, under the Dutch will. The sole beneficiary under the Dutch will is a Dutch stichting, Stichting Dr Basile Khoudokormoff Charitable Foundation for Orphans, to which I will refer as ``the Foundation''.

  3. When the English proceedings had been continuing for about a year, the Second Defendant and the Foundation brought proceedings in the Netherlands (against the Claimants in the English proceedings) seeking a determination of the issues which arise in relation to the Dutch will. The Claimants in the English proceedings now seek an anti-suit injunction against the Second Defendant and the Foundation restraining them from continuing the Dutch proceedings.

  4. Mr Dew appeared on behalf of the Claimants and Mr Wilson appeared on behalf of the Ninth Defendant. I am grateful to counsel for their clear and helpful submissions. The Second Defendant had instructed solicitors, Withers LLP, who wrote to the court shortly before the hearing to set out the Second Defendant's position. I will refer to that position later in this judgment.

    The parties

  5. The deceased was born in Khartoum, Sudan on 14 April 1946. She married Dr Basile Khoudokormoff in London on 16 June 1973. He was said to be of Russian origin but born in Belgium and at the time of his marriage he was a Dutch national. He died on 23 September 2010. The deceased died on 26 October 2012. At the time of her death, she was a Dutch national, resident in London.

  6. There is a dispute as to the domicile of the deceased at the date when she executed or purported to execute the English will and the Dutch will. The Claimants say that the deceased had an English domicile on those dates. The Second Defendant and the Foundation say that the deceased was domiciled in the Netherlands at the relevant times. The domicile of the deceased is relevant to a number of issues which potentially arise in relation to both the English will and the Dutch will. The parties have filed substantial evidence in relation to the dispute as to the deceased's domicile. It is simply not possible on this interlocutory application to form a view as to the correct legal answer as to the domicile of the deceased.

  7. The deceased left assets in England, the Netherlands, France and the Sudan and she was connected with a trust or an anstalt in Liechtenstein. She made wills dealing with some of her English assets, and some or all of her assets in France and the Sudan. She also sought to make a will in relation to the trust or anstalt in Liechtenstein. There is a dispute as to whether the Dutch will, if valid, deals with her assets worldwide or only her Dutch assets.

  8. The Claimants are two of the brothers of the deceased. The evidence suggests that the First Claimant lives in Greece and the Second Claimant lives in England.

  9. The First Defendant apparently witnessed the English will of the deceased. He has been described as a will writer and his fiancée, Catherine Sergeant, also apparently witnessed the will of the deceased. The English will named the First Defendant as the executor but he renounced his executorship on 24 April 2013 and the present proceedings have been discontinued as against him.

  10. The Second Defendant is the niece of the deceased and is the sole beneficiary under the English will. She is the sole executrix, but not a beneficiary, under the Dutch will. She lives in Athens, Greece.

  11. I understand that the Third to the Eighth Defendants are relatives of the deceased. The claim form identifies their addresses at various locations in the Sudan, United Arab Emirates and England.

  12. The Foundation (which has been joined as the Ninth Defendant) is a Netherlands stichting or foundation. The Dutch will provided for the creation of this foundation. Although there is a dispute as to the validity and effect of the Dutch will, the Foundation was registered on 6 November 2013 in the Commercial Register in the Netherlands. The parties before me accepted that the Foundation now exists in Dutch law. The Dutch will provided for the articles of association of the Foundation. I was told that on 12 February 2014, the Foundation amended its articles of association. The original articles provided that the purpose of the Foundation was to provide support or care for orphans in South Sudan. The amended articles now provide that the Foundation may also provide such support or care for orphans in another country if, for one or more reasons, the Foundation cannot achieve its original purpose in South Sudan. The Foundation's website refers to an intention to set up an orphanage in central or eastern Europe.

  13. Upon registration of the Foundation, the Second Defendant became its sole director. On 24 January 2014, a Mr Sempel was appointed as a second director. The Claimants suggest that Mr Sempel is somehow or other not a real director of the Foundation but I am in no position to evaluate that suggestion. On 13 April 2014, the Second Defendant ceased to be a director of the Foundation leaving Mr Sempel as the sole director. Since January 2014, the Second Defendant and the Foundation have been separately advised and represented.

    The English will

  14. The document described as the English will states that it was signed by the deceased on 13 September 2010. It is the Second Defendant's case that the deceased actually signed this will on 14 May 2011. If that is so, then this will was executed following the death (on 23 September 2010) of the deceased's husband although the will is drafted on the basis that he was then still alive. The English will contained the following potentially relevant provisions:

    (1) it recited that the deceased jointly owned, with her husband Dr Khoudokormoff, the lease of the flat at 167 Oakwood Court, London;

    (2) the deceased stated that she and her husband were each other's sole heirs;

    (3) the deceased stated that she was in full possession of all her mental capacities;

    (4) she revoked all earlier testamentary dispositions;

    (5) the will did not deal with any assets apart from the leasehold interest in Flat 167, Oakwood Court and the contents of that flat;

    (6) the will provided that if the deceased died before her husband, then she left to him her share of the lease and if she should survive her husband, she left the lease and the contents to the Second Defendant;

    (7) the will appointed Mr Barratt (the First Defendant) as the executor;

    (8) the will contained directions as to her funeral and burial.

    The letter of wishes

  15. The documents before me include a 6 page letter of wishes which bears the name of the deceased, but not her signature, and which is dated 13 September 2010. It is not necessary for present purposes to refer to very much of this letter. The letter describes the deceased's relationship with the Second Defendant. The letter also declares an intention to move to reside in Holland in the near future. Further, the letter describes the wish of the deceased's husband to set up a foundation in Holland to run an orphanage in Southern Sudan to bring up orphans in a decent Christian way and that the intention was to use the real property owned in Holland to fund the foundation.

    Issues as to the English will

  16. The following are the principal issues as to the English will:

    (1) whether the will was properly executed;

    (2) whether the deceased lacked testamentary capacity when she purported to execute the will;

    (3) whether the deceased knew and approved the contents of the will;

    (4) whether the English will was revoked by the Dutch will;

    (5) the Claimants reserve the right to allege that the will is a forgery and/or that it was procured by undue influence.

    The Dutch will

  17. The Dutch will was signed by the deceased on 27 May 2011 at the Dutch embassy in London. Her signature was witnessed by a Mr Westhoff who was a consular official there and who, the Second Defendant contends, acted as a Dutch civil law notary. Although the deceased's husband had died on 23 September 2010, the Dutch will is drafted on the basis that he was then still alive.

  18. The text of the Dutch will is partly in Dutch and partly in English. I understand that under Dutch law, the articles of association of a stichting must be expressed in Dutch. The Dutch will contained the following potentially relevant provisions:

    (1) the deceased stated that she was of sound mind and made the will of her own free will;

    (2) she revoked any and all wills and testamentary dispositions previously made by her and declared this...

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