International disputes over wills are no longer the preserve of the super-rich

For many the words 'probate', 'wills' and 'executors' bring to mind the cliché of a dark and dusty room in a solicitors office, Victorian dress codes and even more antiquated Court procedure. But the modern litigator knows that this could not be further from the truth. The combination of close relations, death and money is often more than many families can bear. Throw in a liberal helping of sex, drugs and the aristocracy, and there's enough to keep the redtops happy for weeks at a time. The latest such example in recent weeks has been the breakdown in the relationship between the various members of the Lambton family.

Lord Lambton famously retired from political life when photographed in bed with two prostitutes smoking marijuana in the mid-seventies. While there might be a degree of sympathy for his plea that he resorted to prostitutes because of the boredom and drudgery of junior ministerial life, Lord Lambton left the UK and lived the last 30 odd years of his life in a splendid villa in Italy. He left his entire estate to his son Ned, the 7th earl of Durham, and nothing to his ?five daughters.

Only lawyers benefiting

Three of the daughters have issued proceedings in Italy, where inheritance rules are different to the UK and where they claim an entitlement to a significant share each in their father's estate. Ned, the son and heir, has issued proceedings in the UK seeking to have the dispute resolved here. Last week Lord Justice Etherton ordered Lord Durham to pay £750,000 of his own and his sisters' costs and ordered him to provide a more specific list of what assets he contends should be protected under English law. The judge's earlier warning that only lawyers were benefiting from the action appears to have been well-founded.

Contrary to the Jarndyce perception, cases raising international issues of jurisdiction and applicable law arise surprisingly frequently. The last fifty years, particularly with the advent of easy and inexpensive foreign travel and a willingness to move considerable distances to take up jobs and career opportunities and acquire assets of significant value abroad, have seen an equivalent rise in the number of disputes about ?foreign property and assets, not only among the living (for example, the rise in 'international' divorces being tried in the UK) but also on death.

A good example of the sort of use that is made of foreign jurisdictions was the attempt made by the defendants in Morris v Davis to use the Belgian courts to achieve their ends. The deceased, who had fallen out with his family, died abroad '“ he lived in France, shared a home with his fiancée in Belgium but held an English passport. The simple attempt by his executor to obtain a grant of probate in England had been before the English court for over a year and was about two months shy of a week-long trial on the issue of domicile, when the defendants (members of his family with whom the deceased had fallen out) issued proceedings in Belgium seeking summary judgment about ten days prior ?to the English trial. What did they hope to achieve?

More demanding requirements

There were two potential benefits. In Belgium, the formal requirements for a will are much more demanding than in the UK and they hoped that the Belgian court would declare the will invalid. Further, the Belgian inheritance laws are such that a significant portion of the estate would pass to the family defendants. Mrs Justice Asplin, however, granted an anti-suit injunction to prevent the family from pursuing the Belgian claim until after the domicile trial (which the family defendants subsequently lost).

In other instances, there is what can often appear to be an unseemly race in Europe-based cases to issue proceedings here to ensure that the UK courts are seized of the matter before any other European jurisdiction becomes involved.

The critical factors for clients are to ascertain rapidly which jurisdictions might be relevant; what the advantages of each might be to any interested party; and how to ensure that the dispute is heard by the court of the client's choice. As Ned Lambton has noted, there are many advantages in the UK courts, not least the speed with which disputes can be resolved together with the quality of the judicial minds that will reach the decision needed. Why would you prefer 'expensive and slow proceedings in Italy'? If anyone is wondering, the present estimate is that the Lambton's action in Italy would not be finally resolved in Italy for between fifteen and twenty years. For those who don't set foot in the Rolls Building, it would be dealt with very much faster there.