Sheikha Amena Ahmed H A Al-Thani and another v Sheikha Aisha Mohammed Ali Abdullah Al Thani and 2 others (Virgin Islands)

For private international law purposes, company shares are incorporeal movables. Succession to movable property is generally governed by the deceased’s domicile at death; the lex situs governs succession to immovables and proprietary matters such as title and transfer.

Section 245 of the Business Companies Act 2004 fixes the situs of BVI company shares in the Virgin Islands only for determining matters relating to title and jurisdiction. It does not turn shares into immovables or displace the ordinary succession rule. Accordingly, the law of the owner’s domicile governs a will transmitting the shares, and section 7 of the Wills Act 1872 does not apply.

A Qatari national domiciled in Qatar died owning shares in one or more British Virgin Islands companies. His testamentary instrument was valid under Qatari law. His widow and children obtained letters of administration over his BVI estate without disclosing the will. The respondents, beneficiaries under the will, later sought revocation of the grant and probate of the will.

Ellis J held that the Qatari judgment confirming the will was conclusive as to movable property and rejected the argument that section 245 of the Business Companies Act 2004 made company shares immovable property. The Court of Appeal dismissed the appeal and held that the shares remained movable for succession purposes. The central issue before the Board was whether section 245 required the formal validity of the will to comply with section 7 of the Wills Act 1872.

The appeal was dismissed. The Board agreed with Ellis J and the Court of Appeal that section 245 of the Business Companies Act 2004 did not make shares in a BVI company immovable property for succession purposes.

1. Statutory interpretation. The Board applied the approach stated in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349 and R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255. Statutory words must be read in their statutory and historical context and interpreted to give effect to legislative purpose. Extrinsic materials are secondary aids. Clear words are required to abrogate a long-standing rule of law.
2. Meaning and purpose of section 245. Its words fix the situs of shares, debt obligations and securities in the Virgin Islands only for determining matters relating to title and jurisdiction. They do not state or imply that shares are to be recategorised as immovables for private international law. The historical structure of the 1984 and 2004 legislation showed a purpose of removing uncertainty about the situs of shares and securing BVI jurisdiction over title questions. It did not disclose an intention to alter succession law.
3. Conflict-of-laws consequence. Shares are incorporeal movables. The lex situs governs proprietary matters such as transfer and security, but succession to movables is generally governed by the deceased’s domicile. Section 245 therefore did not displace Qatari law as the law governing the formal validity and enforceability of the will in relation to the shares.
4. Disposition. The will’s non-compliance with section 7 of the Wills Act 1872 did not invalidate its dispositions of the shares. The Board advised His Majesty that the appeal should be dismissed.

• Privy Council: In [2024] UKPC 35, the Board dismissed the appeal and upheld the conclusion that BVI company shares are movable property for succession purposes.
• Court of Appeal of the Eastern Caribbean Supreme Court: On 23 March 2022, the court dismissed the appellants’ appeal. It held that the Qatari judgment created an issue estoppel and that section 245 fixed the situs of shares for title and jurisdiction, not succession.
• BVI High Court: On 12 January 2021, Ellis J held that the Qatari judgment was conclusive as to the will’s validity for movable property in the BVI and rejected the contention that section 245 made the shares immovable.