Duk v Ugx

• Jurisdiction: British Virgin Islands
• Judge: Mithani J
• Judgment Date: 10 July 2025
• Judgment citation (vLex): [2025] ECSC J0710-4
• Docket Number: CLAIM NO: BVIHPB 2024/0170
• Court: High Court (British Virgin Islands)
• Year: 2025

In the Estate of SSQ (Deceased, Testate)

In the Matter of Section 11 of The Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80)

And in the Matter of Section 116 of the England and Wales Senior Courts Act 1981

And in the Matter of Rules 45 & 47 of the Eastern Caribbean Supreme Court (Non-Contentious Probate and Administration of Estates) Rules 2017

And in the Matter of An Urgent Application of BNU for a Grant of An Order to Appoint Her as An Administrator Ad Colligenda Bona

And in the Matter of An Application of BNU for a Discretionary Grant of Letters of Administration in the Estate of SSQ (Deceased, Testate)

Between:

ATH

Applicant/Respondent

and

BNU

Respondent/Applicant

In the Matter of UGX and THA

In the Matter of Section 184C of the BVI Business Companies Act 2004

Between:

DUK (in the names and on behalf of)

(1) UGX

(2) THA

Applicant

and

(1) UGX

(2) THA

Respondents

(3) WKU

(4) ZPP

(5) AUZ

Additional Respondents

[2025] ECSC J0710-4

CLAIM NO: BVIHPB 2024/0170

CLAIM NO: BVIHC(COM) 2024/0358

THE EASTERN CARIBBEAN SUPREME COURT

THE HIGH COURT OF JUSTICE

COMMERCIAL DIVISION

Mr Paul Mitchell KC (instructed by M.K. Solicitors LP) and, with him, Mr Martin Kenney of M.K. Solicitors LP, for BNU / DUK

Mr Dakis Hagen KC (instructed by Ogier) and, with him, Mr Nicholas Burkill, and Ms Holly Challenger, both of Ogier, for ATH / AUZ

Mr Timothy Collingwood KC (instructed by Appleby (BVI) Ltd) and, with him, Mr Daniel Mitchell and Ms Fay O'Halloran, both of Appleby (BVI) Ltd, for UGX AND THA

Mr Richard Millett KC, and with him, Dakis Hagen KC (both instructed by Ogier), Mr Nicholas Burkill, and Ms Holly Challenger, both of Ogier, for WKU, ZPP, and ATH / AUZ, the additional respondents

INTRODUCTION, BACKGROUND, AND ISSUES

1 Mithani J [AG]: The dispute, which forms the subject of these proceedings, is between two sisters, BNU / DUK (referred to only as BNU throughout) and ATH / AUZ (“referred to only as ATH throughout), in respect of the division of the estate of their late father (“SSQ”). BNU and ATH are the only two children of SSQ.

2 The wider dispute between the parties also involves individuals and entities related to, or connected with, BNU and ATH. In the case of BNU, they include three BVI trusts (“the BVI Trusts”) in which BNU is alleged to have an interest, namely the A Trust, the B Trust, and the C Trust. ATH alleges that a substantial amount of the money or other assets of the BVI Trusts emanated from their late father's estate and for which she claims BNU must account fully to the estate. In the case of ATH, they include ATH's husband, WKU (“WKU”); ZPP, the company of which WKU is the Executive Chairman; and the “UGX Trust”, a trust settled on discretionary terms for (among others) ATH and her descendants (“the UGX Trust”), which owns 70% of the shareholding in UGX and THA, both registered in the BVI.

3 For the sake of convenience, any reference I make to BNU shall include a reference to one or more of the three BVI Trusts (or any company or entity controlled by them), as the context may require; any reference I make to ATH shall include the UGX Trust (or any company or entity controlled by either ATH or the UGX Trust), as the context may require; and, any reference I make to WKU or ZPP shall include either or both of them (or any company or entity controlled by them), also as the context may require.

4 SSQ died in France on 20 November 2021. He was domiciled in Panama at the date of his death.

5 SSQ executed a holograph will (“the Will”) while he was in Greece on 1 September 2021. The Will named SSQ's cousin (“E”) as executor. However, E has renounced his right to apply for probate.

6 SSQ's assets in the BVI (“the BVI Estate”) included his shareholding in UGX and THA. The Will bequeathed 30% of SSQ's shares in each of UGX and THA to BNU and the remaining 70% to ATH.

7 The relevant terms of the Will state as follows:

“I leave my property as follows:

1. My maritime interests

• a. In the company THA

  70% to my daughter ATH and

  30% to my daughter BNU

• b. In the company UGX

  70% to my daughter ATH and

  30% to my daughter BNU.

• c. In my other maritime interests together with undistributed profits … 100% to my daughter BNU.”

8 On the same day as the Will was executed, SSQ executed a codicil (“the Codicil”), the relevant terms of which stated:

“MY WISHES

This last will is based on monetary values and current evaluations

I want my property to be shared by 50%-50% to each one.

I also wish my daughters to arrange for their mother N and my partner O to live with the same monetary style. Each one of them must have the same way of life, not to cause any jealousy and injustice.”

9 The validity of the Will and Codicil (“the Testamentary Dispositions”) is not in dispute 1. However, their precise meaning and extent are or are likely to be.

10 What is also not in dispute (at any rate, for the purpose of the determination of the various matters before me) is that a “truing-up” (or, as I prefer to call it “equalisation”) exercise will need to take place as a result of the terms of the Codicil, the effect of which appears to be to ensure that SSQ's worldwide net estate is shared equally between BNU and ATH. However, the consequence of this exercise is said by ATH to be an unknown quantity because it will involve BNU having to bring into account against her share of the estate what she has already received, or will receive, by way of 100% of SSQ's “other maritime interests”, which are bequeathed to her under the terms of the Will. ATH says that this could include (at least) US$ 116 million, alleged to be in the BVI Trusts that are alleged by ATH to be in the control of BNU, in which her descendants are the beneficiaries or potential beneficiaries.

11 Shortly before SSQ's death, ATH and BNU, in their capacity as SSQ's attorneys-in-fact, transferred 70% of SSQ's then shareholding in each of UGX and THA, at the request of ATH, to the trustee of the UGX Trust to reflect what SSQ had bequeathed to ATH by the terms of the Will. This was allegedly done in order to mitigate potential US tax liability chargeable to ATH as a result of her inheritance of the 70% shareholding of UGX under the terms of the Will. This transaction was, apparently, based on a plan formulated by a Mr Yof Crowe LLP (New York) (“Crowe”). BNU was allegedly informed by WKU and ZPP, as well as Mr Y, that the purpose of the transfer was to save tax for ATH in line with advice said to be given to WKU and ZPP by Crowe. BNU fully cooperated with ATH and WKU to enable the transfer to take place so ATH could save or mitigate any liability to US tax which might otherwise be payable by her on the inheritance.

12 UGX holds or held, through its various BVI subsidiaries, several valuable vessels, which BNU claims were sold by it at a gross undervalue to ZPP and on terms which were commercially unattractive or did not make any commercial sense.

13 In respect of THA, BNU claims that THA advanced capital to make investments in assets owned by a Liechtenstein foundation called “X Foundation”, a trustee of a trust of which WKU's father was the sole lifetime beneficiary. The investments were made pursuant to a “Master Equity Tracker Fee Agreement” (“Master ETFA”). In 2020, the obligations under the Master ETFA were novated to ZPP. According to my understanding of BNU's case, it was subsequently agreed that all rights and obligations of ZPP and THA in respect of the investments would be replaced by a single obligation: ZPP would pay THA US$72 million. BNU states that THA's directors have breached (and remain in breach of) their duties to that company by failing to take steps to recover the sum due and owing to THA by ZPP.

14 ATH and BNU cooperated to obtain a European certificate of succession for the European assets of SSQ outside the BVI. They had reached compromises in relation to those assets to enable that to be done. However, the administration of the BVI Estate remains outstanding.

15 On 16 July 2024, BNU applied, ex parte, to the Probate Court in this territory (“the Probate Court”) for the appointment of herself as administrator ad colligenda bona (“AACB”) of the BVI Estate.

16 By para. 2 of the application (“the Common-form Application”) 2 for the making of the order appointing her as AACB, BNU sought the following powers:

• “i. To be registered as the legal holder of all the shareholdings held by SSQ, in THA and UGX, and to exercise all rights as

  a shareholder;

• ii. To apply for leave to bring a derivative action under s. 184C(1) of the BVI Business Companies Act 2004 (the “BCA 2024”) (including the right to seek interim relief under s.184C(5) of the BCA 2004); and to pursue or defend such derivative action should leave be granted – as well as any related proceedings within or without the Territory of the Virgin Islands; and

• iii To complete all tasks which BNU in her capacity as administrator ad colligenda bona deems necessary to preserve SSQ's BVI estate's assets.”

17 The grounds upon which the application for the appointment of BNU as AACB were made are summarised by BNU in her notice of application in the following terms:

“5. The Applicant is one of the daughters of the deceased, and the sole beneficiary of the BVI portion of the deceased's estate.

6. The named Executor in the Will, E renounced his Executorship on 28 November 2022.

7. The deceased's surviving spouse has failed to take any steps to administer the estate and has waived her rights to a share of the estate under forced heirship laws of Greece.

8. The BVI portion of the deceased's estate is yet to be administered.

9. There is a real risk that the value of the estate's assets will be significantly diminished if the Orders sought are not granted …”

18 The application came before Young J on 16 July 2024. She made the order appointing BNU as AACB under r. 45 and/or r. 47 of the ECSC (Non-Contentious...