On 17 February 2025, the BVI Court recognised a Committee, appointed by the Hong Kong Court of First Instance, with responsibility over the financial affairs of a family member who lacks capacity and has movable assets in the BVI.
In the BVI, it is well established that the Courts may recognise foreign money judgments, grants of probate, appointments of foreign insolvency office holders and foreign commercial receivership orders.
It has been less clear, however, on what terms the BVI Court will recognise the foreign appointment of a curator or committee to take proceedings in the BVI to recover property and or manage the affairs of a person lacking capacity. The advantages to seeking recognition of the foreign appointment principally include that it would expedite the curator's functions without the need for a further assessment of the individual's capacity.
First, the BVI Court should have jurisdiction if the person lacking capacity has property in the BVI although not actually present in the country. Those assets may include shares in a BVI company.
Secondly, it is important to establish a sufficiently close connection between the person lacking capacity and the foreign country that originally appointed the curator. That connection may be by way of citizenship or residence.
Thirdly, the BVI Court has co-existing statutory and common law power to recognise the foreign appointment. Section 38 of the BVI Mental Health Act 2014 provides, with respect to foreign appointments, a mechanism for, "direct[ing] any stock standing in the name of that other person or the right to receive dividends with respect to that stock to be transferred into the name of the person so appointed." On the other hand, the common law is of much wider ambit and allows for recognition of a foreign mental health appointment more generally.
Careful navigation of these principles can ensure both an expeditious and efficient recognition and appointment process in the BVI.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
