Sentence of the High Court of Justice Chancery Division
Vice Chancellor Court
31 July 1985
in the case In Re-Estate of Christopher William Adams / (deceased)
Judge : Sir Nicholas Christopher Henry Browne Wilkinson
Judgment
HAROLD CHRISTOPHER ADAMS v BERYL DOREEN ADAMS (widow)
VICE CHANCELLOR
In this case I have to determine who is entitled to two apartments at
Alicante in Spain which form part of the estate of Christopher William
Adams ("the Testator").
The Testator died on 3 April 1982. By clause 3 of his Will he
bequeathed to his wife, the defendant absolutely "all my real and
personal property whatsoever and wheresoever and especially my
property in Spain". The Testator was survived by the defendant and his
son, the plaintiff. The Testator was domiciled in England and Wales
and it is agreed that the law of his nationality is English law. The
respective rights of the plaintiff and the defendant in the Spanish
property depend upon whether the succession to that property falls to
be determined according to the domestic law of England or of Spain. If
English domestic law applies, the defendant will take the Spanish
property absolutely; if Spanish domestic law applies, the plaintiff
will be entitled to a compulsory ****tion (legitimas) of two thirds of
the Spanish property, the defendant taking only the remaining one
third. The case is therefore concerned with problems of private
international law and in particular with the doctrine of renvoi.
Before explaining the problem, I will define the terms which I am
going to use. I will use the words "domestic law" to mean the internal
law of the country as it would apply if the Testator had died
domiciled in, and was a national of, the country in which the property
in question was locally situated i.e. so as to exclude the private
international law rules of that country. I will use the words "the
whole law" to mean the domestic law and the private international law
of that country.
There is no dispute before me as to the relevant law of England. The
Testator having died domiciled here, the Will takes effect in
accordance with the whole law of England. Under the rules of private
international law, the succession to the Spanish property is
determined by the lex situs meaning the whole law of Spain, I
therefore have to decide the case in exactly the same way as it would
be decided by the Supreme Court of Spain. The English law has been so
stated in a number of cases at first instance, in particular re Ross
(1930) 1 Ch 377 and re Duke of Wellington (1947) Ch 506. The law as so
established at first instance raises certain conceptual and practical
difficulties (see Dicey and Morris on Conflict of Laws, 10th Edition p.
69) in a higher court.
I have therefore to determine what is the whole law of Spain which a
Spanish judge would apply. Under Article 9.8 of the preliminary title
to the Spanish Civil Code, succession to all property, whether movable
or immovable and whether situate is determined by the law of the
deceased=92s nationality i.e. in this case English law. The question is
whether he would apply English domestic law only (in which case the
defendant alone would be entitled) or the whole of English law, in
which case English law would again remit the matter to Spanish law. It
appears to be common ground between the experts that if the Spanish
Court applies the whole of English law then on the further remission
by English law to Spanish law the Spanish judge would apply Spanish
domestic law only (i.e. the plaintiff would get his two thirds
****tion). On the face of it, the question of Spanish law which I have
to decide is exactly the same as that which, with manifest reluctance,
Wynn Parry K. decided in the Duke of Wellington case. He decided that
the Spanish Supreme Court would hold that the succession to immovable
property in Spain of an English national would be determined in
accordance with English law i.e. Spanish law did not recognise a
doctrine of renvoi. But since the decision in the Duke of Wellington
case, the Spanish Civil Code has been substantially amended so that,
for the first time, it deals specifically with the question whether,
under the rules of Spanish private international law, the doctrine of
renvoi is to be applied. As will appear, such new specific provision
in the Code is itself very obscure and there is no decision of the
Supreme Court of Spain (the only binding decision in Spanish law) or
any other court since the new provision was made. I therefore approach
the task of stating what is the present law of Spain in this difficult
field with at leas as much reluctance and diffidence as did Wynn Parr
J..
On the expert evidence the starting point is tha prior to 1974 it was
an undecided question of Spanish law whether the doctrine of renvoi
was applicable to succession : there were conflicting decisions in the
lower courts but none in the Supreme Court.
It was in those cir***stances that the Law of Bases was passed. This
law is what we could can an enabling Act, under which the government
could by decree amend the Preliminary Title to the Spanish Civil Code
in accordance with seven "bases" or guidelines. In relation to the
rules of Private International Law, it provided as follows:
"hereditary succession shall be governed by the national law of the
deceased at the time of his death, regardless of the country in which
the assets are situated."
It also provided expressly in terms of what subsequently became
Article 12.2 which I will set out hereafter.
The authorised amendments to the Preliminary Title were made by a
Decree dated 31 May 1974. The Amended Preliminary Title is divided
into chapters, Chapter 4 is headed "Rules of Private International
Law" and contains a series of articles (numbers 8-11) setting out the
principles of Spanish Private International Law as they apply to
various cl***** of problem.
The scope of article 9 is set out in article 9.1 as follows: "The
personal law of natural persons shall be that deterined by their
nationality. The said law shall govern capacity and civil status,
family rights and duties and succession by reason of death."
Succession is specifically dealt with by article 9.8 as follows:
"8. Succession by reason of death shall be governed by the national
law of the de cujus at the time of his death, irrespective of the
nature of the assets. However, testamentary dispositions and
succession covenants which conform to the national law of the testator
or covenantor at the time at which they are made shall continue to be
valid even if the succession is governed by another law, although the
compulsory ****tions, if any, shall be governed by the latter law."
There is no dispute that under article 9.8 the succession to the
Spanish property falls to be determined by English law, being the law
of the Testator=92s nationality. The question is whether article 9.8, in
referring to English law, is referring to the domestic law of England
or the whole law of England.
Article 12 contains certain general principles to be applied in giving
effect to the Spanish rules of Private International Law. The crucial
provision is article 12.2 which provides:
"2. Reference to a foreign law shall be deemed to be a reference to
the substantive law, the the exclusion of any renvoi by the conflict
rules thereof to a law other than Spanish law."
It is common ground between the experts that the words "substantive
law" mean the domestic law of a country as opposed to the whole law of
that country.
The dispute between the experts is as to the way in which the Spanish
Supreme Court would apply article 12.2. Se=F1or Barrero (the Defendant=92s
expert in Spanish law) emphasises the illogicality inherent in article
12.2 He points out that the first part of article 12.2, by making the
Spanish Court refer to the domestic law of the foreign country,
logically excludes any possibility of the doctrine of renvoi arising
since such doctrine cannot form part of the domestic law of the
foreign country. Yet the second part of article 12.2 plainly envisages
that a limited renvoi may apply i.e. the laws of the foreign country
may remit the matter to Spanish law and the Spanish court may in
certain cir***stances accept such remission. Se=F1or Barrero=92s view is
that under Spanish Law the Court, although entitled to decide to
accept such remission, is not bound to do so; when the matter comes
before the Spanish Supreme Court in his view it will decide whether it
would be in accordance with the general principles of Spanish Law to
accept the remission by the foreign law back to Spanish law. The, says
Se=F1or Barrero, the acceptance by a Spanish Court in cases of
succession to property of an English national would offend the basic
concept of unity of succession fundamental in Spanish Law.
The concept of unity of succession is that enshrined in article 9.8
i.e. one law (the national law of the deceased) shall govern the
succession to all property of a deceased person irrespective of the
nature or situation of the property in quesiton. By adopting this
concept, Spanish law seeks to avoid the frustration of a Testator=92s
wishes inherent in allowing different laws to regulate the succession
to different parts of his estate, thereby failing to give effect to
the Testator=92s express or presumed intentions. So, says Se=F1or Barrero,
in a case such as this the Spanish Supreme Court, not being bound by
article 12.2 to hold that the doctrine of renvoi should apply, would
give effect to the basic concept of unity of succession by reference
to the law of the nationality and hold that the succession was
regulated by the domestic law of England.
The Plaintiff=92s expert. Se=F1or Abando, does not agree. He accepts that
there is a basic illogicality in article 12.2 but considers that its
effect is to require the Spanish Supreme Court to apply the doctrine
of renvoi whenever the foreign law remits the matter for decision to
Spanish law. He finds sup****t for his opinion in the views of a
Spanish Jurist, Se=F1or Santonja, who certainly treats article 12.2 as
requiring the Spanish Court to accept the remission from English law.
He also considers that the principle of unity of succession is not
absolute and points to cases where the law regulating the capacity of
the Testator, the inherent validity of the Will and rights of
succession under the Will are all different.
I am faced with the difficult task of choosing between these
conflicting views in seeking to determine how the Spanish Supreme
Court would decide the point. I must try to bear in mind that the
drafting of the Spanish Civil Code and the method by which the Spanish
Court would apply such code differ fundamentally from the drafting and
principles of construction applicable to an English statute. As I
understand the evidence. the Spanish court seeks to find the law first
by applying the written law (if it is mandatory and clear), next by
giving effect to the unwritten law (i.e. decisions of the Supreme
Court and the opinions of eminent jurists) and finally by giving
effect to the general principles of Spanish law (such as for example,
the concept of unity of succession).
Looking first at article 12.2, both experts are agreed that it is
confusing and illogical. It seems to me clear that the basic approach
of the article is to exclude the doctrine of renvoi since the
reference is initially to the domestic law of the foreign country. I
do not read the latter part of =85=85=85accept a renvoi to Spanish Law. At
most, it authorises such acceptance. All that is clearly prohibited by
article 12.2 is the transmission of the question to yet a third system
of law i.e. if Spanish law applies English law and English law would
apply the law of France, article 12.2 prohibits the Spanish court from
applying the law of France. I am fortified in this view by the fact
that article 12 contains general rules applicable to all cases where
questions of Private International Law may arise not merely to cases
of succession. I feel it improbable that the Code was intended to
fetter the Supreme Court so as to require it to adopt the doctrine of
renvoi in all the different types of case in which it might arise.
Next. as to the unwritten law. As I have said, there are no decisions
on the effect of the provisions of article 12.2 by the Spanish courts
at any level. As to the views of Se=F1or Santonja, he certainly regards
article 12.2 as requiring the succession to the immovable property in
Spain of an English national to be regulated by the domestic law of
Spain. But, so far as I can see, he simply assumes this to be the
effect of article 12.2 without explaining why he olds that view.
Finally, as to the general principles of Spanish law both experts
agree that unity of succession according to the law of nationality is
a basic principle of Spanish law. To apply Spanish law to the
immovable property in Spain of a foreign national would run contrary
to such a principle. I cannot accept Se=F1or Abando=92s attempts to limit
the scope of such principle. He has demonstrated that a different
system of law may apply to testamentary capacity or inherent
validity on the one hand from that which applies to succession on the
other. But he has not referred me to a single example of a case where
Spanish law has applied anything other than one system of domestic law
to the succession to all property comprised in one estate. For a
Spanish court to hold in this case that Spanish domestic law applied
to the Testator=92s immovable property in Spain but that English
domestic law applied to the Testator=92s movable property in defiance of
the Testator=92s explicit wishes would run counter to this basic
principle.
Since in my judgment there is no mandatory requirement in article 12.2
binding the Spanish Court to apply the doctrine of renvoi and accept
remission from the English law, in my judgment it would decide the
question so as to give effect to the basic concept of unity of
succession. For that reason, although with great hesitation and
difficulty=85.the Spanish Supreme Court if it were seized of this case
would hold that the Testator=92s Spanish property devolves in accordance
with English domestic law i.e. to the Defendant absolutely free from
any claim by the Plaintiff under Spanish law to a ****tion.
I accordingly dismiss the action.
NOTES on the Adams case
Note 1: Adams was domiciled in England. In the Denney case, the
testator was domiciled in Spain and the whole estate would have been
dealt with under Spanish law if the renvoi had been accepted. It is
difficult to see how the argument used above that "unity of
succession" might be broken could be sustained in the Denney case.
UNPUBLISHED. Cited in Denney Case - Spanish Supreme Court 27 May 1999;
discussed at (1998) 23 Int. Legal Prctr. 48)
Orig. posting:
http://web.onyxnet.co.uk/antony.anderson-onyxnet.co.uk/adams=
..htm
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