Al-Bassam v Al-Bassam
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Hart,MR. JUSTICE LEWISON,Mr Justice Hart |
| Judgment Date | 02 October 2003 |
| Neutral Citation | [2002] EWHC 2281 (Ch),[2003] EWHC 2278 (Ch) |
| Docket Number | No.HC02C00630,Case No: HC02C00630 |
| Court | Chancery Division |
| Date | 02 October 2003 |
[2002] EWHC 2281 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Hart
Case No: HC02C00630
In the Matter of Abdulaziz Saleh Al-Bassam (Probate)
Mr Thomas Lowe (instructed by Mishcon de Reya of Summit House, 12 Red Lion Square, London WC1R 4QD) for the Claimant
Mr Charles Aldous QC and Mr Andrew de la Rosa (instructed by Macfarlanes of 10 Norwich Street, London EC4A 1BD) for the Defendant
Hearing dates: 2 nd—3 rd October 2002
Hand-down Judgment 6 th November 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Hart
By these consolidated claims the claimant seeks an order pronouncing in solemn form for an alleged Will ("the Will") of the late Abdulaziz Saleh Al-Bassam ("the deceased") dated 26 th August 2001, for certain declarations as to the deceased's domicile, marital status, and the effect of the Will, and for an order that the estate of the deceased be distributed in accordance with the terms of the Will.
The deceased died on 17th November 2001. By nationality he was Saudi Arabian. There is, however, doubt as to his domicile at the date of death. By the Will the deceased, describing himself as "Retired Merchant" of Flat 6, 99 Eaton Place London SW1, (1) expressed the wish to be cremated in the United Kingdom (2) appointed the claimant (describing her as "my wife") and her son lain Burke-Hamilton (described as "my Stepson") as executors (3) left all his estate after payment of debts to the claimant and (4) directed that his estate should go to Mr Burke-Hamilton if the claimant predeceased him. Mr Burke-Hamilton has subsequently renounced probate. In February 2002 the claimant obtained a grant in England ad colligenda bona.
At this stage of the action there are before the court two applications. The first (dated 24 th July 2002) is an application by the claimant for orders that the defendant disclose certain details in respect of the deceased's estate, that he be restrained from dealing with it except upon notice to the claimant, and for permission to re-amend the consolidated particulars of claim so as to raise a case that the defendant is liable to account to the claimant as the Beneficiary of the Will as a constructive trustee of the assets of the estate retained by him. The second is an application (dated 26 th September 2002) by the defendant that the court should decide certain preliminary issues before dealing with the claimant's application. These issues go to the questions of whether the Will is valid in "Islamic law" and what recognition might be afforded by the Saudi Arabian courts to any declarations or decrees of the English court.
The deceased was born in 1925, apparently in Zubair in what is now Iraq, into a well-known and well connected Arab family having its origins in the Najed area of what is now Saudi Arabia. His father, Saleh Al-Bassam, had been born in 1865 in Anazia (or Unayzah) in that region but by the time of his death in 1942 was living in Basra (in what is now Iraq). The defendant is said to be the son of Saleh by his second marriage and the deceased was the son of a later marriage. There are said to have been two other sons (one of the first marriage and one of the second marriage) each of whom died in early infancy. According to a genealogy contained in an Appendix to H.StJ. Philby's Arabia of the Wahhabis (London 1928) the Al-Bassam family can trace its roots back to 122BC through a line of descent which includes the Prophet himself.
The claimant is an Englishwoman, whose evidence is that she first met the deceased in 1969 and married him on 23 rd December 1986. At the time of the marriage he had recently been diagnosed as suffering from throat cancer. The marriage was kept secret by the deceased from his Muslim family and friends. The claimant knew little about his personal affairs and finances. In the affidavit sworn in support of her application for the ad colligenda grant she stated:
"What I did know was that he was a very wealthy man by virtue of the fact that he and his family had a very successful trading business in India and Kuwait that had been established for approximately 100 years. As far as I was aware, my Husband was the co-owner of this business although he was not actively involved in its day to day operations. I was also aware that he maintained accounts with a large number of financial institutions and had a very large number of assets in different parts of the world."
Papers found by the claimant at the Eaton Place flat some time subsequent to the deceased's death give some indication of the scale of the deceased's wealth. They show that in 2001 he had had bank balances in the region of £20m and shares worth £l0m. Apart from being able to identify (and collect) some £1/2m in English bank accounts the claimant has, however, not been able to identify what assets he owned at his death. It appears that the deceased owned no immovable property in England, the flat itself being owned by his old and close friend Prince Khalid Abdullah of Saudi Arabia.
It is not in dispute that the claimant's marriage to the deceased and her claim to entitlement under the Will came as a rude shock to the defendant. In these proceedings neither the validity of the marriage nor due execution of the Will has been admitted despite apparently cogent (although as yet untested) evidence tendered on the claimant's behalf. The police were asked to investigate an allegation that the claimant had poisoned the deceased. The defendant has given the claimant no assistance whatsoever in her attempts to discover the identity and location of the deceased's assets, or to offer her any undertakings with regard to the preservation of any which may be under his control. The defendant has not, however, contested the jurisdiction of the court in these proceedings: although resident in Kuwait he authorised his London solicitors, Macfarlanes, to accept service on his behalf.
Central to the question of the claimant's entitlement under the Will (assuming it to be formally valid—an assumption which I make in all that follows) is the question of the deceased's domicile at his death. It is the law of that domicile which will determine the material or essential validity of the disposition of movables apparently effected by the Will: see Rule 137 Dicey & Morris on The Conflict of Laws 13 th edition. The claimant's contention is that that domicile was either English or Indian, one or other of such domiciles having been acquired by the deceased during his lifetime and not abandoned prior to his death. If she can show that the domicile was English, then she would be entitled to a declaration from this court that she is entitled to inherit the worldwide movable estate of the deceased subject to the payment of his debts. That would appear to be the case (although I do not decide the point) even if she was never validly married to the deceased. If she establishes an Indian domicile of choice, and also establishes the validity of the marriage, she will also, on the current state of the evidence, be entitled to the same declaration. A separate question arises as to how any such declaration could be turned to effective account by the claimant in relation to movables situated outside the jurisdiction of this court, and in particular those situated in jurisdictions which take a different view as to the succession.
The defendant's case is that the deceased's domicile at the date of death was Saudi Arabian. If that is correct, then it is common ground that the succession will be governed by the Hanbali school of Sharia law. Under that system of law gifts by will are not permitted to the extent that they purport to dispose of more than one third of the testator's net estate after the payment of debts. Nor is any disposition by will permitted in favour of an heir as defined by that law. It is common ground that the claimant, as a non-Muslim, could not be such an heir (and also common ground that the defendant is the sole such heir). Her claim to entitlement in Saudi Arabian law would therefore be a claim to one third of the net estate on the basis of a will (valid in Saudi Arabian law) having been made in her favour. The experts whose evidence is currently before the court appear to be agreed that there is no theoretical difficulty in the concept of such a will being made in favour of a non-Muslim wife, at least if she is Kitabia (that is one of "the people of the book"). Where they differ is whether this particular Will was valid having regard (i) to the effect of the provision in relation to cremation and (ii) to the circumstances in which it was made.
The defendant's expert, Dr Jamal Jamil Nasir, has opined that the provision in relation to cremation, coupled with the fact of cremation, renders the whole will invalid. According to his evidence that opinion has been confirmed to him by eminent Islamic scholars and authorities whom he has consulted (Sheikh Sayed Tantawi of the Al Azhar University in Cairo, described by him as the leading mainstream Islamic jurist and the highest spiritual authority for Sunni Muslims, the Grand Mufti Sheikh Abdul Aziz of Riyadh, the leading Saudi Arabian Islamic jurist, and Sheikh Tamimi, the head of the Sharia courts in Jordan). The claimant's expert, Mr Edge, acknowledges that cremation is against Islamic practice and custom, and may be abhorrent to Muslims, but is of the opinion that it is not prohibited by Islamic law, and that, even if it were, the mere expression of a wish to be cremated which is...
To continue reading
Request your trial
-
Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd and Others
...J in Glencore International AG v Metro Trading International Inc [2001] 1 Lloyds Law Rep 284 at paras 113–125 and that of Hart J in Al-Bassam v Al-Bassam [2002] EWHC 2281 (Ch) . 45 He further submits that the reasoning of the judge was influenced by an erroneous view that the principles of ......
-
Beximco Pharmaceuticals Ltd v Shamil Bank of Bahrain EC
...by Norton Rose) for the respondent. The following cases were referred to in the judgment of Potter LJ: Al-Bassam v Al-BassamUNK [2002] EWHC 2281(Ch). Associated Japanese Bank (International Ltd) v Crédit du Nord SAWLR [1989] 1 WLR 155. Bell v Lever Bros LtdELR [1932] AC 161. Brennan v Bolt ......
- Al-Bassam v Al-Bassam