Al-Bassam v Al-Bassam
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Carnwath,The Vice-Chancellor: |
| Judgment Date | 01 July 2004 |
| Neutral Citation | [2004] EWCA Civ 857 |
| Docket Number | Case No: 2002/2401 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2004 |
[2004] EWCA Civ 857
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable The Vice Chancellor
The Right Honourable Lord Justice Chadwick and
Lord Justice Carnwath
Case No: 2002/2401
2003/2227
Mr Thomas Lowe (instructed by Cobbetts Lee Crowder of 39 Newhall Street, Birmingham B3 3DY for the claimant (appellant in appeal 2002/2401)
Mr Charles Aldous QC and Mr Andrew de la Rosa (instructed by Macfarlanes, 10 Norwich Street, London EC4A 1 BD) for the defendant (appellant in appeal 2
These are appeals from orders made in proceedings brought by Lesley June Al-Bassam, who claims to be the widow of the late Abdulaziz Saleh Al-Bassam, against Abdullah Saleh Al-Bassam, the half-brother of the deceased.
Abdulaziz Saleh Al-Bassam ("the deceased") was a national of Saudi Arabia. It is common ground that he was a very wealthy man. At his death, on 17 November 2001, he was living in London. By a document dated 26 August 2001 and described as a will ("the will"), he appointed the claimant (and her son from a former liaison) to be his executors; and he left to her the whole of his estate. The son has renounced probate.
The deceased and the defendant, Abdullah Saleh Al-Bassam, were sons of the late Saleh Al-Bassam. The defendant claims to be entitled to the whole of the deceased's estate under the Shari'a law of inheritance. On 30 November 2001 he filed a caveat against the grant of probate to the will. On 19 January 2002 he obtained an "Heirs Identification Deed" from the Shari'a court in Riyadh, Saudi Arabia, supporting his claim to be the sole Koranic heir to his brother.
On 2 February 2002 the claimant was granted administration ad colligenda bona out of the Winchester District Probate Registry. On 18 March 2002 she commenced proceedings (HC02C00630 – "the succession claim") for declarations that the deceased had died domiciled in England; that she was the wife of the deceased at his death; and that his estate be distributed in accordance with the terms of the will. On the same day she commenced parallel proceedings (HC02C00631 – "the probate claim") in which she asked the court to pronounce for the will in solemn form.
On 16 April 2002 it was ordered that the succession claim and the probate claim be consolidated. Particulars of claim were served in the consolidated action on 30 April 2002. On 15 May 2002 those particulars were amended to plead, in the alternative, that the deceased had died domiciled in India. It is the claimant's pleaded case that, if (as she asserts) the deceased died domiciled in England or in India, she is entitled to the whole of his estate under the terms of the will. But she accepts that, if the deceased died domiciled in Saudi Arabia (as the defendant asserts) or in Iraq, her claims as sole beneficiary under the will have effect subject to Shari'a law (whether as the law of his domicile or as the law of his nationality) and that, in that event (as she asserts), she is entitled to one third of the estate.
The issues in the proceedings
A defence and counterclaim in the consolidated action was served on 3 May 2002. The issues raised by the defence may be summarised as follows:
(1) The marriage between the claimant and the deceased
It is said that the purported signature of the deceased on a marriage certificate – purporting to record the civil marriage of the claimant and the deceased at the Westminster District Registry Office on 23 December 1986 – is not the deceased's signature; that, if (which is not admitted) the claimant and the deceased went through a ceremony of marriage on 23 December 1986, the fact of their marriage was never disclosed to his family or friends or acknowledged by the deceased during his lifetime; and that the deceased continued to describe his marital status as "single" in passports and immigration documents after the date of the supposed marriage.
(2) The domicile of the deceased at his death.
It is denied that the deceased was domiciled in England or in India at the time of his death, or at any time. It is said that his domicile of origin was Saudi Arabia and that at no time did he acquire a domicile of choice in any other jurisdiction. In particular it is said – and it is not, I think, in dispute – that the deceased never owned a house in England or in India, that he had no employment in England or in India and that he never sought to obtain British or Indian citizenship.
(3) The substantive validity of the will
It is said that the law governing the substantive validity of the will – if (which is not admitted) it was validly executed by the deceased – and, in any event, governing succession to the deceased's estate, is Islamic law: "that law governs succession to the deceased's estate whether he was domiciled in Saudi Arabia or any other state in which the Islamic law of personal status is applicable to the deceased's estate". The defendant asserts that, under Islamic law "the will is wholly invalid and the defendant is solely and immediately entitled to the whole of the Deceased's estate as his sole heir". The basis of that contention is, first, that the will and its contents offend against fundamental Islamic tenets; and, second, that it was not registered in Saudi Arabia in accordance with the law of that jurisdiction. It is said that the will offends against fundamental Islamic tenets in the following respects: (i) that it purports to provide for the deceased to be cremated – "a provision which is entirely inconsistent with Islamic tenets and which is not severable from the other provisions of the purported will"; (ii) that it purports to leave the whole of the deceased's estate to the claimant or, should she predecease him, her son, neither of whom is a Muslim – "thereby wholly excluding the defendant who is the sole heir under Islamic law, a purported disposition of the deceased's estate which is entirely inconsistent with Islamic tenets"; (iii) that the will was purportedly executed during the deceased's "death illness" which itself renders the will invalid under the Islamic law of personal status.
(4) The due execution of the will
Due execution of the will by the deceased is not admitted. It is pleaded that, without prejudice to the issues as to domicile and substantive validity and in the absence of any particulars as to when and by whom the will was drafted or as to the instructions for its drafting given by the deceased, of any evidence from the attesting witnesses or of a forensic examination of the original document (and, in particular) of the deceased's purported signature, "the Defendant does not admit that the purported will was duly and validly executed by the Deceased, that the deceased knew and approved of the contents of the purported will or that he made the will of his own volition and free from any undue influence".
In his counterclaim the defendant repeated the allegations made in the defence; and, in particular, the allegation that "Under the Islamic law of personal status governing succession to the Deceased's estate, the defendant became immediately and solely entitled to the whole of the Deceased's estate as the Islamic heir no later than the time of the Deceased's death". The defendant sought declarations that the law governing the substantive validity of the will and succession to the deceased's estate was Islamic law and that, under that law, the will was wholly invalid and he was the deceased's sole heir. He asked the court to pronounce against the validity of the will and (if necessary) for a grant of administration of so much of the deceased's estate as is subject to the jurisdiction of the English court; for revocation of the grant ad colligenda bona; and for an account of assets of the estate in the hands of the claimant. The claim for an account was based upon allegations (in respect of which he also sought declarations) that the claimant had intermeddled in the deceased's estate and misapplied its assets in making payments not authorised by the limited grant which she had obtained.
The claimant served a reply and defence to counterclaim. As amended, that pleading is dated 1 July 2002. The reply joined issue with the allegations made in the defence as to the marriage between the claimant and the deceased. It denied that the domicile of origin was Saudi Arabia – on the grounds that Saudi Arabia did not exist as a separate kingdom at the time when the deceased was born. In that context I note that it appears from the certificate of death which is in evidence that the deceased was born at Al-Zubair in 1925. It is said that Al-Zubair – and Basra where the defendant lived as a child – were in British controlled Mesopotamia, a territory which subsequently became part of Iraq. On that basis the claimant asserts that the domicile of origin of the deceased was Iraq; but, given that it appears to be common ground that Iraq is a jurisdiction which would apply Islamic law to questions of succession, it is difficult to see that the question whether the domicile of origin was Saudi Arabia or Iraq can be of any great materiality. The thrust of the reply was that, since the 1970's (if not before), the deceased had adopted England as his domicile of choice. In particular it is said that, from the early 1970's, he had lived in London for about 9 months of each year; that he had obtained a visa which allowed him indefinite entry into the United Kingdom; and that he "had largely abandoned an Islamic way of life".
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