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 portion (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’s 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 portion). 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 circumstances 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 classes 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 portions, 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’s 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. Señor Barrero (the Defendant’s 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 circumstances accept such remission. Señor Barrero’s 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 Señor 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’s wishes inherent in allowing different laws to regulate the succession to different parts of his estate, thereby failing to give effect to the Testator’s express or presumed intentions. So, says Señor 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’s expert. Señor 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 support for his opinion in the views of a Spanish Jurist, Señor 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 ………accept 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 Señor 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 Señor Abando’s 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’s immovable property in Spain but that English domestic law applied to the Testator’s movable property in defiance of the Testator’s 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….the Spanish Supreme Court if it were seized of this case would hold that the Testator’s 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 portion. 

I accordingly dismiss the action.