Many thanks to Nicolás Zambrana, Assistant professor. University of Navarra, Spain
A very recent decision issued by a Court of First Instance in Madrid presents a slightly new turn of the screw in the issue of the proof of foreign law before Spanish tribunals. The facts are as follows: in 1997, Mr X, of Moroccan nationality, died, leaving a widow (Ms Y) and several children. Mr X had married Ms Y in1973 in Madrid by the Jewish rite, which was at that time not recognised by Spanish law. In 1975 he had made a will in Madrid where he had declared that he was of Jewish faith and that Moroccan succession law referred to Jewish law for succession matters.
In his testament, he bequeaths a life interest on 80% of all his real estate property to his mother and siblings. He also names his son and daughter as his heirs concerning all of his property. Apparently, Mr X, the eldest son of a numerous family, had made a fortune in the real estate business inSpain, where he had moved fromMorocco, with money borrowed from his family.
The claimants, who are the siblings of the deceased and the children of one of the aforementioned siblings, had filed a claim before a Madrid tribunal and had requested the tribunal to apply Spanish law and thus declare that the testament gave them a right to a life interest on 80% of the real estate property of the deceased or an equivalent amount in money.
The respondents –the children of Mr X- answered the claim and requested the tribunal to declare that the testament was null and void, in accordance with Jewish law and that, therefore, in accordance with Jewish law, too, the widow should receive half of the estate of the deceased and the rest should be divided among those children who were single, with the exception of the eldest son, who should receive a double portion than his siblings. Finally, it seems that Mr X had expressly forbidden all his heirs to resort to judicial means in case of a disagreement.
The claimants did not submit any evidence of foreign law. The respondents did request the tribunal, in a previous hearing, to call several witness-experts on Jewish law, including the Rabbinic Tribunal of Tangiers, all of which was refused by the judge because she claimed that, according to Spanish procedural law, they simply should have submitted to the tribunal an official translation of the foreign applicable law, which they had not done.
As it has been said, the claimants based their claim on Spanish law, which is why the Tribunal turned down all their petitions, given the fact that the applicability of the connecting factors is compulsory (art. 12.6 of the Spanish Civil Code). The Tribunal understood that, according to Spanish conflict of laws, the law applicable to succession is the “personal law of the deceased” (arts. 9.1 and 9.8 of the Spanish Civil Code). In this case, such law was Moroccan law. At no point did the Tribunal ask itself whether Moroccan law does in fact refer to Jewish law as the ultimately applicable law, but such issue is not a real problem because the claimants had simply denied that Moroccan law was applicable. Instead, they had had resort to Spanish law for the merits.
Spanish statutory law, as understood by Spanish case law (including cases decided by the Supreme Court), states that foreign law is to be considered as a fact and needs to be proved by the party that bases his or her claims on it. Spanish case law and doctrine seem not to agree as to the extent of the proof by the party that claims the applicability of the foreign law. For some scholars, only an initial proof is needed, after which the tribunal would have to check on its own the contents of the foreign law. For part of the case law examined, tribunals may or may not provide assistance to the parties in the task of proving the foreign law. Something on which there is consensus is the fact that the law to be alternatively applied, where the foreign law has not been sufficiently proved, is Spanish law. Nevertheless, the case described in this note is different, to the extent that the claimants simply fail to apply correctly the connecting factor that would have led to the application of the foreign law. Therefore, the tribunal understands that the claims lack sufficient legal base and must be dismissed.
This is just one more example of the mine field that the application of foreign law may turn into. An appeal has been filed before the Provincial Court. We will keep you informed as regards the progress of the case