By Michael Effiong
When he died in Brussels, Belgium on September 1, 2015, enigmatic business behemoth, man of means, internationally-respected billionaire and diplomat, Chief Ambassador Antonio Oladeinde Fernandez would never have imagined that six years after, his family would be engulfed in a ferocious battle over his estate.
The Fernandez Family Feud which had probably been simmering for years reached boiling point when he passed on. His Kano-born wife, Halima Adebisi Fernandez, who was at his bed side when he took his last breath, is facing stiff opposition from his children and family members.
Indeed, this war of attrition almost ruined the funeral service and burial at the Cimetiere d’ixelles in Brussels of the Pan-African leader and Permanent Representative of the Central African Republic to the United Nations.
The aftermath was a public spat between Halima and one of the daughters, Abimbola and it was inevitable that the parties will take their family squabbles to court.
After years of battling at the lower courts, the Court of Appeal in Belgium on March, 25, 2021 decided on this mega case-and from documents exclusively obtained by The Boss, Halima has had the last laugh as the court ruled significantly in her favour!
THE BACKGROUND
Before this court victory, Abimbola, the youngest child of the giant business mogul with an unmistakable booming voice, had gone public about the family’s issues.
According to Abimbola, “Upon hearing the news that our father had passed to glory, we went straight to Brussels same day. When I arrived, I dropped my bags at the hotel and went directly to see my sister, Antoinette at the hospital to say goodbye to our father one last time.
“Our visit was brief and entailed no communication from Halima – not even an invite to our late father’s home. We were told very little information regarding the existence of a will, who is in charge of dad’s estate, funeral plans, and what will be done with sentimental valuables.
“Despite what many people want to think, us children frequented Belgium to visit our father. After losing my mother, Sandra Price, aka Aduke Fernandez, it really put life into perspective for me and really made me value every second with loved ones.
“The last time I had a friendly conversation with Halima was November 2014. Nothing since then, until the call about dad which I wouldn’t even describe as friendly.
“Once the children returned home, we all kept in touch as to figure out the next steps. Dad’s last wishes were to be buried back home in Lagos. This was made clear to Halima amongst many others.
“Our sisters Teju & Gbemi were planning a fitting burial for a king as per dad’s request. We were all under that impression and getting passports, visas etc ready to fly to Nigeria to bury our dad.
“After two weeks I received a phone call from a close friend of our father who informed me that he received a formal invite by mail and phone to dad’s funeral in Belgium. I immediately called my siblings who were gob smacked at the plan put in place to bury our father without our participation, permission and most importantly without inviting us. I don’t know how anyone with sound mind can invite all of dad’s friends to his funeral and not his children
“My siblings tried to reason with Halima to no avail evidently because dad indeed was buried in Brussels against his wishes.
“The day of the funeral, Halima had arranged for the children to be picked up in a shuttle bus while she rode in a Rolls Royce Phantom. Dad owned numerous luxury vehicles such as Bentley, Rolls and Maybach. He had more than enough cars to fit his children and their friends & family but per Halima’s organization, we followed in the bus.
No one had seen the funeral programme until the night before and some of us the day of the service. We scrambled to include readings from us children as many of us were excluded and not even asked to speak at our own father’s funeral.
“The service wasn’t fitting for the king our father is and our opinions read on all of our faces. What struck me as unnecessarily evil was towards the end of Halima’s eulogy she said something along the lines of “and I know you are up there with the only woman whom you really loved, Barbara Joyce” his late ex wife.
“In poor taste, she decides to purposely take a dig at me by excluding my late mother. She took another as we stood at the graveside and she asked all children by name except myself and Antoinette, if we had anything to say in memory of our loving father.
“Chosen siblings went the next day to our father’s home to speak to Halima and try and get a sense of the direction things were going in. She gave them a document and told them not to share it with the rest of the family for 40 days. Of course we now know we only had 40 days to submit time-sensitive information partaking to our father’s estate. Another trick. No words have been exchanged with her since.
“Currently Halima is laying claim to parts of dad’s affairs, on what grounds, I have no idea. We have yet to see any proof of a legal marriage. She is legally fighting us children and has only recently moved out of dad’s home after a detailed inventory was taken to prevent theft of his belongings which by Belgian law belong to his children.
“After the said inventory is when she took to twitter to tweet her horrific slander towards us born with American mothers. She has also gone as far as to publicly say on twitter that our father only has 1 legitimate daughter (he has 6), I do not have the right to use the title HIH which as a child of my father I do, referring to my mother as a wh*re who’s ashes need to be buried as well as plenty of other filth.
“I believe in preserving our father’s legacy but this woman has already ruined it. She is slandering his children to anyone and everyone that will listen, publicly and privately. People speak of not retaliating with her but enough is enough. I am an orphan and I am protecting my mother’s honor as any loving child would. My father was the first to say “Do not take nonsense from anyone” and that, I shall not.
We would like to be left alone to grieve over our father, settle his affairs and take him home to rest”
THE LOWER COURT
The legal tussle ultimately began when Mrs. Halima Fernandez approached the Family Court of Brussels in her quest to execute his will and her wish was granted on February 16, 2017.
She also requested for a Notary, Mr Deschamps to be appointed to proceed with the operations of liquidation-division of the estate. For some inexplicable reasons, Mr Deschamps refused to take on the responsibility of division of the estate as required and thus, Mrs. Halima Fernandez headed to court for the appointment of another Notary.
While she was awaiting the court’s verdict, Mr. Anthony Fernandez, son of the legendary man of fine taste, filed a suit opposing that prayer and challenged it on behalf of his other siblings.
The case was decided on December 21, 2017 and the court pronounced that the opposition against Mrs Halima Fernandez was well-founded and then further declared that because she did not establish her status as a widow, nor the universal quality of the deceased to which she was claiming, as such, her request for replacement of the notary was not applicable.
THE APPEAL COURT
It was based on this that Mrs Halima headed to the Court of Appeals of Brussels, 43rd Chamber, Family Chamber. The case with serial number: 2018/FA/54, Reference No: 2021/255 was heard.
Halima Adebisi Fernandez was the Plaintiff while Mr Anthony Fernandez, Mrs Darnel Abimbola Olumegbon Fernandez, Mr Augustus Adekoyejo Oladipupo Fernandez, Mrs Antoinnete Oyinkansola Fernandez, Mrs Olateju Maria Phillips, Mrs Olugbemisola Frernandez and Mr Alexander Akintokinbo Olanrewaju where Defendants while Mrs Sandra Atinuke Olufunlola Fernandez and Mrs Chritiana Funmilayo Titilola Fernandez were Respondents.
While Halima Fernandez who was accompanied by her Counsel, Mr. Luis F. de Castro wanted the court to nullify the judgment of December 21, 2017, recognize her status as widow and sole beneficiary of the Estate as well as appoint a Notary to proceed with the liquidation and sharing operations, the children who were represented by Mr. Henri Bartholomeeusen said her claims were unfounded. As expected both parties presented their motions and counter motions for the consideration of the court.
For Mrs Halima Fernandez, she had contended that she was in deed married to the late Fernandez who was regarded as the guardian of prosperity and panache.
She affirmed that on October 23, 2003, she was married to the very colourful and classy Fernandez in Kano (Islamic) and through the native law and customs in Lagos.
Halima then stated that the Belgian National Register mentions her as being married to Fernandez since October 23, 2003 and no other marriage is mentioned in regards to the late Fernandez.
That was not all, she contended that she was the sole heir in the execution of the will which the late Fernandez made.
The will produced by Mrs. Fernandez was written on the back of a menu bearing the name of Mr. Oladeinde Fernandez during a dinner served to him on August 24, 2015, while he was hospitalized at Cliniques Universitaires Saint-Luc
She produced a document that showed that his last will was written on that August 24, 2015 behind a menu card where the late billionaire referred to her as the “The Real wife”.
She also said that the date on the menu is wrong only in respect of year which she believed would not affect its validity.
Mrs Fernadez maintained that the document titled “Solemnization of Marriage” of November 6, 1982 which was referred to in a Paris Court of Appeal Judgment in a case between Fernandez and then wife, Sandra Aduke Fernandez was a forgery and requested a postponement to produce a certificate of proof which she claimed was locked in a safe in Kano, Nigeria.
On their path, the children contended that Mrs Halima Fernandez was never legally married to their father. According to them as at the time she claimed to have been married to him, she was still legally married to Mrs Sandra Inett Price Aduke Fernandez.
The averred that Fernandez married Aduke on November 6, 1982 in Oyo and the wedding documents was signed by the Alafin of Oyo.
They also stated that the judgment of the Paris Court Appeal of September 27, 2007 in a case between Antonio and Aduke showed that this marriage existed and they tendered documents.
The family also presented evidence that the children of Antonia and Aduke mentioned both of them as their parents. They produced the the birth certificate of one of the children, Mrs Darnel Abimbola Olumegbon Fernandez and the certificate mentions Sandra Price Fernandez as “his wife’
The court was also made to understand that in a notarized act drawn up in Paris on April, 1993 entitled” Donation by Fernandez to his wife”, the late Fernandez donated to Sandra Price (Aduke) Fernandez the Castle of Bois Fuillette in Oise (France). They averred that the marriage of November 6, 1982 was specifically mentioned.
In addition, a Notarized Act of May 23, 2003 by which Mr Fernandez revoked the donation made to his wife also mentioned the marriage.
Again, the Fernandez couple signed a memorandum of Understanding (MOU) on August 21, 2003 putting an end to various divorce proceedings initiated before a Scottish Court.
In the children’s opinion, Mr Fernandez, a Belgian National was married to Aduke as at October 2003, therefore any other supposed marriage would amount to bigamy according to Belgian law.
The Respondents also contested the validity of the Will because its date is partially crossed out and illegible, and in any case false, according to them.
Another argument they brought forward was that Fernandez was no longer of clear mind during the final days before his death on September 1, 2015. And also the impossibility of identifying the person who had been awarded.
THE PROCEEDINGS
The stage was therefore set for the court to consider the points presented by both sides. The first thing the Court considered was the issue of legibility and jurisdiction.
The late Chief Fernandez, according to records was a Belgian National since 2002 and domiciled in Ixelles, Belgium. The Belgian courts therefore adjudged that it had jurisdiction to the claims relating to the inheritance of his estate in accordance with Article 4 of Regulation No. 65/2012 of the European Parliament and the Council of Jurisdiction.
In the view of the court, the marriage on which Mrs Halima Fernandez relies on was contracted on October 23, 2003 in Nigeria before entry into force of the Belgian Code of Private International Law.
Consequently, in order to determine the laws applicable to the conditions of this marriage, it was necessary to refer to Articles 170 and 170th of the Civil Code. According to the former article 170 of the Civil Code, the law of the country of celebration of the marriage determines its formal requirements, i.e. in this case the Nigerian law.
The court stated that evidence before it showed that Aduke Fernandez had in Scotland made a divorce request on May 29, 2003 before the court of Edinburgh with regard to the situation of their matrimonial home.
As a consequence of that court matter, Aduke and Antonio Fernandez signed an MOU under which terms, Mr Fernandez undertook to pay his wife various sums as alimony and maintenance charges and on the other hand to transfer the Castle in Drumsheugh Gardens and the furniture worth over 300,000 pounds to his wife.
The court papers of that landmark multi-million divorce case in Scotland revealed that Aduke sought a lump sum payment of five million pounds and an allowance of 75,000 pounds a month for three years, as well as sale of their interests in oil wells, gold and diamond mines.
She also wanted 2000 pounds per month for Abimbola who was then below sixteen as well as all fees, extra accounts in relation to her education.
The court also stated that like the children alleged, as at 2007 when the couple were battling at the Paris Court of Appeal, Aduke was still married to Fernandez, though the Scottish divorce proceedings filed by Aduke may have muddied this contention.
It further said that the late Fernandez did not contest his marriage with Aduke before the Paris Court of Appeal which led to the judgment taken by the court on the matter.
In addition, Mrs Fernandez has had ample time since the court’s order of August 19,2020 to retrieve the document she said invalidates Aduke’s marriage which she said was in a safe in Kano, Nigeria but had not done so.
Insisting that in the opinion of the court, the document by Mrs Halima Fernandez could not even invalidate all other relevant documents on the matter as noted by the Paris Court of Appeal.
Based on the submission from Paris, the Belgian Court believed that it may also be noted that the marriage on which Mrs. Halima Fernandez relies on would also contravene the provisions of the Nigerian Marriage Act.
Indeed, according to section 33 (1) of this law, “No marriage in Nigeria shall be valid if any of the parties at the time of solemnization of such marriage is married under customary law to a person other than the person with whom such marriage is contracted”; according to section 39, it exposes her to criminal sanctions.
The court stated “As we have seen, Mr. OLADEINDE FERANANDEZ had contracted in 1982 in Nigeria, a customary marriage with Mrs. Sandra PRICE FERNANDEZ.
“Admittedly, Mrs. FERNANDEZ notes that the Belgian national register mentions that she was married to Mr. OLADEINDE FERNANDEZ since October 23, 2003, and the same register refers to a marriage contracted in Nigeria, in Kano.
“However, the court is not bound by the decision of the Registrar who agreed to recognize this marriage⁴.
“Moreover, it appears that no other marriage is mentioned with regard to Mr. OLADEINDE FERNANDEZ, which suggests that it was in ignorance of the still ongoing union of Mr. OLADEINDE FERNANDEZ with Mrs. Sandra PRICE FERNANDEZ in October 2003 that a marriage with Mrs. FERNANDEZ was considered.
“The court also notes that it is not known on the basis of which act or other document the existence of a marriage between Mrs. FERNANDEZ and Mr. OLADEINDE FERNANDEZ was transcribed or registered in Belgium and that Mrs. FERNANDEZ is particularly confused in her explanations since she claims to have contracted an Islamic marriage with Mr. OLADEINDE FERNANDEZ in Kano (Kano State), while at the same time claiming to have contracted a customary marriage with Mr. OLADEINDE FERNANDEZ in Lagos State.
“From the foregoing, it is clear that, although for other reasons, the decision should be confirmed insofar as it refused to recognize Mrs. FERNANDEZ as the sole heir of Mr. OLADEINDE FERNANDEZ
“Neither the photographs produced, nor the attribution of the name FERNANDEZ to the plaintiff, nor the title of Baroness of Dudley (which Mrs. Sandra PRICE FERNANDEZ also held) could lead to any other decision”
The court went on to say that the substantive conditions including in interpretation of the will produced by Halima must be assessed in the light of Belgian Law.
Noting that this Will could not have been drawn up before August 24, 2015 and that the Children had maintained without showing proof that Fernandez was no longer clear minded.
It went on to state “A will with a wrong date is not necessarily invalid. The erroneous date may be corrected when intrinsic and/or extrinsic elements make it possible to determine it, or even to determine only the period during which the will was made when there is no reason to determine a precise date; Such will be the case, in particular, when there is no reason to suppose that the testator was affected by insanity of mind during that period”.
Adding that an error regarding the year by Fernandez is not sufficient to consider that he lacked capacity especially as Mrs Halima Fernandez had presented a document by Dr. Goffin, Head of Nephrology, Cliniques Universitairies Saint-Luc certifying that the late Fernandez had full mental capacity but only had difficulties with mobility of his hands.
The court also asserted that the holographic Will drawn up by Fernandez who was well grounded in Yoruba Culture was to avoid disputes which unfortunately had now occurred.
According to the court, Fernandez clearly considered Halima as his wife. He treated her as such, she bore his name, they lived together and it is not disputed that she was at his bedside during the last days of his life.
In the view of the court, Halima was described as “my wife” by the late beneficiary and not the sole beneficiary of his estate.
It then stated emphatically that though to the Children’s claims that their father was married five times, his fifth wife being Mrs. Sandra Price Fernandez is correct, but she died in 2013 and therefore cannot have been included in the will drawn up in 2015.
Adding “ In any case, there is no reason to believe that, by naming “my real wife” as universal legatee, Mr. Oladeinde Fernandez intended to designate one of his previous wives or someone other than Mrs. Fernandez.
THE JUDGMENT
The Court began by affirming that without being prejudicial to the rights of the legal heirs of Fernandez, it is clear that Mrs. Halima Fernandez is the universal legatee of the deceased.
It stated that Halima’s request for the appointment of a notary in order to proceed with the liquidation and sharing of the estate is admissible and well-founded.
The court asserted that Halima cannot claim to be the sole heir of Fernandez who died in Woluwe-Saint-Lambert on 1st September, 2015.
It also confirmed the decision of February 16, 2017 that Mrs. Halima Adebisi Fernandez has the right of holding of the account, liquidation and sharing of the Fernandez estate
The court also went on to appoint Maitre Gaétan Bleeckx, whose office is on 1060 Brussels, place Maurice van Meenen, 2 to act a Notary for the purpose of liquidation of the Estate and related matters.
It also urged each of the parties to pay for their costs of procedures and appeal.
The judgement was delivered on March 25, 2021 and signed by the following: I. Ruydts (President of the Chamber, Judge of Appeal For the Family), M. De Graef (Judge of Appeal for the Famy) and A de Poortere (Substitute )
FIND BELOW THE CASE IN FULL
In the case of:
Mrs. Halima Adebisi FERNANDEZ,
Plaintiff,
Appearing in person, accompanied by her counsel Mr. Luis F. de CASTRO, lawyer whose office is situated in 1050 Brussels, Avenue Louise, 50;
Defendant:
Mr. Anthony FERNANDEZ,
Mrs. Darnel Abimbola Olumegbon FERNANDEZ
Mr. Augustus Adekoyejo Oladipupoo FERNANDEZ
Mrs. Antoinette Oyinkansola FERNANDEZ
Mrs. Olateju Maria PHILIPS,
Mrs. Olugbemisola FERNANDEZ,
Mr. Alexander Akintokunbo OLANREWAJU,
Respondents,
Represented by their counsel, Mr. Henri BARTHOLOMEEUSEN, whose office is located in Brussels, Rue de Stassart, 117, box 9.
Mrs. Sandra Atinuke Olufunlola FERNANDEZ, without known address, residence or any known elected official residence in Belgium,
Respondent,
Did not appear in court, nor did anyone appearing on her behalf;
Mrs. Christiana Funmilayo Titola FERNANDEZ, without known address, residence or any known elected official residence in Belgium,
Respondent,
Did not appear in court, nor did anyone appearing on her behalf;
Having regarded the documents in the proceedings, in particular:
The judgment thereby, pronounced contradictory with regard to Mr. Anthony FERNANDEZ and Ms. Halima Adebisi FERNANDEZ and by default with regard to the other parties by the Family Court of the French-speaking Court of First Instance of Brussels on December 21, 2017, of which no writ of service is produced;
– The January 23, 2018 petition for appeal;
– The order of August 19, 2020, taken pursuant to Article 748, & 2 of the Judicial Code;
– The summary conclusions of the respondents’ summary of the respondents’ no’s 1 to 7 delivered to the clerk of the court on October 30, 2020;
– The summary conclusions of the plaintiff delivered to the clerk’s office of the court on December 30, 2020.
l. The purpose of the application and appeal
1.
The dispute concerns the estate of Mr. Antonio OLADEINDE FERNANDEZ, of Belgian nationality (since May 8, 2002), born in Lagos (Nigeria) on August 12, 1936 and deceased in Woluwe-Saint-Lambert on September 1, 2015.
2.
Mr. OLADEINDE FERNANDEZ had nine children, the present respondents.
The plaintiff, Mrs. Halima Adebisi FERNANDEZ, of Nigerian nationality, born in Kano (Nigeria) on March 9, 1969, claim to have married Mr. Antonio OLADEINDE FERNANDEZ in Nigeria on October 23, 2003.
The respondents’ no’s 1 to 7 contest the existence of this marriage, which they claim could not in any case be taken into account, because of bigamy in the case of Mr. OLADEINDE FERNANDEZ.
Respondents’ no’s 1 to 7 contests the validity of this will.
3.
Originally, the Family Court of Brussels was seized with the request of Mrs. Halima Adebisi FERNANDEZ, directed against the nine children of Mr. Antonio OLADEINDE FERNANDEZ, seeking, in substance, to have the notary DESCHAMPS appointed to proceed with the operations of liquidation-division of the estate.
4.
By a first judgment of February 16, 2017, pronounced by default with respect to the nine children of Mr. Antonio OLADEINDE FERNANDEZ, the family court ordered the holding of liquidation-sharing operations and appointed the notary DESCHAMPS to proceed therewith
5.
The notary DESCHAMPS having not accepted the mission, Mrs. Halima Adebisi FERNANDEZ has applied to the court for a replacement of the notary.
In addition, one of Mr. Antonio OLADEINDE FERNANDEZ’s sons, Mr. Anthony FERNANDEZ, filed an opposition against the judgment of 16 February, 2017;
The judgment undertaken on 21 December, 2017, ruled on these two claims.
6.
The first judge found the opposition to be well-founded. It set aside the judgment pronounced by default on 16 February, 2017 and declared the original claim of Mrs. Halima Adebisi FERNANDEZ inadmissible, on the grounds that she did not establish her status as a widow, nor the universal quality of the deceased to which she was claiming.
The original request of Mrs. Halima Adebisi FERNANDEZ having been declared inadmissible, the first judge said that the request for replacement of the notary was not applicable.
7.
Mrs. Halima Adebisi FERNANDEZ request the court to nullify the judgment of December 21, 2017 and:
– To recognize her status as widow and sole beneficiary of Mr Antonio OLADEINDE FERNANDEZ.
– To appoint a notary to proceed with the liquidation and sharing operations.
The respondents no’s 1 to 7 concluded that the appeal is unfounded.
8.
By an order of August 19, 2020, issued pursuant to Article 748, & 2 of the Judicial Code, final deadlines for the preparation of the case were set, taking into account a new document produced by the Respondents no’s 1 to 7.
II. Discussion
International Jurisdiction of the Belgian Courts
9.
The last habitual residence of Mr. OLADEINDE FERNANDEZ, who since 21 April, 2015 was domiciled at Ixelles, was in Belgium.
The Belgian courts therefore have jurisdiction to hear the claims relating to the liquidation of the inheritance of Mr. OLADEINDE FERNANDEZ’s estate, in accordance with Article 4 of Regulation No. 65/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of judgments, acceptance and enforcement of authentic instruments in matters of inheritance and on the creation of a European Certificate of Inheritance.
Law applicable to the formal and substantive requirements of a possible marriage celebrated in Nigeria in October 2003.
10.
The marriage on which Mrs FERNANDEZ relies was, according to her, contracted on 23 October 2003 in Nigeria, i.e. before the entry into force of the Belgian Code of Private International Law.
Consequently, in order to determine the laws applicable to the formal and substantive conditions of this marriage, it is necessary to refer to the former articles 170 and 170th of the Civil Code.
According to the former article 170 of the Civil Code, the law of the country of celebration of the marriage determines its formal requirements, i.e. in this case the Nigerian law.
According to the former article 170th of the Civil Code, marriages celebrated abroad are “as to substance, valid in Belgium if the contracting parties have satisfied the conditions prescribed by their personal statutes for contracting a marriage, on penalty of nullity”.
Mr. OLADEINDE FERNANDEZ had Belgian nationality since 8 May, 2002.
The validity of a marriage that he allegedly contracted on 23 October, 2003 in Nigeria must therefore be assessed, as far as he is concerned, on the basis of the substantive conditions prescribed under penalty of nullity by Belgian law.
As regards Mrs. FERNANDEZ, of Nigerian nationality, the substantive conditions of the marriage she mentions must be assessed on the basis of Nigerian law.
11.
According to respondents’ no’s 1 to 7, the alleged marriage of the deceased with the plaintiff is in any case not valid, since it would be a bigamous marriage and would contravene the principle of public order of article 147 of the Belgian Civil Code, according to which “one cannot contract a second marriage before the dissolution of the first”.
They maintain that Mr. Antonio OLADEINDE FERNANDEZ had married in Nigeria, on 6 November, 1982 to Mrs. Sandra Inett Aduke PRICE FERNANDEZ, and that as at 2003, he was still married to her, as it would appear from the judgment of the Paris Court of Appeal of September 27, 2007, which they tendered.
12.
This judgment of 27 September, 2007, was handed down by the Paris Court of Appeal in a dispute between Ms. Sandra PRICE FERNANDEZ and OLADIENDE FERNANDEZ, concerning protective measures ordered on the basis of Article 20 of European Regulation No. 2201/2003 of 7 November, 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, on the one hand, and Article 220-1 of the French Civil Code1, on the other.
13.
Mr. OLADEINDE FERNANDEZ disputed before the Paris Court of Appeal that he had married Mrs. Sandra PRICE FERNANDEZ in 1982.
However, in its decision of September 27, 2007, the Court of Appeal of Paris noted:
– That Mr. OLADEINDE FERNANDEZ married Mrs. Sandra PRICE FERNANDEZ on November 6, 1982, “according to a customary marriage in Oyo in Nigeria, as it appears from the act entitled “solemnization of a customary marriage” of the same day, emanating from the State of Oyo in
Nigeria, and signed by the Alafin, customary chief of this province, a document whose authenticity is not disputed;
– that the birth certificates of the two children of Mr. OLADEINDE FERNANDEZ and Mrs. Sandra PRICE FERNANDEZ mentioned that their parents are married; the respondents no’s 1 to 7 produced before this court the birth certificate of one of these children, Mrs. Darnel Abimbola Olumegbon FERNANDEZ, and this certificate mentions that Mrs. Sandra PRICE FERNANDEZ is “his wife”,
– that by a notarized act drawn up in Paris on April 6, 1993, entitled “donation by Mr. FERNANDEZ to his wife”, Mr. OLADEINDE FERNANDEZ made a donation to Mrs. Sandra PRICE FERNANDEZ of the castle of Bois Feuillette in Oise (France) and that this act “expressly mentions the customary marriage of 6 November, 1982 on the civil status of the two parties”;
– that the notarized act of 23 May, 2003 “by which Mr. OLADEINDE FERNANDEZ revoked this donation made to his wife also mentions this marriage”;
– that Mrs. Sandra PRICE FERNANDEZ had introduced in Scotland a request for divorce on 29 May, 2003 “before the court of Edinburgh, territorially competent with regard to the situation of the matrimonial home”;
– that “the FERNANDEZ couple” signed a memorandum of understanding on 21 August, 2003 putting an end to the various divorce proceedings initiated by the wife before the Scottish court;
– that under the terms of this memorandum of understanding Mr. OLADEINDE FERNANDEZ “(…) undertook, on the one hand, to pay to his wife various sums as alimony and maintenance charges, and on the other hand to ” transfer the castle and the furniture to his wife “,
– that no other divorce proceedings were in progress between the parties.
The preceding elements allow us to conclude that, as the respondents no’s 1 to 7 pointed out, Mr. OLADEINDE FERNANDEZ was indeed still married to Mrs. Sandra PRICE FERNANDEZ in 2007, when the Paris Court of Appeal heard the above-mentioned dispute, and that he was therefore also married in October 2003.
A possible marriage of Mr. OLADEINDE FERNANDEZ, of Belgian nationality, contracted in October 2003 with the plaintiff, would therefore necessarily be bigamous and no effect can be recognized in Belgium to such a union, which contravenes the Belgian international public order2.
14.
At the court hearing of 21 January, 2021, Mrs. FERNANDEZ certainly maintained that the document titled “Solemnization of a customary marriage” of 6 November, 1982, which is referred to in the judgment of the Paris Court of Appeal, was a forgery. She requested a postponement of the case in order to be able to produce a certificate proving this, which is in a safe in Nigeria, in Kano, but which she would not be able to produce, for lack of being able to go to Nigeria because of the Covid 19 pandemic.
The court noted that Mr. OLADEINDE FERNANDEZ did not however contest the authenticity of this customary marriage certificate before the Paris Court of Appeal, which the judgment of this court expressly noted.
In addition, Mrs. FERNANDEZ has had the necessary time since the court’s order of 19 August, 2020, to retrieve the document in question, if necessary by seeking the intervention of a trusted third party.
Furthermore, assuming that this document exists, it could not contradict the other relevant elements, also noted by the Court of Appeal of Paris, and largely confirming the existence of the marriage of Mr. OLADEINDE FERNANDEZ with Mrs. PRICE FERNANDEZ.
Therefore, there is no reason to reopen the proceedings in order to allow Mrs. FERNANDEZ to produce the certificate that she claims to have.
15.
It may also be noted that the marriage on which Mrs. FERNANDEZ relies would also contravene the provisions of the Nigerian Marriage Act.
Indeed, according to section 33 (1) of this law, “No marriage in Nigeria shall be valid if any of the parties at the time of solemnization of such marriage is married under customary law to a person other than the person with whom such marriage is contracted”; according to section 39, it exposes her to criminal sanctions.
As we have seen, Mr. OLADEINDE FERANANDEZ had contracted in 1982 in Nigeria, a customary marriage with Mrs. Sandra PRICE FERNANDEZ.
16.
Admittedly, Mrs. FERNANDEZ notes that the Belgian national register mentions that she was married to Mr. OLADEINDE FERNANDEZ since October 23, 2003, and the same register refers to a marriage contracted in Nigeria, in Kano.
However, the court is not bound by the decision of the registrar who agreed to recognize this marriage⁴.
Moreover, it appears that no other marriage is mentioned with regard to Mr. OLADEINDE FERNANDEZ, which suggests that it was in ignorance of the still ongoing union of Mr. OLADEINDE FERNANDEZ with Mrs. Sandra PRICE FERNANDEZ in October 2003 that a marriage with Mrs. FERNANDEZ was considered.
The court also notes that it is not known on the basis of which act or other document the existence of a marriage between Mrs. FERNANDEZ and Mr. OLADEINDE FERNANDEZ was transcribed or registered in Belgium and that Mrs. FERNANDEZ is particularly confused in her explanations since she claims to have contracted an Islamic marriage with Mr. OLADEINDE FERNANDEZ in Kano (Kano State), while at the same time claiming to have contracted a customary marriage with Mr. OLADEINDE FERNANDEZ in Lagos State.
17.
From the foregoing, it is clear that, although for other reasons, the decision should be confirmed insofar as it refused to recognize Mrs. FERNANDEZ as the sole heir of Mr. OLADEINDE FERNANDEZ.
Neither the photographs produced, nor the attribution of the name FERNANDEZ to the plaintiff, nor the title of Baroness of Dudley (which Mrs. Sandra PRICE FERNANDEZ also held) could lead to any other decision.
The Will
18.
Mrs. FERNANDEZ also contends that she is the sole heir of Mr. OLADEINDE FERNANDEZ, in execution of a will he allegedly made on August 24, 2015.
According to the document produced, written in a handwriting that is difficult to read, the last wishes of Mr. OLADEINDE FERNANDEZ were to bequeath his estate to his “real wife” (read his “real wife” or, according to the respondents no’s 1 to 7, his “real wife”).
The respondents no’s 1 to 7 contests the validity of this will because of:
– its date, partially crossed out and illegible, and in any case false according to them,
– the deterioration of the state of health of Mr. OLADEINDE FERNANDEZ in the days preceding his death, which raises doubts about his capacity to write a will
– the impossibility of identifying the person who had been awarded.
19.
The substantive conditions (including its interpretation) and form of the will produced by Mrs. FERNANDEZ must be assessed in the light of Belgian law, in accordance with articles 24,§ 1st and 26 of Regulation No. 650/2012 of the European Parliament and of the Council mentioned above, which is not contested by any of the parties.
Article 970 of the Civil Code5, and according to which a holographic will is not valid if it is not written in full, dated and signed by the hand of the testator, must be observed on penalty of nullity in accordance with Article 1001 of the same code.
According to article 901 of the Civil Code, one must be of sound mind to make a will.
20.
The will produced by Mrs. FERNANDEZ was written on the back of a menu bearing the name of Mr. OLADEINDE FERNABDEZ, relating to a dinner served to him on August 24, 2015, while he was hospitalized at Cliniques Universitaires Saint-Luc.
The date affixed by Mr. OLADEINDE FERNANDEZ is partially crossed out, but it can be read as “25 august 19 (illegible crossing out – may be 8) 4”.
21.
Ms. FERNANDEZ believes that the date of the menu (August 24, 2015) allows for the fact that the date indicated by Mr. OLADEINDE FERNANDEZ is wrong only with respect to the year, which she believes would not affect the validity of the will.
A will with a wrong date is not necessarily invalid. The erroneous date may be corrected when intrinsic and/or extrinsic elements make it possible to determine it, or even to determine only the period during which the will was made when there is no reason to determine a precise date; Such will be the case, in particular, when there is no reason to suppose that the testator was affected by insanity of mind during that period⁶.
22.
In the present case, Mr. OLADEINDE FERNANDEZ’s will could not have been drafted before August 24, 2015.
Respondents no’s 1 t 7 maintained without showing that Mr. OLADEINDE FERNANDEZ was no longer clear minded during the final days before his death on September 1, 2015.
The use of an unusual medium or the error regarding the year indicated by Mr. OLADEINDE FERNANDEZ is not sufficient to consider that his capacity was necessarily impaired, especially since Ms. FERNANDEZ produced a certificate dated August 24, 2015, drawn up by Dr. GOFFIN, head of the nephrology department at Cliniques Universitaires Saint-Luc, certifying that Mr. OLADEINDE FERNANDEZ “has full mental capacity” (read has all his mental capacity”) but difficulties for the mobilization of his hands (“by contrast, he has lots of difficulties with the mobilization of his hands”).
As for the steps subsequently taken by Mrs. FERNANDEZ with the usual lawyer of Mr. OLADEINDE FERNANDEZ, with a view to drawing up an authentic will, they cannot have any impact on the assessment of the validity of the holographic will that Mr. OLADEINDE FERNANDEZ had already drawn up. Indeed, it can be considered that the purpose was to avoid the disputes that Mr. OLADEINDE FERNANDEZ could have feared and which did in fact occur.
23.
When the testator designates a legatee, that legatee must be identified or at least identifiable⁷.
M. OLADEINDE FERNANDEZ did not name Mrs. FERNANDEZ as the sole beneficiary of his estate, but rather “my wife”.
However, Mr. OLADEINDE FERNANDEZ clearly considered Mrs. FERNANDEZ as his wife. He treated her as such, she bore his name, they lived together and it is not disputed that she was at his bedside during the last days of his life.
It is true that respondents no’s 1 to 7 mention that their father was married five times, his fifth wife being Mrs. Sandra PRICE FERNANDEZ, mentioned above. But she died in 2013 and therefore cannot have been included in the will drawn up in 2015. In any case, there is no reason to believe that, by naming “my real wife” as universal legatee, Mr. OLADEINDE FERNANDEZ intended to designate one of his previous wives or someone other than Mrs. FERNANDEZ.
24.
The decision taken will therefore be overturned insofar as it considers that Mrs. FERNANDEZ is not the legatee of Mr. OLADEINDE FERNANDEZ.
The request for liquidation and sharing of the estate of Mr. OLADEINDE FERNANDEZ
25.
Without this finding being prejudicial to the rights of the legal heirs of Mr. OLADEINDE FERNANDEZ, it is clear from the foregoing that Mrs. FERNANDEZ is the universal legatee of the deceased.
Her request for the appointment of a notary in order to proceed with the liquidation and sharing of the estate of Mr. OLADEINDE FERNANDEZ is admissible and well-founded.
The judgment under appeal will also be overturned in that it nullified the judgment of which opposition was filed on February 16, 2017, which had granted this request by Mrs. FERNANDEZ.
Notary DESCAMPS, appointed by the decision of February 16, 2017, has indicated that he could not accept this assignment. It is therefore rightly that Mrs. FERNANDEZ requests the appointment of another notary.
The Costs
26.
Pursuant to article 1017, paragraph 4, of the Judicial Code, costs may be offset “to the extent assessed by the judge (…) if the parties are unsuccessful on any of the counts”.
In the present case, the parties are each unsuccessful on some of their claims.
Accordingly, costs should be offset in both proceedings, in that each party shall bear its own costs.
NOW THEREFORE,
THE COURT,
In accordance with Article 748, § 2 of the Judicial Code, rules contradictorily,
Having regard to article 24 of the law of 15 June 1935 on the use of languages in judicial matters,
Receives the appeal and grounds as follows;
Cancels the judgment underway, except insofar as it accepted the claims and ruled that Mrs. Halima Adebisi FERNANDEZ cannot claim to be the sole heir of Mr. OLADEINDE FERNANDEZ, who died in Woluwe-Saint-Lambert on 1st September, 2015.
Ruling again for the remainder,
Holds that in accordance with the testamentary dispositions taken by Mr. OLADEINDE FERNANDEZ, Mrs. Halima Adebisi FERNANDEZ is the universal legatee of his estate;
Confirms the decision of February 16, 2017, insofar as it ordered, at the request of Mrs. Halima Adebisi FERNANDEZ, the holding of the account, liquidation and sharing of the estate of Mr. OLADEINDE FERNANDEZ;
Appoints to proceed to these operations Maitre Gaétan BLEECKX, notary whose office is established in 1060 Brussels, place Maurice van Meenen, 2;
Delivers to each of the parties its costs of procedure and appeal.
This judgment was rendered by the 43rd chamber of the Court of Appeal of Brussels, Family Chamber, on 25 March 2021, composed of:
I. RUYDTS, president of the chamber, judge of appeal for the family,
M. DE GRAEF, counsellor, judge of appeal for the family,
A. de POORTERE, substitute magistrate
Original Court document Translated by: Lonniintrad Interpretation and Translation Agency.
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93000 Bobigny. Paris.
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