When making an Inheritance claim, the domicile country of the deceased is an essential element of the Court’s decision.
Various eligible individuals identified within s1 of the I(PFD)Act 1975 may apply to the Court for an Order for a share and disposition from a deceased’s estate where, either through their Will or by intestacy, no such reasonable financial provision may have been made.
However, any applicant will need to show that the deceased person died domiciled in England and Wales under s1(1) of the 1975 Act.
Domicile can broadly be summarised as an individual’s permanent home and is determined upon a set of legal principles rather than fact. Domicile is not necessarily the same as nationality. Domicile of choice is acquired by a combination of residence as a matter of fact and an intention of permanent or indefinite residence in that place.
In Udney v Udney (1869) it was held that domicile of choice is ‘a conclusion or inference which the Law derives from the facts of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time’.
Intention is required to establish permanent residence and is usually established by the Court having regard to a wide range of facts and looking at what the deceased may have done or achieved with his life and what was inferred from his intentions. This may involve looking at the deceased’s property ownership, emotional and social ties, where the deceased’s immediate family members live, financial ties, where a deceased retains his or her main bank accounts and the deceased’s own statements and declarations of where he may have considered or expressed his domicile to be.
In Proles v Kohli (2018) (Ch), Master Clark considered, as a preliminary issue, domicile of the deceased. The Claimant (Amélie) was five years old and made a claim against the estate of Baldev Kohli who she said was her father. He died on 8 December 2015, leaving a Will dated 30 October 2015.
The deceased was a married man at the time of his relationship with Amélie’s mother and he remained married at the date of his death. The Defendant, Harjeet Kohli was the deceased’s widow.
A key issue to be determined was whether the deceased was domiciled in England and Wales at the date of his death, the burden of proof being upon Amélie. The deceased’s domicile of origin was India. The Court had to decide whether the deceased, during his residence in England acquired England as his domicile of choice and, if so, whether he abandoned it by deciding to travel to India a month prior to his death.
The deceased was resident at various addresses in London from 2003 onwards and had a number of property dealings. The deceased’s own evidence to close friends and legal advisors varied; between admitting his marriage, claiming to be divorced, and claiming to be separated. The deceased spent his time between the UK and India, yet his wife did not come to England at all. The deceased evidenced a commitment to his daughter Amélie by being involved in her life. He provided financial support and planned her education. He consistently spent more time in the UK rather than in India and gave instructions to solicitors he was resident in the UK for tax purposes.
The Claimant relied upon the deceased’s ‘tapestry of life’ in the UK which, when contrasted with his connections in India, showed the deceased’s intention to live in England for an unlimited time. The Court considered the deceased’s business activities and property investments, his social and emotional connections and professional connections. The deceased’s financial activities revealed income from restaurants and VAT payments and being a principal Director and Shareholder in two companies with investments in residential and commercial property between 2003 and 2015. He had three personal English bank accounts, three company accounts and a loan account, English store cards and an English credit card. In contrast the deceased’s only economic activity in India after 2005 was the development of selling off flats at his house in India in 2006/2007 and a retained flat which was co-owned two thirds by the deceased’s wife and one third to the deceased.
The deceased’s wife was permanently in India throughout, yet the deceased spent the majority of his time in England and at least one trip by the deceased to India was referred to as ‘a holiday’. The deceased’s children from his marriage were based in England for a majority of the period concerned, together with Amélie and they were the people with whom the deceased was most closely tied.
The Court concluded that the deceased was domiciled in England at the date of his death.
The Defendant, Mrs Kohli appealed the Order of Master Clark, with Judgment being handed down by Mr Justice Mann on 30 January 2019.
Mr Justice Mann rejected the argument that evidential factors indicated that Master Clark could not properly have found the deceased as having sole or chief residence in this jurisdiction. He found that “a series of temporary homes, occupied whilst they were developed to be sold at a profit is not inconsistent with an intention to make England and Wales a person’s sole or chief residence.”
The Defendant’s application for permission to appeal was refused.
It is not unusual for many of our clients to have business dealings and property in the UK and abroad. Adopting a domicile of choice outside of the UK in order to prevent proceedings being brought under the I(PFD)A 1975 would require the deceased severing ties financially and emotionally with the UK and having intended to establish a permanent residence abroad.
Assets abroad and extended family should never be overlooked, and our Contested Probate Team can provide you with advice and guidance in this area if you are looking to make any kind of inheritance act claim.
This article was written by Kerry Hull, Senior Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2019.