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CONTESTING A WILL – WHAT HAPPENS WHEN THE WILL IS MADE ABROAD (PART 1 OF 3)

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This is a complex area of law in will contest and will dispute claims. Accordingly we have divided it into three parts. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.

Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts

In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. However where the Will writer has moved his or her household abroad, this may mean that a claim against his/her estate cannot be made under the Inheritance (Provision for Family and Dependants) Act 1975 (see for example our previous blog – https://www.willclaim.com/how-to-contest-a-will-how-hard-is-it-for-an-adult-child-to-bring-a-claim-for-financial-provision-under-the-inheritance-provision-for-family-and-dependants-act-1975/)

Under the 1975 Act, a claim for financial provision can only be made where the deceased was “domiciled” in England and Wales at the date of his/her death. Section 1(1) refers:
http://www.legislation.gov.uk/ukpga/1975/63/section/1

Of course the question of “domicile” itself can be extremely difficult to determine. In Kebbeh v Farmer & Ors (2015) EWHC 3827 (Ch) https://familylawhub.co.uk/default.aspx?i=ce5044) there is a useful summary of the relevant principles of the law of domicile by HHJ Purle QC at paragraph 19, which we have cut and pasted below for ease of reference:

“Relevant principles of the law of domicile

General principles

8. The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).

(ii) (No person can be without a domicile (Dicey, page 126).

(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).

(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).

(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).

(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138).

(vii) Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).

(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151).

(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153).

(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).

9. I need to amplify two of these principles at this point.

The intention required for a domicile of choice ((vi) above)

10. The intention of residence must be fixed and must be for the indefinite future. It is not enough for instance that at any given point in time its length has not been determined.

In the next part of this three part series we look at the issues associated with a challenge to the legal validity of a Will made abroad.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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