CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – DOMICILE IN RELATION TO CLAIMS UNDER THE INHERITANCE ACT 1975
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider “domicile” in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975
So what is “domicile” and how does it affect claims under the Inheritance (Provision for Family and Dependants) Act 1975
What is a claim under the Inheritance (Provision for Family and Dependants) Act 1975
It is a claim for financial provision from a deceased’s estate where no or insufficient provision is made either by the deceased’s last Will or if there is no Will, by the rules of intestacy.
The Act or Statute can be found here:
Usually it can only be brought by a child or near relation of the deceased. See for example:
So a wife or dependant (who are non-blood related) can also bring a claim.
What is the significance of “domicile” in these cases?
“Domicile” in England and Wales by the deceased is a prerequisite, otherwise the Court will not allow the claim. This is made clear in the very first section of the 1975 Act:
Application for financial provision from deceased’s estate.
(1)Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—
What does “domicile” in England and Wales mean?
Most lay people will understand this; it means in very general terms that the deceased must have been living permanently in England and Wales before his/her death.
What could cause “domicile” to be lost?
England and Wales are multicultural countries which allow its citizens relatively easy movement across the globe (arguably!). It is not uncommon then for its citizens to spend considerable periods abroad and/or to meet and marry people who come from different countries across the globe (NOTE: we are sidestepping issues arising from Brexit so no complaints please!). The obvious issue arising from this in relation to claims under the 1975 Inheritance Act, is in identifying when periods abroad and/or actions in marrying an individual in a foreign jurisdiction can cause an individual to be deemed to be domiciled elsewhere so that the 1975 Act cannot be used.
In Kebbeh v Farmer & Ors (2015) EWHC 3827 (Ch) there is a useful summary of the relevant principles of the law of domicile:
At paragraph 19, HHJ Purle QC, provides the following snapshot:
“Relevant principles of the law of domicile
- 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).
- I need to amplify two of these principles at this point. The intention required for a domicile of choice ((vi) above)
- 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.
So can marrying a “foreigner” abroad lead to loss of domicile?
Apparently not! This issue appears to have been raised in Agulian & ANR v Cyganik  EWCA Civ 129:
As per LJ Mummery at paragraph 46:
As appears from the authorities, marriage by a man with a domicile of origin in one country to a woman domiciled in another country and post-matrimonial residence with his wife in that other country for many years are important considerations, but they are not conclusive. The matrimonial factor does not, as a matter of law, mean that the husband acquires a domicile of choice in that country ….
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