What Happens When the Deceased Dies Abroad
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider issues which can arise when the deceased person whose estate is contested or disputed dies abroad
Issues in relation to 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 (“the Act”)
A claim under the Act can be brought by a widow, widower, child, person treated as a child and/or dependant. 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.
We considered this issue in detail in a previous blog:
Domicile in Relation to Claims Under the Inheritance Act 1975 – Will Claim Solicitors
It is a requirement of the Act that the deceased (and here we are potentially considering a person who died outside of England and Wales), is “domiciled” in England and Wales. This is very obviously becoming more and more of an issue both because immigration to the country appears to be increasing (I hope this is not contentious!) and because more and more UK citizens are opting to live abroad because of the weather and lifestyle.
Unless that person (the deceased) is domiciled in England and Wales on the point of death, a claim for financial provision which amounts to disputed Will on contentious or contested probate claim cannot be brought under the Act.
So what is domicile?
Everyone has a domicile of “origin”. Ordinarily it is where one is born. This prevails in the absence of a decision to move elsewhere on a permanent basis and is not necessarily affected by the decisions of local (tax or other) authorities; it is ultimately determined by the Court.
There is very good commentary on this in the Court of Appeal decision in Agulian and another v Cyganik [2006] EWCA Civ 129 (para 5)
Agulian & Anor v Cyganik [2006] EWCA Civ 129 (24 February 2006) (bailii.org)
Domicile: the legal principles and proof
“In Re Fuld [1968] P 675 Scarman J explained that the legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice. He noted two particularly important features of domicile (page 682D-E) which are relevant to this case:”
“First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.” [As pointed out by Buckley LJ in IRC v. Bullock [1976] 1 WLR 1178 at 1184H Scarman J’s formulation “for an unlimited time” requires some further definition]
Domicile of Origin is “sticky”
In Agulian the Court of Appeal appear to confirm that domicile of origin is sticky; it cannot easily be dislodged. So in relation to Will dispute and Will contest claims one must have an eye on:
1. the domicile of origin where the deceased was born abroad;
2. the domicile of origin where the deceased was born in England and Wales but moved abroad.
Domicile of origin is relinquished by a domicile of choice elsewhere, only if it can be affirmatively shown the deceased is resident elsewhere, with the intention (formed independently), of residing there permanently.
It is sticky because the strongest evidence is required to prove a domicile of choice has replaced the domicile of origin
Domicile of Origin is sticky because it cannot easily be displaced and moreover the burden (of proof) is on the person alleging change. In fact, it would appear the Court of Appeal in Agulian came close to endorsing a standard of proof that was close to or akin to the criminal standard, when it seemingly approved Scarman J’s commentary from an earlier decision called Re Fuld [1968] P 675:
Scarman J discussed another point relevant to this case-the standard of proof. He cited authorities stating that the “necessary intention must be clearly and unequivocally proved” and that the domicile of origin is more enduring than the domicile of choice and said (page 685D):
“…It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change… What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.”
Marriage to a person domiciled in another country is not conclusive
Even marriage to a foreign national and residence in that country are not necessarily conclusive although they may be important considerations (paragraph 46 of Agulian).
If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no- win-no-fee/.