Wherever I Lay My Hat...
All too often Domicile is thought to be a relatively straightforward concept and Paul Young’s song is considered to be fairly apt in setting the scene that Home is wherever you want it to be. However, this is not the case and Domicile is often a complex concept. It is an important consideration in Inheritance Act claims as a claim can only be brought against the estate of a deceased person who was domiciled in England and Wales at the time of his/her death.
Associate – Estate & Trust Disputes Specialist
Everyone has a domicile of origin which is based upon the domicile of your father (in the event that your parents are married) or your mother (if unmarried or father has deceased), i.e. where they consider their permanent home to be at the time of your birth. Therefore, even if you were born in, say, England; if your parent(s) permanent home was in, say, India – that is the domicile of origin that you will take.
An individual over the age of 16 can revert to a Domicile of Choice. They must be living in a different country from their domicile of origin and must have an intention to remain in that country permanently or indefinitely.
A recent case in the Chancery Division of the High Court addressed the domicile question as a preliminary issue in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Proles –v- Kohli  EWHC 767 (CH) found that the deceased was domiciled in England at the date of his death on 8 December 2015.
The Claimant was the 5 year old daughter of the deceased (by her mother and litigation friend) and, given the content of section 1(1) of the 1975 Act, the burden of proof was on the Claimant to show that the deceased was indeed domiciled in England and Wales at the time of his death.
It was accepted that the deceased’s domicile of origin was India, but that he had lived for a considerable amount of time in England before travelling to and remaining in India for just a month before he died. Therefore the preliminary issue to be decided can be divided into two further issues:
- Firstly, did the deceased acquire a domicile of choice in England? And, if so;
- Did he abandon his domicile of choice by travelling to India where he remained until his death?
When considering domicile, the whole of the deceased’s life and what his inferred intentions were, need to be taken into account.
The facts in this case were, of course, detailed and varied and beyond the scope of this article. However, the evidence before the court showed a long history of the deceased living and working in England. Although he remained married, he held himself out as divorced and had other relationships, including a brief relationship with Amelie’s mother in 2012. Although that relationship did not work out, he accepted Amelie as his child (at least initially) and retained a cordial and friendly relationship with her mother. He did not travel to India much over the years and certainly spent more time in England and his business ventures were all ultimately in England.
There are some records of conversations around domicile while the deceased was alive which were not conclusive. There is a report of him saying, in 2014, that he hadn’t decided whether he wanted to stay in England or return to India. He was resident in the UK for tax purposes. Solicitors acting for him in relation to a Will around this time mention that the deceased considered himself to be domiciled in India; however, the deceased did not respond to this, nor sign the draft Will.
Later, in 2015, he instructed different solicitors to prepare a Will and told them that he was domiciled and resident for tax purposes in the UK and that he held no property abroad or offshore, but his wife was currently in India.
The deceased was diagnosed with cancer in 2014 and after lengthy treatment decided to travel to India for rest and recuperation.
The claimant’s case was that in about 2010, following lengthy residence and estrangement from his wife, it is to be inferred that the deceased had the intention to reside in England indefinitely and to abandon his domicile of origin. His return to India in 2015 was only intended to be temporary. Indeed he had shown an intention to become a British national after Christmas 2014, for tax purposes, and as he has no intention of ever returning to India to live.
Mrs Kohli’s case was that the deceased never formed an intention to abandon his Indian domicile or acquire any settled residence in England He held an Indian passport, identity card and election card; he had an international driving permit and a limited visa to live and work in the UK.
There is strong contemporaneous evidence that the deceased intended to return to England after a rest from his cancer treatment. He had follow up appointments in England which he appeared to be intending to keep.
Therefore, in this case, it was found that the deceased took on a domicile of choice in England and Wales and did not abandon that domicile of choice when he returned temporarily to India. Therefore, it was found that the deceased was domiciled in England at the date of his death on 8 December 2015.
Although it remains the case that domicile can be a choice; it is clear that this is not a simple concept and involves many factors; not just where you lay your hat.
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