For any claim under the Inheritance (Provision for Family and Dependants) Act 1975, the deceased must be domiciled in England and Wales at the date of death.
If the deceased lived outside England and Wales and was domiciled anywhere else, a claim under the Inheritance Act will fail.
Disputes concerning domicile are only likely to increase as globalisation takes hold, even in these post-Brexit times. Many people move internationally for family or work reasons from their place of origin. What happens after will have a large bearing on their ‘legal’ home.
Domicile and the Inheritance Act
Permanent home
Domicile means an individual’s permanent home. An individual’s domicile is not necessarily the same as their nationality, or the country in which they happen to be living; a person can be a British citizen who has been resident in the UK for many years and yet be domiciled elsewhere.
Whilst the domicile of origin can never be extinguished, it can be displaced by the acquisition of a domicile of dependency or choice.
In the case of Kebbeh v Farmer [2015] the Court took the opportunity to restate the principles that govern questions of domicile in Inheritance Act claims. The deceased, Malcolm Mitchell, died in The Gambia in September 2011. His last Will was dated May 2006 and was executed in Birmingham. Aside from minor bequests, his estate divided equally between three daughters from two marriages.
The claimant was the deceased’s second wife, who did not feature in the May 2006 Will. She therefore made a claim against the estate under the Inheritance Act.
The Court noted the deceased had lived in England until around 1994, when he moved to The Gambia after the divorce from his first wife, with whom he had two daughters. Thereafter he rarely visited the UK despite retaining property and close family connections in England.
The deceased then married the claimant in 2000 and went on to have a third daughter. By all accounts it was not a happy marriage. The claimant was from The Gambia and wished to live in the UK but vice versa, the deceased did not.
There was a separate question of whether the deceased had in fact divorced the claimant under Gambian law and the Judge found that that was the case. But the essential question for the Court was whether the deceased had changed his domicile of origin by moving to The Gambia. If he had, the claimant’s claim under the Inheritance Act would fail.
Deceased’s intentions
To answer the question of domicile the Judge had to focus upon the deceased’s intentions and determine whether he planned to live in The Gambia permanently or whether it was temporary.
It was noted that he never applied for Gambian citizenship but did apply for annual residency, to the extent that it became no more than a formality.
Witnesses (notably the deceased’s sisters) also confirmed that he expressed his firm intention to live the rest of his life in The Gambia and to be buried there. He had asked his sister: “Why on earth would I want to live anywhere else?” and showed her the plot in which he hoped to be buried (for reasons not explained, this did not happen and his body was eventually returned to the UK).
The deceased had also given up his business interests in the UK, perhaps to concentrate on a hotel project in The Gambia. But he had purchased investment properties in the UK for his two daughters based here, although these remained in his name and formed part of his residuary estate.
Investigations surrounding domicile inevitably require a detailed examination of the deceased’s life. In Kebbeh, there was considerable evidence put forward by both sides concerning the number of days spent by the deceased in the UK, the reasons why he went back and forth, what interests he held in each country and of course, what he told others about where he wanted to be in the future and why.
Whilst it could be said that there were signposts that suggested domicile in each direction, the Judge found that after reviewing case law, the deceased had a settled intention to remain and live indefinitely in The Gambia, and that intention became stronger over the years. Therefore he was domiciled in The Gambia and on that basis, the Inheritance Act claim failed.
The question of domicile does not usually arise in Inheritance Act claims as it is often immediately apparent whether the deceased was or was not domiciled in England and Wales. But this factor should nevertheless be near the top of a list of matters to address at the outset, because even a strong inheritance claim cannot go any further if the domicile criteria is not met.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.