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Don’t be doubtful of your Domicile

30th May 2018 by Rob Kelly

Categories: What's New?
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You may know already that if a person fails to make reasonable provision for a dependant in their Will a claim may be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for provision to be made.

However, you may not know that the English courts can only consider the claim if the deceased was domiciled in England and Wales at the time of their death?

Domicile is an ambiguous concept which was considered by the court in the recent case of Proles v Kohli [2018] EWHC 767 (Ch).

The deceased, an Indian national, had a 9-month relationship with the mother of the 5 year old claimant who brought a claim for reasonable financial provision against the deceased’s £2.5m estate.  The relationship between the deceased and the claimant’s mother ended with the pregnancy.  Unknown to the child’s mother, the deceased was still married to his wife of 33 years in India.  After the child’s birth the deceased was diagnosed with cancer.  He returned to India, where he died.  His Will left his entire estate to his widow and two sons.

The child’s claim for reasonable provision was resisted by the widow on grounds of paternity and because she argued that the deceased remained domiciled in India at the time of his death.  At a preliminary hearing the court rejected the widow’s challenge, holding that there was no evidence to support her claim that she and the deceased had been physically and emotionally close throughout their marriage.  After the deceased had sold his business in India he had travelled widely and invested in the UK property market and a small chain of restaurants in various suburbs.

The court held that although the deceased had been closely connected to England for 10 years before the child’s birth there was, by contrast, no evidence that he had a social life in India.  Further, although the deceased was Sikh by birth, he had broken with tradition by cutting his hair and ceased to wear a turban.  The court held that the deceased intended to return to England from India following his illness and that England was his domicile of choice.  This enabled the child’s claim to proceed.

It is often difficult to show that a ‘domicile of origin’ has been replaced by a ‘domicile of choice’ and this case provides rare guidance on matters the court will take into account.

Marriages and relationships across international borders are common and many people choose to live in countries other than their ‘domicile of origin’.  If you are concerned about the potential legal impact on an estate of a similar issue, please contact us for advice.

If you would like further information about this article please contact Rob Kelly

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Questions relating to this article should be addressed directly to the author.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

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Rob Kelly
  • “Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”

    Paul Jeffcoate - Contentious Probate Client

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

    Dan Collins

  • “ I just wanted to thank you for your great work on the professional negligence case and other cases you have represented Indian Ocean and Tiien through the last few years.”

    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

  • “A case that was initially very straightforward became difficult and, for me, very frustrating. Rob Kelly's calm, lucid and very professional advice and planning were invaluable and led to a good outcome.”

    Don Young

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    Sunseeker London Limited

  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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