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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It is often difficult to show that a ‘domicile of origin’ has been replaced by a ‘domicile of choice’ and this case provides rare guidance on matters the court will take into account.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 755217

Email

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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

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