High Court decisions confirms that, when contesting probate, a person’s domicile need not be the same as their place of birth or even where they were living at the time of their death. Thankfully, the decision has also provided some clarity on this tricky area of the law.
A person’s domicile has important effects on their legal rights. Claims for “reasonable financial provision” from an estate, commonly made where somebody has been left out of a will, cannot succeed unless the deceased was domiciled in England or Wales. This was the preliminary issue in dispute in the case of Proles v Kohli  EWHC 767 (Ch).
The decision in Proles involved a claim by the daughter of Calcutta-born businessman Baldev Kohli (“the Deceased”) for financial provision from his £2.5 million estate. The Deceased, who died in December 2015, left his entire fortune to his wife and two sons.
The Court heard that the Deceased lived something of a double-life. He never divorced his wife (“the Defendant”), who lives in India, but he had been living in the UK on and off since about 2003. During this time, he had at least two extramarital romantic relationships.
One of his relationships was with Ms Melissa Proles. Their daughter, born in 2013, is the Claimant in the case. The evidence showed that the Deceased was a ‘doting’ father, calling the Claimant his ‘princess’, and buying her expensive gifts such as an iPad.
The Deceased’s double-life raised a preliminary question: where was the Deceased domiciled? Was he domiciled in India, where he was born and where his wife lived? Or was he domiciled in England, where he had spent the better part of the last 14 years of his life?
Finding of English Domicile
Master Clark held that the Deceased had been domiciled in England since at least 2010. In coming to its conclusions, the Court helpfully reviewed the applicable law and explained the type of evidence that it will consider.
Domicile is not the same as citizenship or even residence. To acquire domicile in a new country, a person must have the intention of residing there permanently or indefinitely. The Court will consider any evidence of a person’s residence in a country and of their intention to reside there.
In the present case, the Court considered everything from witness evidence from family and friends, to evidence of the Deceased’s property portfolio, to emails and text messages. When reading the Court’s decision, however, it becomes clear that the witness evidence was the most influential factor in shaping the court’s decision.
The Court’s findings were split into three categories: the Deceased’s business activity in India and England, his social and emotional connections to India and England, and his professional connections to each country. In the first category, the Court rejected the argument that the Deceased had spent most of his working life in India and instead noted how most of his assets at the time of his death were in England. In the second category, Master Clark focused on the numerous emails and text messages with Ms Proles which showed that the Deceased’s “emotional centre of gravity had moved from England to India”. By contrast, the lack of evidence of any close relationship with the Defendant suggested that the Deceased only provided for her because he felt obliged to do so. Arguably, the Claimant was unsuccessful in the third category, as the Court felt that the fact the Deceased relied on English health care was not particularly relevant.
For people looking to defend against similar claims, it is worth noting that the Court felt that official government documents were not “inconsistent with a settled intention to remain in the UK, as shown by the Deceased’s actual conduct”. In other words, the fact that the Deceased had an Indian passport and Indian identity card, and that he only had a limited visa to live and work in the UK, was not sufficient to prove he was domiciled in India.
Last, the Court held that the Deceased did not give up his English domicile by flying back to India shortly before his death. The evidence strongly suggested he intended to return to England to, amongst other things, continue his medical treatments. Interestingly Master Clark held that, even if the Deceased had gone to India knowing he was going to die there, this would not be sufficient to show he intended to live in India indefinitely “because, for all practical purposes, there was, sadly, no life remaining to be lived by him”.
By finding that the Deceased was domiciled in the UK, the Court has cleared the way for the Claimant to pursue her claim under the Inheritance (Provision for Family and Dependants) Act 1975. The next hurdle for the Claimant will be to convince the Court that, because she was left out of the Deceased’s will, she should be awarded an amount of money as “reasonable financial provision”.
It will be very interesting to see how Proles is treated in future cases. One thing that is sure, at least, is that there is likely to be a rise in cases turning on domicile in coming years as people are increasingly mobile and living in different countries.
If you are thinking about making or defending against a claim where domicile is an issue, or if you have any questions about this article, please contact Nicholas Choiniere of our Contentious Private Client Department at 0113 336 3349 or email@example.com.
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