Location, location, location – where should a probate dispute be heard?

 In Probate, Wills

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In the recent case of Morris v Davies [2011] EWHC 1773 the deceased, Owen Davies, died unexpectedly in Paris. He was born in England and was a British Citizen but at the time of his death he was based in Belgium and weekly commuting to a place just outside Paris. His last Will was made on 30 March 1996. Which jurisdiction should deal with the validity or otherwise of his Will?

As people move freely within the EU so it is likely to become more common that their affairs will involve the private international law of different jurisdictions and the domestic law and traditions of different countries.

As England is in the minority of countries which operates under the common law jurisprudence within an EU dominated by countries who adopt different forms of civil code system the inevitable clash will be felt with increasing regularity. So which country’s courts must applicants and claimants turn to resolve their probate disputes?

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The facts

By his Will Owen Davies appointed his friend (Adrian Morris, the claimant) and Mr Morris’s then girlfriend, now wife, as his executors. He left his whole estate to his Uncle Clive. The estate was not large and the dispute was not about money.

Certain family members (the deceased’s elder brother Adrian, his mother Maria, his sister Adrienne and his other brother Edwin) were disputing the Will as was Natalie de Vleeschauwer (Natalie), Owen’s fiancée, who is a Belgian national, and Mr Matthew Judson, who was named in an accompanying letter of wishes.

The family argued that the Will was a sham. They suggested Owen died domiciled in Belgium and that succession to his movables was governed by Belgium law, that under that law the Will was void and that it was also void as to immovables in English law since it arose because of the undue influence of Uncle Clive.

This hearing needed to decide Owen’s domicile and as part of that discussion some unusual facts came to light:

  • Owen died in Paris at the young age of 45 as a result of a heart attack which he suffered whilst attending a seminar
  • He was working at the time near Paris and was commuting there weekly from Belgium
  • Natalie was interviewed on the day of his death by Paris police and promised to advise the family. She contacted Adrian Morris and Uncle Clive as soon as she heard of Owen’s death but not the others.
  • A few days later Clive, who described himself as next of kin, granted Natalie authority to release Owen’s body after an autopsy following which she arranged a cremation. She stated his family had been informed of his death.
  • Owen was cremated in England on 23 December 2008. The family were not told despite a large gathering of mourners.
  • On 24 December 2008 Adrian Davies sent a text to what he thought was Owen’s mobile phone asking if he was coming over for Christmas and if so whether he would come to Bromley on Boxing Day.
  • Natalie replied saying ‘won’t be able to make it this time. Shall explain later.’ Adrian assumed it was from Owen.
  • The family did not discover Owen had died until 23 March 2009. Obviously this delay caused great distress and hostility.

The problem of credibility of Natalie and Adrian Morris’s evidence was tested as a result of this cover-up. It was however apparent from the oral evidence that Owen did not agree with the religious views of his family and did not want them involved in any way in his affairs after his death. What happened was allegedly the carrying into effect of promises made by Natalie and Clive to the deceased during his lifetime.

Deciding the issue of domicile would rest on the evidence of those who knew him well and could explain his intentions and aspirations. So the court regarded it as important to determine the credibility of Natalie and Adrian Morris as witnesses when their strong motivation might be to put their evidence in a less than objective manner.

The judge found Natalie’s evidence to be pertinent and detailed. He thought she was an intelligent and credible witness. Similarly, Adrian Morris was a reliable and truthful witness who demonstrated he knew his friend well and had great affection for him. He saw him four or five times a year and being resident in England he was familiar with his ‘English’ interests, like Owen’s property in Stratford-upon- Avon.

From the family side his sister Adrienne who lived in California was also seen as truthful however she had not seen Owen for four years and was not aware he was intending to marry Natalie. Her knowledge of Owen was therefore limited.

Adrian Davies also gave evidence. He is a barrister and some of his ‘evidence’ tended to be arguments drawn from documents rather than fact. He put his evidence in contentious terms. The intensity of his feelings and hostility was apparent in his testimony.

It became clear that whilst he and Owen has been friends as children they fell out between 1994 and 2002 over a dispute over their grandfather’s death and the administration of his estate. So much so that in those years Owen only remained in contact with his sister and Clive.

In 2002 Owen visited his mother’s house in Bromley with Natalie to house-sit her dogs whilst his mother was on holiday and since that time his relationship with the family recovered. Adrian then saw his brother twice a year in Bromley on Boxing Day and often over the August Bank Holiday. They were not close but had a decent relationship since 2002.

It was clear to the Judge that in the last years of Owen’s life his family members knew less of Owen than Adrian Morris and Natalie, who knew him best.

The law

Charles Hollander QC, sitting as a Deputy Judge, reviewed the law on domicile. He was clear that Owen had a domicile of origin in England & Wales. The question was whether at some time between 2001 and his death he acquired a domicile of choice in Belgian which remained until his death.

He confirmed that in order to show that Owen had acquired a domicile of choice in Belgium it was necessary to prove that:

  • He was resident in Belgium and
  • Had an intention of permanent or indefinite residence

Residence in a country is for the purposes of domicile physical presence in that country as an inhabitant of it. Whereas, for the purpose of deciding the intention to permanently reside the starting point is the domicile of origin which is more enduring and is less easy to shake off.

The judge noted that recent cases before the Court of Appeal had been critical of the trial judges’ approaches so the question of domicile had to be approached with care. He noted that it had said in Agulian v Cyganik [2006] EWCA 129 that it was necessary to look at the whole of someone’s life and that he retained his domicile of origin until it was proved that he intended to reside permanently or indefinitely elsewhere.

In referring to Barlow Clowes International Ltd. v Henwood [2008] EWCA 577 the Deputy Judge said that Lady Justice Arden had said there that the domicile of origin is ‘tenacious’.

He identified that Owen had three passions in life:

  • Cats
  • Scrap metal &
  • Natalie

He left England because he was unable to work in his chosen career at the time due to a falling out with his boss which ended with a non-competition clause on his employment. He had worked in the patent attorney’s office of Land Rover after taking an engineering degree and partial patent attorney exams. He met Natalie at a seminar in Strasbourg.

On 1 May 2001 he started a new job in Belgium and stayed in temporary accommodation. Whilst he worked in Belgium Natalie worked in France and they met up at weekends in Belgium. His cats lived in Dikkele in Belgium and were looked after by Natalie’s father during the week. Owen used an address in Roborst, Belgium (another of Natalie’s relatives) as his address for mail and for his Belgium residence card.

In September 2002 Owen began to work for Renault in France and although he tried to register in France he did not in the end manage it because of his frustrations with their bureaucracy.

In July 2005 Natalie left her job and had an 18 month gap during which she hoped to find a family property for her and Owen and to become pregnant. She did not get pregnant and so she returned to work in Paris. Owen meanwhile became dissatisfied with his work at Renault and started to look for other work but he had not found another post at the time of his death. Owen and Natalie moved in together and spent the week in Paris and the weekends in Dikkele with the cats.

In April 2007 a run-down property came on the market in Belgium which had both a living area and a workshop. Natalie thought this would suit them well and she bought it with her money by July 2007. Owen was not entirely convinced. He had a tendency to spend his spare cash on scrap metal so he and Natalie kept their finances separate. He was to fund the refurbishment of the workshop whilst Natalie was to handle the living area. Although Owen was initially sceptical about the project he warmed to it over time. It was always regarded between them as Natalie’s property.

Owen still owned his property in Stratford-on-Avon and although he talked about selling up and investing his proceeds in doing up his mother’s property because it was nearer the Channel ports this did not actually happen.

Owen proposed to Natalie twice – in 2005 and 2006. She accepted the second proposal. She was of the Catholic faith but not the same background as his family. Owen was a firm atheist. To please her he agreed to marry Natalie in a Catholic church but it had to be in England. By the time of his death the marriage had not taken place.

Owen was described as an ‘expat in Belgium’; he did not learn to speak Flemish and he retained his UK passport. He had bank accounts in England, France & Belgium, signed tax returns in Belgium and joined Belgium motorcycle and gun clubs but most of his friends were English and all his holidays were taken in England. He described himself as British but resident in Belgium commuting to France weekly.

The decision

France was immediately ruled out as a domicile of choice since it was simply a convenient place to live whilst working and Owen never formed any relationship with France.

He did have a more substantial relationship with Belgium but the Deputy Judge did not consider that that he acquired a domicile of choice there because:

  • He retained his property in England
  • He advised Natalie that if they had any children he would wish them to be educated in England.
  • He said to Natalie that he wanted to retire to England and they planned to marry in England.
  • He would have moved to wherever he could find a new job and Natalie would probably have moved with him despite purchasing the property in Belgium, which was definitely her property.
  • The cats were resident in Belgium but he seemed to acquire cats wherever he lived.
  • Letters written in 2001 stating that he was going to live in Belgium for ‘an indefinite period’ simply meant at that time he did not know when he was coming back.

As regards residence and an intention to remain permanently or indefinitely the Deputy Judge thought that Owen did reside in Belgium as a question of fact but he was not given any expert evidence as to the nature of ‘habitual residence’ as it relates to Belgium law so made no further comment on it.

Practice points

  1. Always start by ascertaining a person’s domicile of origin from the principles of law laid down in Dicey, Morris & Collins on the Conflict of Laws (14th Edition 2006)
  2. Switching to a domicile of choice requires effort – a combination of residence in that place AND an intention to remain permanently or indefinitely
  3. “Life must be lived forwards but can only be understood backwards” (Soren Kierkegaard) so inevitably in disputes of this kind credible factual evidence from truthful witnesses will be essential in ascertaining the intentions of the deceased
  4. Without satisfactory evidence of a change of domicile the domicile of origin sticks like glue as you can only have one domicile at any one time and if there is no apparent domicile of choice the domicile of origin is resurrected
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