Succession problems for ex-pats – The Morris v Davies case

 In Wills

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Succession problems for ex-pats

The case of Morris v Davies dealt with determining which law applied to the deceased’s succession.  More specifically, was the deceased’s English law Will valid or should Belgian succession laws apply to his estate?

In one camp were the deceased’s executors and his fiancée: they contended that the deceased, Owen Davies, had never ceased to be English domiciled.  As a result, they argued, his English law will was valid.

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In the other camp were members of the deceased’s family, who contended that the Will was not valid, and that Belgian law applied to the deceased’s succession.

The life of an ex-pat

The facts were relatively straightforward.  In 2008, Owen Davies sadly died unexpectedly of a heart attack, in his mid-40s, whilst working in France.  He was a British national, having left the UK in 2001 to work initially in Belgium.  He later left that job and started work for Renault in France in late 2002.

Owen had registered with the Belgian authorities but did not register in France (he apparently gave up trying to conquer French bureaucracy!).  He and his fiancée spent their working week in France but their weekends in Belgium, with Owen’s cats.

A preliminary hearing was held to address the question of where Owen was domiciled at the time of his death.  If he was domiciled in Belgium, his English law Will may not have been valid.

Determining domicile

The Deputy Judge, Mr Charles Hollander QC, noted that in England & Wales domicile has a technical meaning.  It is not the same as the concept of habitual residence, although the two are closely linked.

Quoting Dicey, Morris and Collins on the Conflict of Laws (14th edition 2006) and Barlow Clowes International Ltd v Henwood (2008) EWCA Civ 57, the Deputy Judge listed 10 points relating to domicile:

  1. A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home (although a person may sometimes be domiciled in a country despite not having his permanent home there);
  2. No person can be without a domicile;
  3. No person can have more than one domicile at the same time;
  4. An existing domicile is presumed to continue until it is proved that a new 
domicile has been acquired;
  5. Every person receives at birth a domicile of origin;
  6. Every person (over the age of 16) can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise;
  7. Any circumstance that is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice;
  8. In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious;
  9. A person abandons a domicile of choice in a country by ceasing to reside there or by ceasing to intend to reside there permanently, or indefinitely, and not otherwise;
  10. When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives.

It was clear that Owen had started life with an English domicile of origin.  The question therefore was whether he had acquired a domicile of choice elsewhere before his death.  On the facts it seemed clear Owen had no intention of becoming domiciled in France, despite working there.  He had applied for jobs in other countries and apparently wasn’t happy with his French employment. Although he lived in France during the week, he spent his weekends in Belgium and his holidays in England.

Owen’s family argued instead that he’d acquired a domicile of choice in Belgium.  They pointed out that he’d moved his beloved cats to Belgium and visited them every weekend.  He was still registered with the Belgian authorities, even though he worked in France.  They argued that his primary residence was in Belgium and that Owen saw Belgium as his permanent home, so that he had lost his English domicile of origin.

Burden of proof

There is a strong line of case law that a domicile of origin is hard to lose.  In Winans v Attorney-General [1904] AC 287 it was held that the character of a domicile of origin “is more enduring, its hold stronger, and less easily shaken off” than a domicile of choice.

The family therefore had a higher standard of proof in showing that Owen had lost his English domicile of origin.

Types of evidence

The court looked at all the facts relating to Owen’s move to Belgium.  Evidence was heard that Owen felt he had to leave the UK to work abroad, after a major falling-out with his then boss.

When Owen’s fiancée bought a home in Belgium, Owen did not contribute to the purchase (although he did pay some expenses) and the property was not held in joint names.  Throughout the time he lived abroad, Owen kept a property in the UK.

Perhaps more crucially, Owen made no effort to learn Flemish or to acquire Belgian nationality.  He kept his British passport and driving licence. He also described himself in writing as an ‘expat’ and in an email, shortly before his death in November 2008, Owen wrote:

I am British and my house is about 8km south of Stratford-upon-Avon”.

The Deputy Judge held that the family had failed to prove Owen adopted a domicile of choice in Belgium before his death.  Owen was therefore still English domiciled and he was entitled to do an English law Will.

Clearly these notes are intended as guidance only and should not replace proper legal advice, either in England or in any overseas jurisdiction.

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