Residence is About Physical Presence, But Domicile is a State of Mind

The question of where an individual is domiciled is often of crucial legal significance. However, as a High Court ruling recently reviewed by contentious probate expert Guy Platon showed, the concept of domicile can be highly slippery and has much more to do with a person’s state of mind than it has to do with residence.

The case concerned the estate of a widow who died in Pakistan at the age of 75. By her final will, made in 2017, she left the entirety of her estate to her great-nephew. That represented a radical departure from an earlier will, dated 1993, which benefited various members of her and her husband’s families.

The 14 living beneficiaries of the 1993 will lodged proceedings in Pakistan, seeking a declaration that the 2017 will was invalid. They argued, amongst other things, that the document was a forgery or that the widow lacked the mental capacity required to make a valid will. The executor of the 2017 will launched a parallel claim in London seeking to have it admitted to probate.

An issue thus arose as to whether the probate claim should be stayed pending the outcome of the validity proceedings in Pakistan. Critical to that issue was the question of whether the widow was domiciled in England or Pakistan when she made the 2017 will and at the time of her death.

Ruling on the matter, the Court noted that there was no dispute that the widow’s domicile of origin was Pakistan, where she was born. The question was whether England had become her domicile of choice.

She had moved to England to live with her husband in 1965 and resided in this country for 50 years. The couple owned a matrimonial home in England. Whilst retaining her Pakistani citizenship, she also became a British citizen. Following her husband’s death, she flew to Pakistan on a one-way ticket and lived there with a relative for the remaining three years of her life.

The Court noted that residence for a short period of time – even a few days – may be sufficient to establish a domicile of choice. The length of the widow’s residence in England was of limited relevance and the real question was whether she intended to make her home in this country permanently or indefinitely.

The Court found that the widow never abandoned her domicile of origin and that she remained domiciled in Pakistan throughout her life. Even if England had become her domicile of choice, she abandoned that domicile on returning to Pakistan. She had put the matrimonial home on the market and had told friends, family and medical professionals that she would not be returning to England.

Staying the probate claim, the Court noted that the living beneficiaries of the 1993 will were all in favour of the dispute being resolved in Pakistan. Proceedings had been launched in Pakistan prior to the probate claim and material witnesses, including doctors who treated the widow prior to her death, were all in Pakistan.

Proceedings in Pakistan would be less expensive than they would be in England and the Court was not persuaded that the executor of the 2017 will would not receive substantial justice in Pakistan. The Court concluded that Pakistan was the most convenient and appropriate forum for the validity of the 2017 will to be tested.

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