Mark Jones explores the tricky issue of domicile of origin over domicile of choice in Morris v Davies
The recent decision of the High Court in the case of Morris v Davies  EWHC 1773 (Ch) emphasised the tenacious nature of a person's domicile of origin and the intensely fact-based approach to considering assertions of substitution of the same by an alternative domicile of choice.
The dispute arose from the administration of the estate of the late Owen Davies, who was born in England on 1 November 1963 and who died unexpectedly of a heart attack in Paris on the 26 November 2008, aged just 45. What happened thereafter informed much of the considerable antipathy in the case and the media interest at the time of the trial, where those close to the deceased agreed to and did conceal the fact of his death and his funeral from his family, with such a degree of success that for several months after both events they remained in complete ignorance.
One particularly resonant piece of evidence was that on Christmas Eve 2008 in response to a text message sent by his brother inquiring whether the deceased would be returning to England for a customary Boxing Day gettogether, his fiancée replied with a text message stating: "Sorry. Won't be able to make it this time. Shall explain later."
The family finally learned of the death of the deceased nearly four months later, after messages were left by the coroner ahead of an inquest.
The proceedings concerned a trial of issue between the claimant executor, who asserted that the deceased retained his English domicile of origin, and defendant family members who claimed that he died domiciled in Belgium.
The question of domicile had significant implications for the devolution of the deceased's estate in that his last will, apparently valid under the Wills Act, was alleged to be invalid as a matter of Belgian law.
There are several relevant English principles of domicile, as derived from Dicey, which are set out in the leading case of Barlow Clowes (see below). English law provides that acquisition of a domicile of choice is contingent upon a combination of residence and intention of permanent or indefinite residence, the animus manendi. This was the test that the defendants had to meet.
The defendants made the following key points.
• At the date of his death, the deceased had lived outside England for over seven years.
• Upon leaving England he had expressed his intention in writing to official bodies (HMRC, his local authority, his local vet) to do so, and to live and work in Belgium, 'indefinitely'.
• For all or most of those seven years he had cohabited with his Belgian fiancée, save when working, from 2001 in Belgium and latterly for many years in France.
• On several occasions when changing and declaring his registered address for official purposes he had repeatedly specified addresses in Belgium and not France.
• He had registered for and paid tax in Belgium.
• His much-loved cats had remained in Belgium throughout.
• He was engaged to a Belgian national, planning to marry her.
• They proposed having children.
• While she had purchased a residential property in Belgium, they had together instructed architects, and the deceased had committed to substantial capital contributions in respect of refurbishment and development where it was intended that they should reside for the foreseeable future.
• Besides a pied-a-terre in France as an adjunct to their jobs, they had no expressed desire or plan to live anywhere other than Belgium, and specifically in her house following its refurbishment to their joint specifications.
Having concluded that the deceased had a domicile of origin in England and Wales (as was common ground), after expressing some difficulty the deputy judge held on a review of the evidence that it was "probably right to say that Owen was resident in Belgium, and if necessary I so hold...".
The defendants then faced the more difficult issue that physical residence of itself is insufficient: the deceased must also be shown to possess the animus manendi, the intention to make his sole or principal permanent home in his country of residence, and of continuing to reside there indefinitely.
There is a presumption against a change of domicile, and the burden of proving that the deceased acquired a domicile of choice in Belgium, supplanting his domicile of origin in England and Wales, rested upon the defendants. A change of domicile is not lightly inferred, and must be clearly and unequivocally proved.
The starting point is the domicile of origin. As Lord Macnaughten said in Winans v Attorney-General (1904) AC 287, 290: "Domicil of origin, or, as it is sometimes called, perhaps less accurately, 'domicil of birth', differs from domicil of choice mainly in this – that its character is more enduring, its hold stronger, and less easily shaken off."
It is this strong hold that the defendants tried, and failed, to shake off.
How should the court approach the exercise? A finding as to domicile requires a careful evaluation of all the facts, a point illustrated by a memorable passage from the judgment of Mummery LJ in Agulian v Cyganik  EWCA Civ 129: "...the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death.
"Soren Kierkegaard's aphorism that 'Life must be lived forwards, but can only be understood backwards', resonates in the biographical data of domicile disputes."
The principles were further illustrated in Holliday v Musa  2 FLR 702, per Waller LJ: "One must further be satisfied that the situation is not one in which (the propositus) has simply not finally made up his mind because, as Scarman J said in Fuld, in such a situation the domicile of origin is retained" (Re Fuld's Estate, Hartley v Fuld  P 675).
The court in Morris v Davies also considered Barlow Clowes: "There is a strong line of case law, binding on this court, that the domicile of origin is tenacious... the question was whether it had 'with perfect clearness and satisfaction' been shown that the testator had 'a fixed and settled purpose' or 'a determination' or 'a fixed and deliberate intention' to abandon his American domicile and settle in England.
"...as a general proposition, the acquisition of any new domicile should in general always be treated as a serious allegation because of its serious consequences... However, what evidence is required in a particular case will depend on the application of common sense to the particular circumstances."
Applying these tests, the deputy judge was not persuaded that the deceased had substituted for his English domicile of origin a domicile of choice in Belgium. He found the following:
• The deceased retained property in England, albeit that much of the reason for this was a desire to remain on the English property ladder.
• The deceased's attitudes remained almost jingoistically British: he never developed affection for Belgium or Belgian culture. The deceased never learned Flemish, he retained a UK passport and driving licence, his friends were English and he spent his holidays in England.
• The deceased never purchased property in Belgium, where his assets consisted of one Belgian bank account containing only modest sums.
• The deceased wished to educate any children he and his fiancée had at boarding school in England. He made plans to marry in England, and had expressed a rather vague intention to retire to England.
• While the house provided a degree of permanence in Belgium, the deceased was unhappy in his job and looking towards a move which, if it took him so far afield as to be unable to continue his weekends in Belgium, he would have taken, and his fiancée would have followed him.
• The house itself was very much the fiancée's property, suggesting that the deceased was not willing to commit to a future in Belgium.
• While the cats were a draw to Belgium, the deceased was accustomed to living away from them and leaving them in safe hands.
As to the letters written in 2001 to the effect that the deceased was going to live in Belgium "for an indefinite period", the deputy judge held that this meant no more than he did not know when (not if) he was coming back.
Ultimately, applying Kierkegaard's aphorism, the deceased "remained an Englishman abroad" and "would have been horrified to learn that after his death it would be suggested in open court that he had acquired a domicile of choice in Belgium".
Burden of proof
This was very much a decision on the facts, as the court held them. The key facts that seemed to underpin the decision concerned the absence of title to or significant investment in the Belgian property, and the retention by the deceased of British identity generally.
The retention of property in England certainly did not assist the defendants, albeit that it seemed to be accepted by the judge that this was rather more with a view to investment as opposed to any immediate plan of return. However, the expressed desire of the deceased to seek alternative employment pretty much
anywhere in the world and, if offered, to take such employment and to befollowed overseas (if necessary) by his fiancée, carried significant weight.
Notwithstanding that the argument was advanced that there is no reported authority in which the deceased has declared to the authorities of his domicile of origin that he intends to go to live and work in, say, Ruritania for an indefinite time, and has then done precisely that, in the process registering with the local authorities as a resident of Ruritania, paying his taxes there, cohabiting with his Ruritanian fiancée and becoming engaged with her in Ruritania in the development of a property to be their home, but in which the courts have held that he yet retains his domicile of origin in England and Wales on the basis that he might yet have successfully applied for an unspecified job somewhere else, the defendants were refused permission to appeal.
This case turned in the end upon an analysis of the animus manendi of the deceased. Any act, event or circumstance in the life of an individual may be evidence from which the state of his mind may be inferred, and the law required the intention asserted by the defendants to be clearly and unequivocally proved.
Here, notwithstanding the arguments deployed by the defendants, the deputy judge found it "clear" that the deceased never lost his domicile of origin of England and Wales. Ultimately, for all that the evolving close connection with Belgium satisfied him as to the test of residence, the defendants fell short of satisfying the considerable burden of proving that the tenacious bonds of domicile of origin had been severed.
As in so many other cases, Morris v Davies turned very much upon the interpretation to be placed upon a medley of facts, and perhaps shows the uphill struggle to be faced by those that assert a loss of domicile of origin, except in the clearest possible cases.
The relevant English principles of domicile, from Dicey (Dicey, Morris and Collins on the Conflict of Laws (14th edn, 2006)) are set out in the leading case of Barlow Clowes (Barlow Clowes International Ltd v Henwood  EWCA Civ 577 per Arden LJ):
• No person can be without a domicile.
• Every person receives at birth a domicile of origin.
• Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.
• A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.
• No person can at the same time for the same purpose have more than one domicile.
• An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
• 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.
• 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.
This article was first published in Private Client Adviser, Vol. 17, issue 7.
The article may be accessed by subscribers by following this link.