Why is domicile important when disputing a Will?

Disputing a Will is a complicated process; one made more so if there are questions over where the deceased was domiciled.  This must be ascertained before a claim can be made against an estate and here Kevin Horn, Private Client Partner, explains why this is and what evidence may need to be provided should you be considering disputing a Will.

What is domicile?

A person’s domicile is someone’s permanent home, and it does not necessarily mean that it is the same as their nationality or the country they were living in when they passed away.  The ‘domicile of origin’ follows a persons father’s domicile on the date of their birth, but it is possible to change this and adopt either a ‘domicile of choice’ or ‘domicile of dependence’.   “This is important when it comes to claims against an estate as if the person was domiciled outside of England and Wales at the time of their death then under the Inheritance (Provision for Family and Dependants) Act 1975, the claim will automatically fail,” begins Kevin. 

The main confusion comes when a person has moved to another country but still has interests or investments in the UK.  “This was clarified to an extent with the case of Kebbeh v Farmer,” continues Kevin.  “In this case, the husband was living in the Gambia at the time of his death having moved there in 1994.  He married his second wife in 2000, and made his last Will in England and Wales in 2006.  Upon his death, the Will showed that he wished his estate to be divided equally between his three daughters, which led to his second wife bringing a claim for a share of the estate under the Inheritance Act.  The question for the Judge in this case was whether he had changed his domicile from the UK to the Gambia having moved there, and if so, the second wife’s claim would automatically be unsuccessful.”

In this case, there were a number of factors and the deceased’s life was scrutinised to look for evidence of his domicile.  “The final decision by the Judge was that despite extensive evidence from both sides, the deceased’s domicile was the Gambia when he died,” explains Kevin.  “While he still retained family connections and had property investments in the UK, he rarely visited, and he had informed his sister that he did not wish to live anywhere else in the world and showed her the plot where he wished to be buried in the Gambia.  Both of these facts showed the his intention to remain and live indefinitely in the Gambia.”

Disputing a Will

If domicile has been proven to be in England or Wales, then the next step in disputing a Will would be to ascertain the grounds for a challenge.  “There are certain rules around contesting a Will, but generally speaking this can be done if a person has been excluded from a Will, inherited a small amount or have not inherited as much as they need to maintain their standard of living that may have been provided by the deceased,” continues Kevin.  “There have been a number of reported cases recently where the Court was asked to consider making provision in favour of a beneficiary which the deceased did not make in the Will, the most notable of which was Ilott v Mitson and others.  Alternatively, claims can be made that the deceased did not have mental capacity at the time of making the Will, or was unaware of the contents of the Will.” 

Kevin concludes, “A similar case to Kebbeh v Farmer is currently ongoing, and we are keen to see the outcome of that decision.  It is important to remember that every case will be different when it comes to a disputed claim under the Inheritance Act, and it is important that if you are considering this step you seek legal advice to ascertain the strength of your claim and the likelihood of success.  With over 5 million people having left the UK to set up life in another country, it is likely we will see claims of this nature continue to increase.”

If you are considering disputing a Will, or you have questions about a deceased’s domicile, you can contact Kevin or the Private Client team on 01329 222075 or email kevinhorn@warnergoodman.co.uk.