In the recent case of Kebbeh v Farmer  EWHC 3827, the English High Court applied established principles of domicile in relation to claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act") and held that: (i) the deceased was domiciled in The Gambia at the time of his death, and (ii) therefore the Claimant, Ms Kebbeh, was not able to claim under the 1975 Act. The case serves as a helpful reminder of the principles applicable in such cases.
The deceased, Mr Mitchell, died in The Gambia in September 2011. He had made a will five years previously in May 2006. The will made a small number of minor bequests, with the residuary estate divided equally between his three daughters from two marriages. The Claimant, Mr Mitchell's second wife, was not included in the will, and brought proceedings in England for financial provision under the 1975 Act against the Defendants, being the deceased's accountant and executor Mr Farmer and his three daughters.
Mr Mitchell had lived in England until 1994 when he moved to The Gambia following the dissolution of his first marriage, from which he had two daughters. The deceased retained substantial property in England, and also had family connections in England. In 2000 the deceased married the Claimant, a Gambian woman, with whom he had a third daughter. This marriage was strained as a result of the Claimant's desire to relocate to England, and as a result of the deceased's alleged womanising. There was an issue to be tried separately at a later date as to whether a Gambian divorce had been effected.
It was common ground between the parties that the Claimant could only claim under the 1975 Act if the deceased was domiciled in England and Wales on his death. The Court found in favour of the Defendants that Mr Mitchell was domiciled in The Gambia on his death.
In considering domicile, His Honour Judge Purle QC, referred to the principles set out in Barlow Clowes International & Others v Peter Steven William Henwood  EWCA (Civ) 577. In particular, the Judge focussed on the deceased's intentions (which are set out as relevant principles (vi) and (vii) of Barlow Clowes) and the "key issue [whether] he intended to live there permanently or at any rate indefinitely".
The deceased had remained an English citizen until his death and had never applied for Gambian citizenship, instead relying on renewing an annual residence permit. HHJ Purle QC held that the onus was on the Defendants to show that the deceased's domicile had changed from England to The Gambia. The Judge considered that this burden had been met and that the deceased's "clear intention" was to be domiciled in The Gambia, taking into account:
- evidence of conversations held between the deceased and others in which he expressed his intention to live the rest of his life in The Gambia, and be buried there;
- the deceased had lived the majority of the last 20 years of his life in The Gambia and had formed a real and long-term connection to the country;
- while the deceased had spent significant periods in England, this was as a result of the Claimant's desire to live in England and did not negate the deceased's intention to live in The Gambia;
- the deceased's relationship with the Claimant was no longer equivalent to a marriage, and accordingly the Claimant's residence in the UK and the deceased's sponsorship of her UK citizenship application did not suggest that the deceased was domiciled in England; and
- the deceased was no longer involved in his business interests in England.
This case is a helpful reminder of how the courts will consider the relevant principles in adjudicating on a party's domicile. In particular, Kebbeh illustrates that the judge will go through a detailed examination of the deceased's actions and statements to establish whether a change of domicile had taken place.
The issue of domicile is likely to become of growing importance in an increasingly internationalised world. Kebbeh re-emphasises that a clear intention to reside permanently or indefinitely is required to effect a change in domicile.