Morris v Davies & Ors

A domicile of choice requires both residence in the country concerned and an intention to reside there permanently or indefinitely. A domicile of origin is adhesive and continues until the evidence establishes that a new domicile has been acquired. The court must assess the whole factual history, including the quality of residence, personal connections, declarations, property and future plans. Residence for work, registration, financial or practical convenience, and an indefinite but undefined period abroad do not necessarily establish the required intention. The burden remains on the party asserting the new domicile. On the evidence, the deceased remained domiciled in England.

The claimant sought to admit Owen Robert Treharne Davies’s will to probate. The first to third defendants alleged that Owen was domiciled in Belgium when he died, so that Belgian law governed succession to his moveable property. They also challenged the will on other grounds and sought the claimant’s removal as executor.

The court tried domicile as a preliminary issue. Owen had worked in Belgium and France, maintained connections with England, retained English property and intended, on the claimant’s case, ultimately to return to England. The central issue was whether he had acquired a domicile of choice in Belgium before his death.

1. Outcome. The court held that Owen never lost his domicile of origin in England and remained domiciled in England at death.
2. Applicable principles. Following the principles drawn from Barlow Clowes International Ltd v Henwood (2008) EWCA Civ 577, acquisition of a domicile of choice requires residence in the relevant country combined with an intention of permanent or indefinite residence. The existing domicile is presumed to continue until a new domicile is proved. The exercise is fact-specific and must be approached with care because a domicile of origin is tenacious.
3. France. Owen’s connection with France was limited to employment and a weekday residence. He had not registered there and had developed no wider relationship with the country. France was therefore not his domicile of choice.
4. Belgium. The evidence established a substantial connection with Belgium, including residence, registration, work, a bank account, a relationship and the Hovel. It did not establish the necessary intention to settle there permanently or indefinitely. Owen retained English property, British identity and connections, never learned Flemish, retained English documents and accounts, spent holidays in England, planned marriage in England, intended to educate any children in England and contemplated moving for work.
5. The Hovel was the strongest evidence for Belgian domicile, but it was deliberately acquired and treated as Natalie’s property rather than joint property. Owen’s statement that he would live in Belgium for an indefinite period meant only that he did not know when he would return. His circumstances and declarations were consistent with retaining his English domicile of origin.
6. The court considered it probable that Owen was resident in Belgium, but residence alone was insufficient. It declined to determine Belgian-law residence because no expert evidence had been adduced and the issue had not been fairly prepared for trial.