Kohli v Proles

Permission to appeal against a domicile finding should be refused where the proposed appeal merely seeks to re-run the factual evaluation. An appellate court should intervene only for an arguable error of principle, a manifest error on an important fact, or disregard of significant evidence capable of affecting the outcome.

A domicile of choice may be established where a person intends to live in a jurisdiction indefinitely, even if accommodation is temporary or acquired for business purposes. Abandonment requires the relevant intention to cease permanent or indefinite residence. A terminally ill person’s decision to travel to their country of origin to die does not necessarily abandon an existing domicile of choice, particularly where the evidence shows an intention to return.

The appellant sought permission to appeal from findings by Master Clark on 17 April 2018 concerning the domicile of the deceased, Baldev Kohli, in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975.

The Master found that the deceased, whose domicile of origin was India, had acquired a domicile of choice in England and Wales by 2010 and had not abandoned it before travelling to India, where he died shortly afterwards. The proposed appeal challenged the treatment of his residences, his intention to spend his final days in India, his visa and re-entry position, the date when domicile of choice was acquired, and the treatment of later events. The central issue was whether any proposed ground had a real prospect of success.

Permission to appeal refused. The appellant’s criticisms did not disclose a real prospect of success.

1. The Master had not made an express finding on whether the deceased had his sole or chief residence in England and Wales. That omission did not invalidate the judgment. She had identified the requirement, considered the deceased’s property and living arrangements, and made findings from which the conclusion could be understood. A series of temporary homes, including properties occupied while being redeveloped for sale, was not necessarily inconsistent with an intention to make England and Wales a sole or chief residence.

2. The applicable concept of domicile of choice required an intention to continue residing in the jurisdiction indefinitely. The court referred to Udny v Udny (1869) LR Sc & Div 441 and the formulation in IRC v Bullock [1976] 1 WLR 1178. The Master’s finding that the deceased intended to return to England, supported by contemporaneous evidence and the taking of accommodation there, was sufficient to support the conclusion that he had not abandoned his domicile of choice.

3. The Master’s observation that the deceased might have had no practical life left to live did not introduce an impermissible test. A person’s decision, when terminally ill, to remain in another country or to die there need not amount to a decision to abandon a domicile of choice. It may not be possible to infer abandonment merely from the fact of living elsewhere during the final stage of life.

4. The failure expressly to address the deceased’s visa and possible inability to re-enter England was not a significant flaw. The finding that he intended to return for a medical appointment was inconsistent with the suggestion that he necessarily intended to abandon his English domicile.

5. Although the selection of 2010 as the date when domicile of choice was acquired was somewhat curious, the Master had considered evidence extending beyond that date. Later events did not undermine the conclusion. The remaining complaints sought to reargue the facts. An appeal should not crawl over a detailed first-instance assessment absent an arguable error of principle, a manifest error on an important fact, or disregard of significant evidence capable of affecting the outcome.

Permission to appeal was therefore refused.

High Court (Chancery Division): On appeal from orders and judgment of Master Clark dated 17 April and 26 April 2018, Mr Justice Mann refused permission to appeal.