Out of Africa – Domicile for Family Provision

Yesterday we were talking in the office about family members making claims on a relative’s Will. Family provision claims are governed by legislation in the jurisdiction in which they are brought.

However, in most instances the deceased must have been a domicile of or had personal property in the jurisdiction that the claim is brought.

An immigrant who has come to a jurisdiction but who has not formed the intention of remaining, remains domiciled in their country of origin and no one may bring a claim for provision against his estate.

As a corollary an expatriate who left their country many years ago with the intention of returning some day remains a domicile in that country (and a claim under family provision in that jurisdiction remains a possibility).

A recent UK decision, illustrates this provision.

Michael Mitchell was a successful businessman. In 1994 following his divorce he moved to Gambia where he built a home. In 1999 he met Haddy, a Gambian national, and in 2000 they married.

Michael and Haddy returned to the UK for the birth of their daughter Jennifer. They returned to Gambia, but travelled to England twice in 2002.  By 2003, their marriage was showing some strain, partly because Haddy wanted to live in England and Michael wanted to live in Gambia. In 2004 Michael and Jennifer were living in Gambia but Haddy was living in England.

Michael wasn’t a Gambian citizen but applied each year for a residence permit. Although this could be considered equivocal that Michael had not made a decision to acquire a new domicile, he had given clear indications to family and friends – he said to his sister,

‘Why on earth would I want to live anywhere else?’

Importantly he had picked a burial plot in Gambia.

In May 2006, Michael made a Will in England that did not make any provision for Haddy. Michael died in September 2011 in Gambia.  Haddy brought a family provision claim under UK legislation.

Haddy argued that Michael’s business interests and assets in England and an English Will meant that he had continuing ties to England. The Court believed that they showed some enduring connection but the ties were less strong than those to Gambia, there were insufficient indicators that Michael had an intention of returning to England on a permanent basis and that he had acquired a domicile of choice in Gambia.

Therefore Haddy had no right to a family provision claim under UK law.

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