The Inheritance (Provision for Family and Dependants Act) 1975 and the Question of Domicile

Feb 19, 2016

A recent High Court judgment has confirmed the importance of establishing domicile before bringing a claim under the Inheritance (Provision for Family and Dependants Act) 1975 (“the Act”).

The Act gives spouses, former spouses, children and specific categories of other applicants, the right to claim either capital or monthly sums from the estate of a person who has died. Most commonly claims are brought on the basis that the deceased maintained the applicant at the date of death. 

Section 1(1) of the Act allows a claim to be made in the case of a person who dies domiciled in England and Wales. It is therefore fundamental to a successful claim to establish that the deceased was domiciled in England and Wales. 

 In the case of Kebbeh v Farmer & Others the deceased was born in England and therefore at birth had domicile of origin in England. However, in 1994 the deceased moved to Gambia where he married his second wife, the Claimant, Mrs Kebbeh. 

The Claimant was born in Gambia but after marrying the deceased expressed a wish to live in England. The Claimant gave birth to the deceased’s child in England and together they spent significant periods of time in England in 2000, 2001 and 2002. 
The court found that in 2003 the deceased had resolved to divorce the Claimant and returned to Gambia with his daughter by the Claimant, spending the majority of his time in Gambia. The Claimant obtained indefinite leave to remain in the UK and from 2003 lived largely in the UK.

The question for the court was whether, in all of the circumstances, the deceased had acquired a domicile of choice, namely Gambia, or whether he retained his domicile in the UK. The Claimant could only be permitted to proceed with her claim in the case of the latter.

His Honour Judge Purle emphasised two key principles when considering a person’s domicile: 

  • The person’s intention to acquire a domicile of choice and the evidence of a person’s residence; or of
  • His intention to reside permanently or indefinitely in a country. 

His Honour Judge Purle found that the deceased had made numerous declarations of his intentions to see out his days in Gambia including expressing a wish to his daughter that he wanted to be buried in Gambia. Whilst the deceased never acquired Gambian citizenship he applied annually for a resident’s permit, such renewal becoming something of a formality.

Aside from short breaks and holidays, the deceased spent his time in Gambia, with his daughter, from 2004 onwards, intending his daughter to be educated there and raised in Gambian culture. The deceased had business interests in Gambia, devoting his energies and much of his money to a hotel development project. 

However, the deceased continued to be the director of a limited company in the UK which rented a business premises. He also owned two English investment properties. The deceased continued to visit the UK and frequently stayed in a flat within his business premises. The deceased has also made an English Will in 2006 appointing English executors and largely English beneficiaries. However the court did not find these factors determinative of retained domicile.

The court held that it had been established that the deceased loved Gambia and wanted to live there, and nowhere else. This conclusion was supported not only by the declarations of the deceased but also evidenced by his conduct and residence.

The claim was therefore dismissed.

Daniel Winter

About the author

Daniel Winter

Daniel joined Nockolds in 2009 and is a Partner in our Commercial and Property Litigation Team. Daniel has been practising as a qualified Solicitor for ...

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