It is possible for individuals to make a claim against an estate for reasonable financial provision when they are not receiving any provision or they consider the provision they are receiving is not adequate. This type of claim is made under the Inheritance (Provision for Family & Dependants) Act 1975 (“the Inheritance Act”).
When making a claim under the Inheritance Act few clients are aware of a key initial hurdle that every case needs to get over before the case can get off the ground. That is the issue of domicile.
What is Domicile?
The Inheritance Act is clear that claims can only be made under it if your loved one died whist domiciled in England and Wales. In fact the Inheritance Act is clear that it specifically excludes Scotland and Northern Ireland as well as situations where the deceased may have died domiciled in any other jurisdiction. If that is the case you will need to seek advice from lawyers in the country of the deceased’s domicile to see what options you may have to pursue a claim against the estate in that country (and they might have a similar Act to the Inheritance Act, such as is the case in Northern Ireland).
So what is domicile? It is the legal name given to a person’s connection to a country from which they derive legal rights and responsibilities as a consequence of that connection. Everyone has a domicile and nobody can have more than one domicile at the same time.
Types of Domicile
There are three ways you can acquire a domicile in relation to a particular country:-
- Domicile of Origin: this is the domicile everyone starts with and relates to the country a person is born in and to which a person reverts if other domiciles are given up / removed;
- Domicile of Dependency: this is normally the same as (and changes with any appropriate changes of) the person to whom a person is dependant, e.g. a child will have the same domicile as their parent until they are 16 at which point they would normally retain that domicile of the parent as their domicile of choice but they could choose a different domicile if they wish as per the below;
- Domicile of Choice: everyone can choose to adopt a different country as their domicile of choice through a combination of their residence there and an intention to remain there permanently or indefinitely. This will often require evidence that the deceased gave up their domicile of origin / dependency and instead resided in an alternative country with a permanent / indefinite intention to remain there.
How will this affect my Inheritance Act Claim?
You may think an issue over the deceased’s domicile can cause delay to you being able to forward your claim, however, you must be careful here. There is a tight time limit to bring claims under the Inheritance Act and so in some instances it may not be possible for you to wait for the outcome of any domicile issue before seeking specialist legal advice.
As the deceased’s domicile in England and Wales is a prerequisite for a claim under the Inheritance Act then if such a dispute arises this will often be resolved as a preliminary issue in the case.
The burden is on the claimant under the Inheritance Act to prove the deceased died domiciled in England and Wales, however this may be as simple as proving their domicile of origin. The burden will then shift to the person seeking to prove the deceased in fact adopted a different domicile of choice elsewhere if they want to argue the Inheritance Act does not apply. Written declarations by the deceased as to domicile are helpful but not conclusive evidence and the court will want to see various types of evidence to prove the deceased’s domicile (such as property ownership and location of bank accounts / employment for example).
Domicile is a complicated legal concept which the courts often struggle to grapple with, let alone clients. However it is a key requirement of the Inheritance Act so if you think issues surrounding domicile may be relevant to the estate of your loved one we would always encourage clients to instruct a specialist solicitor to ensure that you receive accurate and effective advice on how best to deal with this issue.