Inheritance claims: Domicile is key

16 / 07 / 2018

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) enables certain categories of people to bring a claim for financial provision from a deceased person’s estate, even if that goes against the terms of the deceased person’s Will. There are, however, prerequisites, one of which being: the person must have died domiciled in England and Wales.

The question of domicile is not always straightforward, as shown by the recent case of Proles v Kohli [2018]. Baldev Kohli was born in Calcutta in January 1958 and moved to London in 2003. Having spent twelve years in England, Mr Kohli returned to India where he died shortly afterwards in December 2015. When his five year old illegitimate daughter (represented by her mother) brought a claim for financial provision from Mr Kohli’s estate, the court held that Mr Kohli was domiciled in England and Wales at his death.

In brief terms, domicile is initially determined by your parents’ domicile at your birth (generally the father’s). It is, however, possible to override your “domicile of origin” with a “domicile of choice” if you have the intention of continuing to reside elsewhere permanently and indefinitely. Intention is key, and the move must be voluntary.

In Mr Kohli’s case, the fact that he had conducted business in England for fourteen years, and had emotional ties with England through his children, led the court to find that he had acquired a domicile of choice here. The fact that Mr Kohli retained his Indian passport, identity card and driving licence, and only had a limited visa to work in the UK, did not convince the court otherwise.

If you do not consider yourself domiciled in England and Wales but you have lived here for a period of time, it would be worthwhile checking your domicile position in case you have acquired a domicile of choice in England and Wales by operation of law. This may expose your estate to potential claims under the Inheritance Act. It may also have inheritance tax implications. Similarly, if you know that you are domiciled here and your Will excludes one or more family members or a cohabitee, you should be aware that they could make a claim for a share of your estate after your death. In both cases, there are steps you can take to help prevent such claims and we would be pleased to discuss these with you.