Are you ‘domiciled’ or just resident?: the somewhat archaic concept that can trip up many a probate or Inheritance (Provision for Family and Dependants) Act 1975 claim

In ordinary speech, people tend to say that they are ‘living in’ or perhaps ‘resident’ in a country. How often do people wonder about where they are ‘domiciled’?

A person’s domicile can have a significant impact on their estate and how it is managed. It can have implications as to what legal claims could be made and what tax is payable on the deceased’s estate. Many may think that they or their loved ones are ‘domiciled’ in a country, only to find out at trial that they were not. This can be a costly mistake, both financially and emotionally. 

What is domicile?

Domicile is a separate concept to residency, ethnicity, nationality and citizenship. It relates to what personal law a person is subject to and the type of law that governs their property. 

Types of domicile 

A person can only have one domicile at a time. There are there types of domicile, being:

1. Domicile of origin; 
2. Domicile of dependency; and 
3. Domicile of choice. 

Domicile of origin is acquired at birth. If the child’s parents are married, the child acquires their father’s domicile at the time of the child’s birth. If they are unmarried, the child acquires their mother’s. Domicile of origin prevails unless there is a superseding domicile of choice. 

Domicile of dependency mainly relates to only to children under the age of 16 and unmarried mentally disordered persons, under the Domicile and Matrimonial Proceedings Act 1973.   

Domicile of choice is acquired when a person voluntarily fixes their sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time. Therefore, to acquire a domicile of choice, one must have: (1) residence in that country; and (2) an intention of permanent or indefinite residence in that country. It was held in Winans v Attorney-General [1904] AC 287 that the character of domicile of origin ‘is more enduring, its hold stronger, and less easily shaken off’ than domicile of choice.

The principles of domicile were helpfully spelt out in Barlow Clowes International Ltd v Henwood [2008] EWCA Civ 577 by Arden LJ, citing Dicey, Morris and Collins on the Conflict of Laws (14th ed 2006). Those principles are:

1. A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it; 
2. No person can be without a domicile; 
3. No person can at the same time for the same purpose have more than one domicile; 
4. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired; 
5. Every person receives at birth a domicile of origin; 
6. Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise; 
7. Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice; 
8. In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious; 
9. A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise; 
10. When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives; 

Practical problems

We live in a far more interconnected world. Many people live in a country that they were not born in. Many people move about, living in multiple countries at different times in their lives. It is not uncommon for people to live their entire (or most of their life) in one country, but intend to retire in a different country. 

For an application under the Inheritance (Provision for Family and Dependants) Act 1975, the deceased must be domiciled in England & Wales at the time of their death. No English (or Welsh) domicile? No claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Your nearest and dearest relative could have lived in England (or Wales) for decades, leave you nothing in the will (or not even write one) and you would not be able to make a claim for provision. You would only have more tenuous and fact-specific avenues available, such as a proprietary estoppel claim.  

Possible example

Let us imagine a man; we’ll call him Mr John Smith. Mr John Smith is born in New Zealand. Mr Smith’s father was born in England and moved to New Zealand when he was 17. Mr Smith’s father was married and only 30 years old when he had Mr Smith. That means that Mr Smith’s father has a domicile of origin of England and potentially a domicile of choice of New Zealand, if, at the time of Mr Smith’s birth, his father intended to live permanently or indefinitely in New Zealand. 

Mr Smith, at the age of 24, then moves to England. He gets a full-time job and buys a house, which he registers in his sole name. He gets into a relationship, and his girlfriend moves in with him. He never writes a will. At the age of 34, Mr Smith sadly dies. Since they were not married, his girlfriend gets nothing under intestacy rules. He never made a will, so she does not inherit anything. 

Mr Smith’s girlfriend’s only realistic claim is under s.1(1A) of the Inheritance (Provision for Family and Dependants) Act 1975. But what is Mr Smith’s domicile? Is it:

1. England, as his domicile of origin, because his father did not have a domicile of choice of New Zealand at the time Mr Smith was born and therefore retained his domicile of origin; 
2. New Zealand, as his domicile of origin, because it was his father’s domicile of choice at Mr Smith’s birth; or
3. England, as his domicile of choice, because he was resident in England and, at the date of his death, intended to live their permanently or indefinitely?

If the answer is either (i) or (iii), Mr Smith’s girlfriend could claim under the Inheritance (Provision for Family and Dependants) Act 1975. If the answer is (ii), she would likely get nothing, as her claim would fail regardless of how good the merits were. 

Discussion 

The issue of domicile is often dealt with by holding a preliminary issues hearing. This can add delay and cost to any potential claim. It can also be a factually dense and difficult claim, with many witnesses, as a court is trying to establish the intent of the deceased at the time of their death. 

In Agulian v Cyganik [2006] EWCA Civ 129, a Cypriot-born man had lived in England for a total of 43 years and had built up substantial business interests in the country. He was engaged to a woman living in London. Despite all of this, he was held not to have acquired domicile of choice and his domicile of origin (Cyprus) remained. The deceased retained a strong connection with Cyprus, shown in part by the fact that:

1. He returned to Cyprus multiple times, often staying for months at a time; 
2. He bought and sold multiple Cypriot properties over the years;
3. He enrolled his daughter at a fee-paying school in Cyprus; 
4. He remained active in the Greek Cypriot community in England. 

Conclusion 

What does this mean for you? Great care needs to be taken if people are moving between countries. It is important to speak to a solicitor and perhaps make your intentions known as to where you intend to live permanently or indefinitely. It is even more important if one has foreign-born parents. As always, it is important to have a will that you update when life changes. 

Perhaps it is time for parliament to take a look at the law of domicile and consider reform. Many pieces of legislation use the phrase ‘habitually resident’ to deal with taxation and other issues. Perhaps a similar test could be used for probate in future. Either way, we might need to rethink the concept in this ever changing and more connected world. 

10th Nov 2025

Tom Gilchrist

Call 2018 (2016 - New Zealand)