This piece is based on an article written by Richard Dew, barrister at 10 Old Square.
The recent case of Proles v Kohli contains an interesting discussion and useful reminders of the factors relevant to acquiring a domicile of choice in England and Wales.
Mr Kohli died on 8 December 2015, leaving a Will made very shortly before his death which left the whole of his estate to his wife. Prior to his death he had a relationship with a Ms Proles who, in March 2013, gave birth to Amélie Proles. Amélie brought a claim for reasonable financial provision – under Section 1(1) of the 1975 Act, it is a requirement that the deceased died domiciled in England and Wales.
Mr Kohli was born in Calcutta in India in 1956. He married Mrs Kohli in 1980 and they, with their sons, moved to Delhi in the 1990s. In the early 2000s, he sold his business and began to travel. By 2003, he owned a home in London and was registered with a GP surgery. From that time onwards, Mr Kohli bought and sold numerous properties in England using money that he had made in India and the proceeds of a substantial gift from his father. The amount of time that he spent in England steadily increased over time, and the amount of time he spent in India steadily decreased. In 2009, he began a relationship with his secretary which either arose out of or led to problems in his marriage. While Mrs Kohli spent time in England, the amount of time was much less than Mr Kohli and they seem to have become separated. In 2012, the deceased met Mrs Proles and they began a relationship. After the birth of Amélie, the deceased was said to have been “absolutely besotted” with her.
In October 2014, Mr Kohli was diagnosed with mouth cancer. This led to discussions about the provision to be made by Will by Mr Kohli. Mr Kohli’s advisers seemed to believe that he was not UK domiciled. When he instructed different solicitors, Mr. Kohli described himself as “domiciled and resident for tax purposes in the United Kingdom”. In November 2015, by which time his cancer prognosis was looking increasingly bleak, Mr Kohli flew to India. He subsequently died there on 8 December 2015.
The Court held that Mr Kohli had acquired a domicile of choice in England. A number of factors were taken into account, all of which pointed to that conclusion:
- the deceased’s business activity and property investments had all, from 2003 onwards, shifted towards England and away from India so that by his death he had no assets in India;
- the deceased acquired strong social and economic connections to England and lost many of his ties to India. His relationship with his wife had become increasingly estranged whereas, in contrast, he had two romantic relationships in England and wished to remain in England to continue to see Amélie;
- the deceased had several professional connections in England, e.g. with doctors, solicitors and accountants, and none in India;
- although he held an Indian passport and other documents there was evidence that he intended to acquire British nationality and
- the deceased himself, certainly when being candid and open, professed himself to be domiciled in England
A question arose as to whether the Deceased had abandoned his domicile of choice by returning to India. The Court found that by returning to India, Mr Kohli seemed to have intended to recover there. It also seemed that he intended to return to England and had arranged for medical treatment on his return. While in India, he became steadily more unwell to the point where he realised he would die there. This latter fact might point to an abandonment of a domicile of choice because it amounted to a decision as to where to die. Of that, the judge said:
“Such decisions would not be an abandonment of his English domicile of choice, for two reasons. The first is that such a decision would be one forced upon him by his illness and impending death. The second is that it would not be a decision as to where he was to live indefinitely, because, for all practical purposes, there was, sadly, no life remaining to be lived by him.”
The judge also said that, even if the deceased had travelled to India intending to die there this would not be an abandonment of a domicile of choice:
“Where, for practical purposes, a person has no life left to live, then a decision to go to his or her country of origin to die, is not a decision to spend any significant part of one's life (“the end of one's days”) in that country—it is a decision that the specific event of his or her death should be in that country.”
The deceased was therefore found to be domiciled in England such that the claim under the 1975 Act could proceed.