I have been appointed as a joint executor of an estate, the background details are as follows
The individual born in the UK moved to the Channel Islands over 20 years age when he retired, purchased a house with his wife and effectively adopted the CI as his domicile of choice. He visited the UK for holidays only from that point on, his wife passed away ten years ago…
In his Will it states “I declare that I am domicile in the island of Alderney” (Alderney is part of the Bailiwick of Guernsey.
The individual was hospitalised first in Alderney, was then flow to Guernsey, after that to Southampton in the UK, from Southampton hospital he was transferred to a hospital in Oxford where he suffered a fatal heart attack and passed away, this was all in the space of 9 days from when was first hospitalised in Alderney.
The sole reason he was in the UK was to receive hospital treatment.
My question is does his domicile of choice revert to his domicile of origin as he passed away in the UK or does his domicile of choice, the Channel Islands, remain in place.
All the estate assets are based offshore, there are no UK situs assets
Any input would be much appreciated
Noone & Associates
The short answer is: No.
His UK domicile of origin does not revert owing merely to his dying in hospital in the United Kingdom.
For everyone’s information, Southampton is the hospital to which emergency cases are sent from the Channel Islands in cases where the Islands’ hospitals do not have the specialised facilities required for treatment. It is a matter of life or death, generally, not one of choice.
The rules as to a loss of a domicile of choice are quite clear, If he did not abandon it, and retained his home in Alderney, without having the intention to leave Alderney and actually leave it, HMRC will be hard put to argue that there is even a need for a grant of probate within the United Kingdom where there is no asset there. Given the absolute need for treatment, to decide or think otherwise would literally leave HMRC a field day for redomiciling Channel Island residents undergoing treatment within their taxing jurisdiction. Even in France, the place of death does not ground the French notion of domiciliation there under such circumstances so as to open the succession under French jurisdiction, despite supêrficially contradictory statements in the Code civil.
It follows that the last thing to do would be to file for a Grant of Probate in the United Kingdom for the sake of form, when there is no need, The estate should be handled and administered out of the Bailiwick of Guernsey.
Seems pretty clear to me that this would not affect his domicile of choice. It’s a different situation from that where an elderly person moves back to the UK to a nursing home close to the children - in this case I assume he could only receive proper treatment in the UK and his intent would have been to return to Alderney once healthy enough to be discharged. I’m sure he never formed the intent to abandon Alderney and in fact everything except his person (home, accounts, friends, memberships) was still in Alderney.
Osborne Clarke LLP
As general point, does anyone disagree that where a non-domiciliary dies whose only UK exposure is through owning an interest in an offshore company holding residential property, which is now relevant property for IHT purposes, then probate or administration only needs to be taken out in the personal jurisdiction of the deceased or the offshore jurisdiction in which the company is situated. No probate is required within the United Kingdom, and merely an IHT declaration needs to be filed, and IHT paid on the deemed transfer of value?
It would be strange indeed were the Probate Court to be required to exercise a jurisdiction which it does not have.
His UK domicile of origin almost certainly would not have resurrected in particular because prima facie there is no evidence that he ever abandoned his non-UK domicile of choice.
Check out: Re Shaffer, Morgan v Cliento ; Allen v RCC .
We have a case where the individual, who was born in Scotland, moved to England when she married and lived here for all her married life of more than 40 years. A few years after her husband died she lost capacity and was removed by one of her children to Scotland, where she lived for another 10 years. We have been advised that choice is not required to revive a domicile of origin, it is a matter of fact - if the person ceases to live in the domicile of choice for any reason the domicile of origin revives .
In your case I doubt that the few days in England would count as ceasing to live in Guernsey, thus causing the domicile of origin to revive, but I thought it worth saying that the usual requirements as to intention don’t arise in these particular circumstances.
I’m not aware of any general obligation to file for probate - other than (of course) a duty to beneficiaries where probate is necessary to obtain the assets.
I agree with your reading of the example you give.
Osborne Clarke LLP
The above quote is incorrect ie leaving a domicile of choice for any reason the domicile of origin revives.
A domicile of choice needs to be abandoned if it is to cease. This requires that residence in the country of domicile of choice ceases AND there is an intention to cease to reside their permanently. Simply leaving is insufficient. [See Udny v Udny (1869); In the Goods of Raffenel (1663); Zanelli v Zanelli ;
Where a domicile of choice has been abandoned a domicile of origin does not automatically resurrect if immediately a replacement domicile of choice is acquired.
Many thanks to all for contributing, all the assets are offshore so probate only in Guernsey is required except for some premium bonds which may or may not require UK probate, I have written off to them so will know shortly.
Noone & Associates
Care is needed not to fall into the trap of considering a domicile of choice to be a form of residence.
It is not, despite HMRC’s attempts to assert that.