Domicile of choice,

A client has been resident in Portugal for the last six years and the only connection with the U.K. is the receipt of a private pension and a State Pension.

There are no U.K. assets in no year has she visited the U.K. for more than 15 midnights and only two visits have occurred to attend to a theatre as a tourist. There is no U.K. will

Is there any obligation to report the death to anyone other than the pension providers?

How can her domicile of choice be demonstrated?

Does the client have a UK domicile of origin? (or more accurately a domicile of origin in Scotland, Northern Ireland or England/Wales)

She will have acquired a domicile of choice in Portugal by residing there and having the intention of living there permanently.

The first leg of the test seems to have been satisfied. Is there evidence that she intended to make Portugal her permanent home?

Thank you for replying. Yes the client was born in the U.K. as was her father

She made it very clear that she had no intention of living ever in the U.K. again ( very anti Brexit) only enjoyed theatre but not exclusively London

In practical terms the important question could be whether the estate is large enough that there would be inheritance tax on it, if the deceased were found to be UK domiciled. If so it might be necessary to assess the situation with some care. If not, it may be more a matter of “whatever works”.

Thanks.

Whether or not she had any intention of ever living in the UK is not really relevant. Did she have a settled intention of living permanently in Portugal? If so she will have acquired a domicile of choice there. Is there evidence to support that ‘settled intention’?

If that ‘settled intention’ can’t be established her ‘UK’ domicile of origin will prevail.

I assume the client is not illegitimate; such a child at birth takes the mother’s (not father’s) domicile status as a domicile of origin.

Acquiring a non-UK domicile of choice requires, per Lord Chelmsford in
Bell v Kennedy (1868), : “A new domicile is not acquired until there is not only a fixed intention of establishing permanent residence in a new country, but also this intention has been carried out by actual residence there”.

in this context “residence” does not have its SRT meaning but refers to physical presence in that country as an inhabitant of it (IRC v Duchess of Portland [1982]).

There are numerous cases on domicile and wrt an acquisition of a. non-UK domicile of choice factors the courts have examined include: membership of clubs; burial arrangements; wills; bank accounts; business interests; length of time in the country; statements made to relations and in autobiographies; where time spent; wife/children accompaniment; nationality; passport; information previously supplied to HMRC (eg on Forms P85/86 and DOM 1); etc.

A domicile of choice may arise on the day of arrival in the country in which the person intends to permanently settle.

Any determination as to proof of a change of domicile (which onus lies with the person asserting the change) is on a “balance of probabilities” basis.

Have any SA109’s been filed here in UK ?

Malcolm Finney

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In a case I had recently, in order to keep claiming his pension, it seems the ex-pat had had to fill in annual forms confirming that he intended to return to live in the UK (although that may be because he was a citizen of a different country). If your (late?) client also did that, it may be tricky squaring those declarations with the acquisition of a domicile of choice in Portugal.

Alexander Learmonth QC

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