Analysis
Malcolm Mitchell (the deceased) died on 26 September 2011 in Gambia. By his final will dated 5 May 2006 he divided his estate between his three daughters equally, subject to minor pecuniary bequests. The will left no provision for his second wife, Haddy Kebbeh (the claimant). The claimant brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). The defendants claimed that the deceased died domiciled in Gambia, and that the claimant therefore had no claim pursuant to s1(1) of the Act.
The deceased had moved to Gambia in 1994 when he built himself a home there. From that onwards he had spent the majority of his time there Gambia. His first marriage had been dissolved in 1994. He had met the claimant in 1999 in Gambia and they were married in 2000. They had a child Jennifer together in October 2001. For a short while the deceased had moved back to England with the claimant for the purpose of his daughter her birth and early childcare. He retained his main home in Gambia. He also had a property in England and that is where the claimant and the deceased lived through much of 2001.
In August 2001, the claimant obtained indefinite leave to remain in the United Kingdom as she wished to live there indefinitely. There were strains between the claimant and the deceased which came to a head in 2003. In the summer of 2003, the deceased had resolved to divorce the claimant. The pattern developed of the deceased remaining in Gambia, where he lived, save for relatively short breaks consistent with a holiday (sometimes an extended holiday). He lived in Gambia with his daughter Jennifer from around late 2003 onwards. The claimant lived in somewhat reduced circumstances in England where, largely, she had worked to maintain herself, staying with friends or acquaintances.
Held:
-
- 1) Given that a person can only have one domicile at any one time for the same purpose, he must have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or the place where he would wish to spend his last days. The focus, though not exclusively, was upon the deceased’s intentions in relation to Gambia and whether, which was the key issue, he intended to live there permanently or at any rate indefinitely.
- 2) The picture that emerged from, at the latest 2004 onwards, was of the deceased making his life in Gambia, as his permanent home, backed up, by numerous statements made to friends and family, emphasising his wish not simply to be there on some sort of extended holiday, but to live there indefinitely or permanently.
- 3) The fact that the deceased did not obtain Gambian citizenship was not decisive. Whilst he maintained business interests in England, the fact that someone’s ties were not wholly severed did not preclude the formation of an intention to live permanently or indefinitely elsewhere. The circumstances of his will (namely the fact that it was made in England with English form) were not conclusive or even of much importance.
- 4) The links that the deceased had down to his death with England were not sufficient to override the very strong evidence that his permanent home was in Gambia.
- 5) The deceased never did formulate his life plan in terms of domicile, but what he did was entirely consistent with what he said to many people on many occasions.
- 6) He took up permanent, or indefinite, residence in Gambia. This was not because he had a short-term job there, or even a long-term job, nor was it because he was on a short-term or even a long-term holiday, but because that is where he saw his future indefinitely. He loved the place and wanted to live there, and nowhere else.
7) The claim was dismissed.
PURLE J: [1] This is a claim for family provision, brought by the claimant, Mrs. Haddy Kebbeh. It is brought under the Inheritance (Provision for Family and Dependants Act) 1975 (‘the 1975 Act‘). She claims financial provision from the estate of Malcolm Geoffrey Mitchell (the deceased). He died on 26th of September 2011 in Gambia. …Continue reading "Kebbeh v Farmer [2015] EWHC 3827 (Ch)"