Analysis
This was an oral renewed application for permission to appeal from an order and judgment of the master, who found that the deceased had died domiciled in England and Wales. The deceased’s domicile of origin was India and he died there. There was no appeal against the statement by the master of the legal principles involved in determining domicile.
The master held that the deceased moved to England in 2002 and carried on a number of businesses there. The tertiary education of his sons was in England. His wife remained in India in a matrimonial home. He did not apply for British citizenship although there was evidence that he intended to do so. On these facts it was held that he acquired a domicile of choice in England and Wales by 2010.
In 2014 the deceased was diagnosed with cancer and he was removed from treatment in October 2015. In November 2015 he flew to India, where he died on 8 December 2015. The master found that the deceased intended to return to England at some point. She found that the decision to remain in India after it became clear that he would be unable to return to England was not an abandonment of his English domicile because it was forced on him. Even if he had travelled to India to die, that was not a decision to spend a significant part of his life in India, it was a decision that the specific event of his death should be there.
Held
The application for permission to appeal was refused; none of the points raised on the application were sufficient to give the appeal a real prospect of success. Four main points had been raised.
- (i) Although the master acknowledged that whether or not the deceased ever had his sole or chief residence in the UK was a relevant factor to be found for a change of domicile, she did not make an explicit finding. Although the deceased had made various property purchases, however, the master made a finding that the deceased was by 2014/2015 seeking to buy a permanent home in England because he intended to remain there permanently.
- (ii) In IRC v Bullock [1976] 1 WLR 1178, at 1184H, it had been stated that the true test was whether the deceased intended to make his home in the new country until the end of his days. A point raised in the application was that there was no proper finding by the master as to where the deceased “wished to spend his last days”; the abandonment of a domicile of choice did not require the establishment of another particular domicile, simple abandonment was enough to restore the domicile of origin. The master found, however, that the deceased intended to return to England and his son had taken a flat in his name for his residence when he did so.
- (iii) The master had found that the deceased had been in England on a 10-year visa that had expired in 2014. Although there was no specific finding on the matter, it seemed that until then the deceased had not remained in the UK for more than one year at a time, returning to India from time to time for that purpose and that when he left the UK in 2015 he must have known that he would not be allowed back. The complaint was that the master did not give any or any proper effect to that. Although the judge accepted that the master made no findings on this, she did make a finding that the deceased intended to return to the UK for a medical appointment, which was inconsistent with a proposition that he knew he would not be allowed to re-enter.
- (iv) The master’s finding of 2010 as the date at which a domicile of choice had been established was criticised, as well as a failure by the master to take into account subsequent events, and in particular events in late 2015. Although these criticisms were technically right, they did not do any damage to the conclusions reached by the master.
The attacks on the master’s order and judgment were rejected. There was a large number of other criticisms that amounted to an attempt to re-run a factual case from a trial that took four days. The master had come to a conclusion. That should not be crawled over on appeal in an attempt to reconstruct it in the absence of arguable errors of principle, manifest errors on important facts, or disregarding significant parts of the evidence with a potential to affect the outcome.
JUDGMENT MANN J: [1] This is an oral renewed application for permission to appeal from the order and judgment of Master Clark of 17th April 2018 in which she found that the deceased, Baldev Kohli, died domiciled in England and Wales and not in India, from where he came and where he died. Mrs Teresa …Continue reading "Kohli v Proles [2019] WTLR 623"