Analysis
Eldon Foote, the deceased (D) was born in Alberta and lived there for the first 43 years of his life. He married and had five children there. When he died in 2004, his estate was worth approximately $130m. He also controlled a charitable foundation worth approximately $80m and had other assets worth approximately $10m. The bulk of his assets were held through corporations in the British Virgin Islands, and he had some investments and investment properties in Norfolk Island and a cabin in Alberta. D had left Alberta in 1967 to start his business in Australia and, over the next three years, travelled extensively in Japan, Australia and Europe. He and his first wife divorced and, in 1971, he married his second wife, Val. D had previously visited Norfolk Island (an Australian protectorate with very advantageous tax laws), and he was interested in ac-quiring land there. He purchased a substantial property in Norfolk Island and built a residence: Foot Nort. In 1977 he and Val acquired permanent residency status in Norfolk Island. D and Val di-vorced in 1981 and he married for the third time in 1984. His new wife, Anne (W), an Australian citizen, was granted permanent residency status in Norfolk Island in 1996. In 1999, D and W pur-chased an unfinished condominium property in Victoria, British Columbia. Construction was com-pleted in 2001, and they spent the summers of 2001, 2002 and 2003 there. At approximately that time they made some plans to sell Foot Nort, although no material steps were taken to list or adver-tise the property for sale. In 2003 D executed three wills in Alberta. A Canadian will disposed of his Canadian assets, and his children from his first marriage were its beneficiaries. The British Virgin Islands will left bequests to D’s wife, children, various other family members, and two charities. The Norfolk Island will also made various bequests to D’s wife, children and other family members. In addition, it directed that his estate in Norfolk Island be sold and the proceeds divided among his wife, children, step-child and charity. D’s health began to fail. In April 2004 he left Norfolk Island for tests in Australia, where he was diagnosed with cancer. He immediately travelled to Edmonton to receive treatment at the Cross Cancer Clinic, where he died in May 2004.
W and five of D’s six children applied to the court for advice and directions as to various aspects of D’s Estate, and for a ruling as to his domicile at the date of his death. The trial judge concluded that D had a domicile of origin in Alberta, where he was born, but that he had acquired a domicile of choice in Norfolk Island by 1972. In addition, despite D’s expressed desire to return to Canada, and the acquisition of a second home in British Columbia, D had not abandoned his Norfolk Island domicile of choice at the time of his death. Any plans to leave Norfolk Island to take up residence in Victoria and live there indefinitely were preliminary and underdeveloped, and the intention to do so was equivocal. Abandonment of domicile of choice had not been established, nor had the acquisition of a new domicile of choice. D’s wife and children intended to make family relief claims. They challenged the finding of domicile arguing that the trial judge used the incorrect tests to assess abandonment and acquisition of domicile of choice.
Held: appeal dismissed [18, 36].
The acquisition of a domicile of choice involved two factors:
‘… the acquisition of residence in fact in a new place and the intention of permanently settling there… in the sense of making that place (one’s) principal residence indefinitely.’
The evidence strongly supported the trial judge’s conclusion that the deceased acquired a domicile of choice in Norfolk Island in about 1972 [24]. It was also particularly relevant in this case that the choice to change domicile must be voluntary, not dictated by business, debts or health.
The test for loss of domicile of choice was also two-fold: it required an intention to cease to reside in a place coupled with acts that ended one’s residence. The trial judge made no error in concluding that the deceased had decided to re-establish residency in Canada, but that his plans in that regard had not crystallized into an intention to abandon his domicile of choice in Norfolk Island by the time of his death as the evidence supported those conclusions [31].
APPEAL Appeal from the judgment by The Honourable Mr Justice RA Graesser. Dated 13 November 2009. Filed 1 February 2010 (2009 ABQB 654, Docket: ES03 119897) Memorandum of Judgment THE COURT I. Introduction [1] This appeal arises from a trial finding that the late Eldon Douglas Foote was domiciled on his death in Norfolk Island. …Continue reading "Re Foote Estate [2011] ABCA 1"