Gluppit the prawling strangles, there (elettaria) wrote in lawuk,
Gluppit the prawling strangles, there
elettaria
lawuk

Domicile of choice

Sorry to throw a legal question at you, but it's one of those very simple issues that I can't find the answer to, and I can't afford to consult a solicitor apart from a friend of mine who hasn't been able to find the answer yet but says it's more complicated that it looks.

I'm currently making a will (one of those packs from WHSmith), though all I have to bequeath is my flat and my piano. I can't figure out what my domicile is. I was born and brought up in London (English parents, so domicile of origin is England), moved to Edinburgh to study when I was 18, and decided to settle there, eventually buying a flat. I am now 29, so I have lived here for just over 10 years and owned a property for, er, about four I think. I have been continually resident in Edinburgh for all of this time. I'm planning to stay in Edinburgh for the foreseeable future, quite possibly permanently; this could change if, for example, I were to marry (I am currently in a fairly serious relationship with a Scot who would prefer to stay in Scotland, though he may possibly need to move for career reasons), but I am certainly not returning to London (impractical for disability reasons). Has my domicile changed to Scotland, or is it still England? The articles I've been able to find, such as this one, are still leaving the issue unclear. Would there be any advantage or disadvantage to me in having an English or a Scottish domicile, or in changing my domicile vs. retaining my domicile of origin?
  • Post a new comment

    Error

    default userpic
  • 4 comments
I can see why the Inland Revenue article can appear confusing but the two main requirements are:
1. That you are inhabitant in your domicile of choice, and
2. That you have the intention of changing your domicle.
You meet both requirements. Your domicile is therefore Scotland. In any event, although Scotland is subject to its own laws, most of them are not that radically different to the laws in England.
I know, though they're different enough that my best-friend-the-lawyer cries, "I don't know, I do English law!" at half the things I bring up! (I've certainly encountered a number of differences in my dealings with the law so far, for instance in regard to property.) He said he reckons it'll be Scotland, but he has a feeling there was a case where someone was resident in one country for a long time (decades, I think) but the domicile hadn't actually changed. I think he also said that if I make a will under Scots law but turn out to have English domicile, the will would be invalidated. Sorry for being vague, it was a very quick chat with him earlier when he was on his way to a party - of lawyers, so he said he'd ask around there.

The will forms are separate for England and Scotland, otherwise I'd just go ahead. One difference I've noticed is that under English law, if I were to marry the first will would be automatically revoked, but it wouldn't be under Scots law.

By the way, any idea what the pattern is that they follow in cases of intestacy for which relative inherits? I have no spouse, children or siblings. I'd be quite happy for my mother to inherit (she bought the flat in the first place), though she says I may as well leave it to my cousin as she doesn't need it, but I've been 100% estranged from my father since I was 16 and I wouldn't want him to get a thing.

I've been doing further googling, and the "intention" thing seems terribly ill-defined. A lot of pages are citing a case in which someone lived in the UK for 40 years but had said that he'd like to return to Nova Scotia in the event of his wife's death, or persuade her to go to Nova Scotia with him. He was therefore not domiciled in the UK. One page described it as "the place you would want to die and be buried", which at the moment would be the cemetary plot belonging to the local Jewish community of which I am a fairly active member. Still, I don't think having paid my synagogue membership fees (discounted rate and on an annual basis) is proof of intention of permanent domicile. I don't want to make a mistake and accidentally make an invalid will.
The danger with going by case law is that it doesn't necessarily always create a precedent and one has to look at the facts of that particular case in conjunction with one's own situation. In the end, the statute will prevail.

Law of intestacy in England states initially it's spouse, children, parents, brothers/sisters. In your case it would be your parents. I reckon Scotland is pretty similar.

Of course, the way to make sure is simply make a will for both Scotland and England.

To be honest, it should not make a great deal of difference.

If your will sets out clearly what you want to go to whom, then that should be binding under any law. The only differences would be regarding the question of whether there is any legal minimum that has to go to spouse/children.

The question of intestacy is a different one, and would obviously be governed by the rules of your domicile, but that is not really relevant, as you are actually making a will.


So one will should suffice for all countries. If you want certainty regarding the way it is then implemented, you could always include a choice of law clause (I don't see why that shouldn't work for a will?) and explicitly stipulate that "For the purposes of execution and any issues arising out of this last will and testament English law shall apply, and any passage in this document shall be construed in accordance with English law" or something along those lines.