Domicile

Domicile

Sato v Sato 2017 BCSC 1394 discusses in detail the legal issue of domicile. The issue was whether the deceased was domiciled in British Columbia at the time of his marriage to the plaintiff. If so his  2011 Will was revoked by operation of law. If not, the parties agree that the deceased’s domicile was Luxembourg and under  the laws of Luxembourg, the 2011 Will would not be revoked by the plaintiff’s marriage to the deceased. (The facts took place before WESA was introduced on March 31,2014 when marriage still revoked a will)

The plaintiff, Makiko Sato, is the widow of the deceased, Hiroyuki Rex Sato, commonly called Rex.   The defendant, Helen  Sato, is the sister of the deceased and is the executrix of the deceased’s will dated May 19, 2011 (the 2011 Will).

The plaintiff and the deceased were married in April 2013.    The deceased ceased to be a resident of Canada in 1999. From 2009 until his death on March 7, 2015, he was a resident of Luxembourg.

The Court found that the deceased was domiciled in British Columbia when he married the plaintiff in April 2013. As a result, his 2011 Will was revoked. The deceased was found to have had the intention to make British Columbia his domicile.

One of the determining facts was that the deceased indicated to CCRA that he intended to retire in Canada. The defendant had the onus of proving his domicile was in Luxembourg and failed to do so.

Domicile

[8]            In Scott v. Vanston, 2016 SKCA 75, the Saskatchewan Court of Appeal reviewed the law of domicile, and of particular interest in the case at bar, the principles involving domicile of choice and abandonment. Justice Herauf, for the Court, stated:

Domicile of choice

[52]      [Wadsworth v. McCurdy (1886), 12 S.C.R.466] is the earliest decision of the Supreme Court on the law of domicile in Canada. In Wadsworth, all five judges authored opinions but Ritchie C.J. largely sets out the opinion of the three-two majority. Chief Justice Ritchie begins by stating that the law of domicile is well-settled in Canada, having previously been established by the courts of England. He then cites numerous authorities for the principles that form the law of domicile.

[53]      In regard to acquiring a domicile of choice, Ritchie C.J. sets out the law at 475-76:

What will constitute a change of domicile has been frequently enunciated in the highest courts. Thus in Lord v. Colvin the Vice Chancellor:

I would venture to suggest that the definition of an acquired domicile might stand thus: That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.

I am disposed to think that the definition thus modified would be found to be in accordance with most, if not all, of the leading decisions on the subject of acquired domicile.

But whatever may be the most correct and proper terms in which to frame a definition of domicile, this at least is clear and beyond controversy, that to constitute an acquired domicile two things are requisite, act and intention, factum et animus. To use the language of an eminent jurist, to whose admirable writings I have before referred, two things must concur to constitute domicile (of course he is speaking of acquired domicile); first, residence; and secondly, the intention of making it the home of the party There must be the fact and the intent; for, as Pothier has truly observed, a person cannot establish a domicile in a place, except it be animo et facto.

Sir J. Romilly, the Master of the Rolls:

It is quite settled that two things are necessary to constitute a change of domicile; first, the factum of the change of residence; and next, the animus manendi. In other words, in order to effect a change of domicile, the person must have settled in a residence out of his former domicile, whether it be the domicile of origin or an acquired domicile; and he must also have the intention of making that residence his permanent home.

[54]      Therefore, based on the preceding analysis, a person establishes a domicile of choice by voluntarily choosing to reside in a location, not temporarily or for some special purpose, with the intention of making it his permanent home unless and until something unexpected or uncertain induces him to adopt some other permanent home.

[55]      This same principle has been cited and followed in numerous subsequent cases. In Trottier, Duff C.J. states at 207:

The principles which ought, I think, to be kept steadily in view and rigorously applied in this case are, first, that a domicile of origin cannot be lost until a new domicile has been acquired; that the process of the acquisition of a new domicile involves two factors, the acquisition of residence in fact in a new place and the intention of permanently settling there: of remaining there, that is to say, as Lord Cairns says, for the rest of his natural life, in the sense of making that place his principal residence indefinitely.

[56]      In Osvath, which is a relatively brief decision, the central principle cited is that quoted by Ritchie C.J. in Wadsworth from Lord v Colvin (1859), 62 ER 141. Further, this Court previously applied the same principle in Gunn v Gunn (1956), 2 DLR (2d) 351 at 353, and quoted Duff C.J.’s formulation of it from Trottier at 207.

[57] Most recently, the Alberta Court of Appeal summarized the law in relation to domicile of choice in Foote Estate, Re, 2011 ABCA 1 at paras 20-22, [2011] 6 WWR 453 [Foote Estate CA]:

[20]      One’s domicile of origin can be displaced by a domicile of choice, a place where a person has chosen to live. The classic description of domicile of choice is found in Udny v. Udny (1869),1866-69 L.R. 1 Sc. 441 (U.K. H.L.):

Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. … There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.

[21]      Of particular relevance to this appeal is the requirement that the choice to change domicile must be voluntary, not dictated by business, debts or health. Some authorities speak of one’s domicile of choice as a place where one intends to end one’s days. That language is unhelpful where, as here, a person with a fatal and fast-moving illness makes a trip shortly before his death for treatment. Determining an intention to change domiciles in such a situation is not a simple matter of saying the deceased intended to live out his days in the new location. It could not, in most cases, be described as a voluntary move.

[22]      The acquisition of a domicile of choice involves 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: Trottier v. Rajotte, [1940] S.C.R. 203 (S.C.C.), at 206, [1940] 1 D.L.R. 433 (S.C.C.) [emphasis added].

[58]      The onus of proving that a person has acquired a domicile of choice is on the party alleging the acquisition (see Wadsworth at 470-71).

[59]      Regarding permanency versus indefiniteness in relation to intention, it was noted in Foote Estate QB [Re Foote Estate, 2009 ABQB 654] that indefinite has been interpreted in a number of cases and that different case law has applied different standards but that ultimately it is a factual inquiry (para 46). The high standard that has been applied is that of living out one’s days in a jurisdiction (para 47). While the lower standard that has been applied is that of no fixed intention of leaving (para 48). I would settle any controversy relating to the proper standard to be applied in determining intention to acquire a domicile of choice by endorsing the test set out in para 22 of Foote Estate CA, namely, ¦ the intention of permanently settling there … in the sense of making that place [one’s] principal residence indefinitely.

Abandonment

[60] Just as a person can acquire a domicile of choice, he or she may also abandon a domicile of choice. The principle of abandonment is not fully addressed in any of the three Supreme Court decisions on domicile except in reference to the abandonment of a domicile of origin in favour of a domicile of choice. The principle is, however, considered in Foote Estate CA and Foote Estate QB. The Court in Foote Estate CA sets out the principle of abandonment:

[25]      The following rule is set out in Dicey, Morris and Collins on The Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006) at 151:

Rule 13 – (1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

[26]      The test for loss of domicile of choice is two-fold: it requires an intention to cease to reside in a place coupled with acts that end one’s residence. It is described in Dicey as follows:

A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. [Emphasis added]

[27]      Castel & Walker, in their Canadian Conflict of Laws at s. 4.8, 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005), describe the process of abandonment of a domicile of choice as the converse of its acquisition. They also note the dual nature of the test. To paraphrase, for Mr. Foote to have abandoned his domicile of choice on Norfolk Island, it would be necessary for him to cease to reside there and also to cease to have the intention to return to Norfolk Island as his permanent home. Absence without the intention of abandonment is of no effect, nor is intention without any actual change of residence: Castel & Walker at s. 4.8.

[61]      In Foote Estate QB, Graesser J. cites other authorities to support the above proposition:

[51]      It is certainly possible to abandon a domicile of choice or origin in favour of a new domicile of choice, but such change involves more than a change in intention and requires some act of abandonment. That requirement to take some tangible step to abandon was identified in Fedeluk v. Fedeluk as relating to the dual prerequisites to adopt a new domicile of choice:

[12]      It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention: See Jones v. Kline, [1938] 3 W.W.R. 65, at 75 (Alta.) and other cases cited at p. 409 of Power on Divorce, 2nd ed. The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory: See Zanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646. [Emphasis added.]

[53]      Howson J. in Jones v. Kline (Jones), at para. 16, stated the rule as:

… in order to lose the domicile of choice and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice, he must actually leave it with the intention of leaving it permanently. [Emphasis added.]

[62] As noted above, a person need not acquire a new domicile of choice for a prior domicile of choice to have been abandoned. Rather, a person may abandon a domicile of choice not having any other domicile but for their domicile of origin (see Foote Estate QB at para 77). Important, as well, is the point that a person need not completely cease to reside in a location to abandon it as his or her domicile (see Foote Estate CA at para 33).

[9]            In Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, the Supreme Court of Canada considered whether the appellant’s domicile of choice was Ontario. Justice Judson writing for the Court stated at 753:

The principle to be applied is that stated in Lord v. Colvin, which was adopted in Wadsworth v. McCord, and followed in Gunn v. Gunn:

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt [some] other permanent home.

Lex Fori

[10]        Domicile is determined in the jurisdiction in which the issue is raised the lex fori: Re Annesley, [1926] Ch 692 at 705.

[11]        In the case at bar, the parties agree that the matter of the deceased domicile should be determined by the Supreme Court of British Columbia.

Onus

[12]        The party who asserts a new domicile of choice has the onus of proving the change in domicile: The Lauderdale Peerage (1885), 10 A.C. 692 at 739.

[13]        The onus of proof is that of a balance of probabilities: F.H. v. McDougall, 2008 SCC 53. As the Court in F.H. stated at para. 46:.. evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.

Only One Domicile at any Particular Time

[14]        A person always has a domicile but never has more than one domicile at any particular time: Wadsworth v. McCurdy (1886), 12 S.C.R. 466 at 468; Udny v. Udny (1869), L.R. 1 Sc. & Div. 441 (H.L.) at 448.

Matrimonial Domicile

[15]        For the deceased’s 2011 Will to have been revoked by his marriage to the plaintiff in April 2013, he must have been domiciled in British Columbia as of that time: Allison v. Allison (1998), 56 B.C.L.R. (3d) 1 (S.C.).

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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