Morris v Davies & ors [2011] EWHC 1773 (Ch)

WTLR Issue: November 2011 #115









Owen Robert Treharne Davies (deceased), by his last will, dated 30 March 1996, appointed the claimant and his girlfriend as executors and, subject to a letter of wishes concerning the administration of his affairs, left his entire estate to an uncle, the fifth defendant. At that time, the deceased had fallen out with most members of his family over a dispute concerning the administration of his grandfather’s estate. Their religious views were divergent and he did not want them to be involved in his affairs or funeral after his death. He was then working for Land Rover in England and had purchased a property at 31 Back Lane, Lower Quinton, Nr. Stratford-upon-Avon. In 1998 the deceased met, and subsequently became engaged to, Natalie de Vleeschauwer (fiancée), a Belgian national. After Land Rover was taken over by BMW in 2001 the deceased moved from England to Belgium where he secured a job with Bird Goen. For this he needed to register in Belgium to obtain a social security number and work permit, and he also opened a bank account and obtained a residence card. In correspondence, he described himself as working there for an indefinite period from 28 September 2001. When he changed his job the next year, he obtained a flat in France so as to work for Renault – although he worked there during the week days, he returned at weekends to Belgium and obtained another residence card, this time registered at the home address of a member of his fiancée’s family. In 2004 the deceased found a new flat near his work place at Guyancourt, France where his fiancée eventually moved in with him – they continued to spend weekdays in Paris and weekends in Belgium. In 2007 the deceased’s fiancée purchased in her own name a property in Belgium with a view to its refurbishment subject to the grant of planning permission. The deceased did not himself contribute towards the purchase and it was treated as his fiancée’s property rather than as a joint property. At this time, the deceased described himself as ‘British but resident in Belgium commuting to France weekly’. He contemplated marrying his fiancée in England and, shortly before his death, described himself as a British expat in Belgium. Notwithstanding his last will, the deceased evidently believed, wrongly, that under English law his property would pass on his death to his fiancée. In the event, the deceased died unexpectedly on 26 November 2008. In the immediate aftermath, the fifth defendant and his fiancée did not inform the deceased’s next of kin of his death and funeral. This caused great distress and led to hostility between the parties. The claimant, by proceedings commenced on 24 February 2010, sought to admit the deceased’s last will to probate but, by a defence and counterclaim, the first to third defendants, who were family members, contended (inter alia) that the deceased had died domiciled in Belgium and, therefore, succession to his moveables was governed by, and his last will was void as a matter of, Belgian law. Master Bowles, by an order dated 9 September 2010, directed that the issue of the deceased’s domicile at the date of his death be tried as a preliminary issue.

Held (dismissing the counterclaim for a declaration):

There was no doubt that the deceased had a domicile of origin in England & Wales. France could be ruled out as a domicile of choice as the deceased was only resident there during the weekdays for the purposes of his job and did not develop any form of relationship with the country. While his Belgian connections were more substantial, the deceased nevertheless did not acquire a domicile of choice in Belgium. For this purpose, it was necessary to show not only physical residence, but also an intention to remain permanently or indefinitely in a country other than that of his domicile of origin. It was probably right to say that the deceased was resident in Belgium, but the evidence fell well short of showing that he had the necessary intention to remain permanently or indefinitely there. Having regard to the adhesive nature of the domicile of origin, essentially the deceased had remained throughout an Englishman abroad. Consequently, the deceased never lost his domicile of origin in England & Wales.

JUDGMENT MR CHARLES HOLLANDER QC (SITTING AS A DEPUTY JUDGE): [1] The present litigation relates to the administration of the estate of Owen Robert Treharne Davies (Owen), who died unexpectedly of a heart attack aged 45 in Paris on 26 November 2008. In these proceedings, commenced on 24 February 2010, the claimant seeks to admit …
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Counsel Details

Edward Rowntree (Hardwicke Building, New Square Lincoln’s Inn, London, WC2A 3SB, tel 020 7242 2523, e-mail instructed by Wright Hassall (Olympus Avenue, Leamington Spa, Warwickshire, CV34 6BF, tel 01926 886688, e-mail, for the claimant.

Mark Simeon Jones (3 Dr Johnson’s Buildings, Ground Floor, Temple , London, EC4Y 7BA, tel 020 7353 4854, e-mail, instructed by Osmond & Osmond (55/57 Temple Chambers, 3-7 Temple Avenue, London, EC4Y OHP, tel 020 7583 3434, e-mail for the first to third defendants.

Cases Referenced