A Piece of Estate Real Estate for Sale

April 3, 2013 Hull & Hull LLP Estate & Trust Tags: 0 Comments


While browsing the web for news, I encountered a story that caught my eye.  Stuart Clark and I recently co-authored a paper for a UK journal on the subject of an Alberta case called Re Foote Estate that dealt with the issue of domicile in the context of an international estate.  At the heart of the litigation was Foot Nort, a residence on a remote location in the Pacific called Norfolk Island, part of the territory of Australia.  For the low price of only $3,000,000, the late Mr. Foote’s home can be yours. 

A major issue in Re Foote Estate was the question of which jurisdiction’s law applies.  Was the estate to be governed by the law of Alberta, where Mr. Foote was born and lived for the first half of his life?  Was the law of British Columbia to apply, where Mr. Foote had purchased a second home late in his life?  Or should the laws of Norfolk Island, where he built and lived in Foot Nort, govern Mr. Foote’s estate?  The answer would ultimately depend on his domicile.

In deciding, the Court put the concept of domicile under the microscope.  A person may have more than one place of residence, but may only have one domicile at a time.  A person’s domicile of origin, generally his or her birthplace, will continue to be his or her domicile unless he or she embraces a new domicile by choice. 

In order to change one’s domicile, a person must acquire residence in a new place with the intention of settling there permanently and indefinitely.  In Re Foote Estate, the Court held that Mr. Foote had become domiciled on Norfolk Island when he built and moved to Foot Nort, as he had done so with the intention of making it his permanent home. 

Late in life, Mr. Foote had purchased a condominium in Victoria, BC.  Also, he fell ill and had returned to Canada for medical treatment.  It was during one such visit that he passed away in his native Alberta.  This raised the question of whether or not he had again changed his domicile.  The test applied by the Court for abandonment of his domicile was, essentially, the mirror image of the test for acquiring a domicile.  Both residence in a place, and the intention to settle there permanently must be given up.  

Ultimately, the Alberta Court of Appeal agreed with the trial judge in concluding that Mr. Foote was domiciled in Norfolk at the time of his death.  Although it was found that Mr. Foote was likely to return to Canada at some point, and although he had taken some preliminary steps towards preparing to leave Norfolk, this was insufficient to establish that he had abandoned his domicile there. 

For further reading on the topic of domicile and international estates, take a look at Moira Visoiu‘s series of blogs on the subject, here, here, here, and here.   

If you are looking for a remote island getaway, Foot Nort is for sale.  But think carefully before forming the intention to live out your days there.

Thanks for reading!

Suzana Popovic-Montag

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