The Two Types of Domicile

March 25, 2015 Hull & Hull LLP Estate Planning, Litigation Tags: , , , 0 Comments

Through the use of modern technology and communication, the world is shrinking every day. We are seeing an influx of foreign residents living and owning property situated in Canada and the reverse is also common.

For the purposes of estate planning and administration, the domicile of Canadians living or owning assets in other jurisdictions is an important consideration. A deceased’s domicile is important because it is the first step towards deciding how to administer the estate.

Generally, one’s domicile of origin is where they are born, while domicile of choice is when someone takes up residence in a new place, intending to reside there permanently. Domicile of choice can be abandoned.

Re Foote Estate is a case out of Alberta, upheld on appeal, providing direction to courts dealing with domicile in uncertain cases. Although Mr. Foote (the deceased in that case) was born in Alberta and resided there for the first half of his life, he also purchased a home in British Columbia at one point and eventually built and resided at a residence on Norfolk Island, a remote location (and former penal colony) in the South Pacific.

The issue in the case was which jurisdiction’s law should govern the administration of Mr. Foote’s estate. The court was tasked with determining whether Mr. Foote had embraced a new domicile by choice (Norfolk Island), and, in turn, gave up his domicile of origin (Alberta), as individuals are only permitted one domicile at a time. If so, the court had to then assess whether Mr. Foote abandoned his Norfolk Island domicile when he returned to Alberta for medical treatment, where he eventually passed away.

The test for changing one’s domicile requires that a person acquires residence in a jurisdiction with the intention of settling there permanently and indefinitely. The Alberta Court of Appeal upheld the Trial Judge’s finding that Mr. Foote was domiciled in Norfolk Island at the time of his death.

For further reading on the topics of domicile and international estate planning, read our blogs herehere and here and listen to our podcast on the subject here.

Thank you for reading,

Suzana Popovic-Montag

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