In simple terms, a person’s domicile is their true, fixed, and permanent home. Every individual must have a domicile at all times. While a person may reside in multiple jurisdictions, they can have only one domicile at any given moment.
Determining domicile is a step that is often skipped by estate administrators when the answer seems obvious. However, in an increasingly mobile world, a domicile analysis has become more complex. Many individuals now live, work, or own property in more than one province or country. As a result, determining a deceased individual’s domicile at death becomes key as, for example, domicile can determine which law governs the validity of a will and/or which succession regime applies on an intestacy.
Though the Succession Law Reform Act relies on the concept of domicile to determine which jurisdictions laws apply in sections 38 and 39, domicile is not explicitly defined. Instead, courts rely on common law guidance.
Types of Domiciles in Estates
Two principal forms of domicile commonly arise in estates disputes. The first is a domicile of origin, which is assigned at birth. The second is a domicile of choice, which an individual may acquire later in life.
Establishing Domicile of Choice
Courts apply a strong presumption in favour of an individual’s domicile of origin (see, for example, McCallum v. Ryan Estate, 2002 CarswellOnt 1211 (ON SC) at para 13 [“McCallum”]; Trottier v. Rajotte,[1940] SCR 203 (SCC) at para 10). As a result, clear and convincing evidence is required to establish that a domicile of choice has replaced one’s domicile of origin.
To establish a domicile of choice, two elements must be present: (1) physical residence in the new jurisdiction; and (2) a settled and fixed intention to make that place one’s home indefinitely (see Taylor v. Taylor, 1929 CanLII 65 (SCC) at para 7; McCallum at para 23).
While the first factor is easily established, the threshold for displacing a domicile of origin with a domicile of choice is often much more difficult to establish. Ultimately, no single element is decisive – the focus of the determination is on whether the evidence shows a genuine intention to settle permanently.
Courts look for persuasive evidence that an individual not only moved but did so with the intention of making the new jurisdiction their permanent home, and in a manner that goes beyond a temporary, conditional, or exploratory plan of relocation. Relevant considerations may include statements or declarations made by the deceased, the length of time spent in the new jurisdiction, whether property in the former jurisdiction was retained or disposed of, whether a residence was purchased or leased in the new location, the individual’s immigration or residency status, and the circumstances that prompted the move (see, for example, Re Pregent Estate, 2025 ONSC 7208 at paras 7-8).
A move driven primarily by external necessity (such as employment or family obligation) may undermine a finding that the individual intended to remain in the new jurisdiction permanently, as a domicile of choice must be freely chosen and not dictated by circumstance. At the same time, the continued maintenance of ties to a domicile of origin does not, on its own, prevent a change in domicile where there is compelling evidence of a permanent intention to settle elsewhere. For example, simply owning a secondary property in your home jurisdiction (like a cottage) is not necessarily sufficient to hold on to a domicile of origin (see Wadsworth v. McCord, 1886 CanLII 65 (SCC), 12 SCR 466 (SCC) at para 2; McCallum at para 4).
Abandonment of Domicile
Even if a person establishes a new domicile of choice, that domicile can later be abandoned. Abandonment of a domicile of choice requires more than a mere change of intention. The person must actually leave the jurisdiction of their domicile of choice – simply thinking about leaving is insufficient (see McCallum at para 24). When this happens, the person’s domicile of origin revives unless and until a new, second domicile of choice is established.
Takeaways
For estate planners and administrators, understanding a testator’s domicile can be important when advising on international wills or wills dealing with limited categories of assets. For estate trustees and litigators, domicile can be a critical issue in ensuring that all aspects of an estate are properly addressed – both within and outside Ontario.
By Jordan Sarah Head and Kagan Burhan Acar (Student at Law)