Die-hard Raptors fans, band-wagon followers, and even sport-neutral citizens alike could not deny the energy in the Toronto air this past Friday, June 14. This day followed the Raptors’ historic four-point defeat of the Golden State Warriors in game six of the 2019 NBA playoffs the night prior, as well as the raucous, joyful celebrations which rang through the city until the early hours of the morning. The Raptor’s win marks the first time in their 24-season history that the Raptors will be graced with the title of NBA Champion.
In my view, one of the most interesting parts of the Raptors’ championship is the sense of community, togetherness and connectedness to Toronto which the team’s journey has inspired. On Friday morning, the CBC broadcasted clips of fans who had tuned in to cheer the Raptors to victory during game six, both in Toronto, across Canada and internationally. While some of the interviewed members of the Raptors’ diverse group of fans and followers were born in Toronto, many had since moved to reside permanently in other cities in Canada and across the world. Despite this, these fans still felt a strong patriotism to Toronto inspired by the team’s fight to the top. The diversity in the team’s fan network is also reflected in the Raptors’ own varied makeup: the team itself is comprised of players from several different countries, including Canada, the United States, England, Spain and Cameroon.
The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile. In an Estates context, there are two types of domicile: one’s “domicile of origin” is where they are born, whereas one’s “domicile of choice” connotes a new place where a party takes residence, with the definitive intention of residing there permanently. One may also abandon their domicile of choice. In Canada, domicile is determined on a province-to-province basis.
One’s domicile will determine which jurisdiction’s laws will be applicable in particular situations, such as in a dependant’s support claim circumstance, or when one seeks a grant of probate to administrate an Estate, for example. As my colleague Stuart Clark wrote about previously, however, two Canadian cases – Tyrell v Tyrell 2017 ONSC 4063 and Re: Foote Estate 2011 ABCA 1 – seem to suggest conflicting rules surrounding how domicile impacts the administration of one’s Estate. While the Alberta Court of Appeal in Re: Foote Estate stated that the domicile of the Deceased “determines the applicable law for estate administration purposes” – suggesting that it is the testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate – the Ontario Court in Tyrell v. Tyrell stated that “for the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee.” In Tyrell, notwithstanding that the testator died domiciled in a foreign jurisdiction, the laws of Ontario governed the administration of the estate as the Estate Trustee was located in Ontario. Currently, there are no reported cases which cite Tyrell v. Tyrell has been cited to support this rationale. It will be interesting to see how the legal concept of domicile develops in this respect going forward.
In the meantime, we will see how sports, diversity, and the law intersect when the Raptors parade passes by the Hull & Hull offices this Monday.
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In Tyrell v. Tyrell, 2017 ONSC 4063, the Ontario Superior Court of Justice was faced with a situation in which the testator died domiciled in Nevis, having drafted a Last Will and Testament which was executed in Nevis, which itself dealt with estate assets the vast majority of which were located in Nevis. The Will named the testator’s sister, who normally resided in Ontario, as Estate Trustee. Letters probate were issued to the Estate Trustee from the Nevis court following the testator’s death.
When concerns arose surrounding the Estate Trustee’s conduct following the testator’s death, certain of the beneficiaries brought an Application before the Ontario court seeking, amongst other things, the removal and replacement of the Estate Trustee, as well as an accounting from the Estate Trustee regarding the administration of the estate to date. The beneficiaries who brought such an Application were themselves located across several jurisdictions; being located in Nevis, Ontario, and New York.
In response to being served with the Application, the Estate Trustee took the position that the Ontario court was not the proper jurisdiction to seek such relief as against the Estate Trustee, maintaining that Nevis, being the jurisdiction in which the testator died domiciled, was the proper jurisdiction in which to adjudicate such disputes. The beneficiaries disagreed, arguing that the jurisdiction in which the Estate Trustee was normally resident was the proper jurisdiction in which such disputes should be adjudicated.
In ultimately agreeing with the beneficiaries, and ordering the Estate Trustee to complete certain steps regarding the administration of the estate within 60 days, the Ontario court provides the following commentary regarding Ontario’s jurisdiction over the matter:
“For the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee. Therefore, the Will is most substantially connected to the province of Ontario and the applicable law on matters relating to the administration of the Will is the law of Ontario. Thus, the Courts of Ontario have jurisdiction over matters relating to the administration of the Will.” [emphasis added]
The court’s rationale in Tyrell v. Tyrell appears to be in contrast to the Alberta Court of Appeal’s previous decision in Re: Foote Estate, 2011 ABCA 1. Although Re: Foote Estate dealt with a determination of domicile for the purpose of deciding which jurisdiction’s laws would apply in the context of a dependant’s support case, the court provided general commentary regarding what jurisdiction’s laws governed the administration of an estate. Indeed, in the opening paragraph of the Court of Appeal’s decision in Re: Foote Estate, the following comment is made:
“This appeal arises from a trial finding that the late Eldon Douglas Foote was domiciled on his death in Norfolk Island. The domicile of the deceased determines the applicable law for estate administration purposes.” [emphasis added]
Re: Foote Estate appears to suggest that it is testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate, making no reference to the location of the Estate Trustee. Tyrell v. Tyrell appears to suggest the opposite, with the court concluding that, notwithstanding that the testator died domiciled in Nevis, the laws of Ontario governed the administration of the estate on account of the Estate Trustee being located in Ontario.
The contrasting decisions of Tyrell v. Tyrell and Re: Foote Estate likely leave more questions than answers. Whether the fact that Tyrell v. Tyrell is a decision of the Ontario court, while Re: Foote Estate is from Alberta (although from the Court of Appeal), could also potentially play a role. An interesting hypothetical would be what would happen if a testator died domiciled in Ontario with an Estate Trustee located in Alberta. In accordance with Tyrell v. Tyrell, notwithstanding that the testator died domiciled in Ontario, the laws of Alberta would apply to the administration of the estate on account of the location of the Estate Trustee. In accordance with Re: Foote Estate however, Alberta law dictates that it is the law of the jurisdiction in which the testator died domiciled which governs the administration of the estate, which could have Alberta send the matter back to Ontario. Confusion abounds.
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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.
Thank you for reading,