Disputing the Will of someone based abroad

13 July, 2016

A question I am regularly asked, can I bring a claim if the deceased was living outside of England and Wales?

The Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) allows a Will (or the intestacy rules) to be disputed on the basis that they fail to adequately provide for certain categories of people, known as eligibl17875670_se claimants.

However, a claim can only be brought under the 1975 Act if the deceased was domiciled in England and Wales at the time of their death. By this we mean that the deceased’s permanent home was in England and Wales.

In the recent case of Kebbeh v Farmer and others [2015] EWHC 3827 (Ch), the High Court applied the concept of domicile to a claim under the 1975 Act, reminding us that, “a finding as to domicile requires a careful consideration of the facts”.

Background

The case concerned a claim against the estate of the late Mr Mitchell, who died in Gambia in 2011. The deceased’s last Will was made in 2006 and made no provision for his second wife, Mrs Kebbeh (the “Claimant”). Instead, his estate was to be divided between his accountant and friend and his three daughters.

Mr Mitchell had an English domicile of origin and had moved to Gambia in 1994, following the breakdown of his first marriage. For some years, he retained property and business interests in England.

Arguing that Mr Mitchell had died domiciled in England and Wales, Mrs Kebbeh brought a claim against her late husband’s estate for financial provision.

Decision

Judge Purle QC disagreed with Mrs Kebbeh, concluding that Mr Mitchell had died domiciled in Gambia and that, therefore, Mrs Kebbeh was unable to bring a claim under the 1975 Act.

The Court placed great emphasis on the deceased’s intentions, particularly his plan to be buried in Gambia and the disparity between the deceased’s wish to remain in Gambia and the Claimant’s desire to return to England which had affected their marriage for many years.

Judge Purle QC commented that the deceased’s “conduct from 1994 onwards [was] consistent with a settled intention to remain living indefinitely in Gambia, and that intention became stronger over the years”.

Interestingly, the court placed less importance on the deceased never having acquired Gambian citizenship and the substantial periods of time he had spent in England over the years.

If you think you may be eligible to make a claim under the 1975 Act, it is important to act quickly as time limits apply. If you would like to discuss making a claim or issues relating to domicile, please contact Philip Youdan at philip.youdan@crippspg.co.uk.   We can also discuss the possible options for funding your claim and will, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.