Agulian & Anor v Cyganik

This is an appeal by the personal representatives of the late Mr Andreas Nathanael (Andreas) from an order of Mr Nicholas Davidson QC (sitting as a deputy judge of the High Court) dated 2 May 2005. On the trial of a preliminary issue, which lasted for 6 days, he held that Andreas was domiciled in England at the date of his death. It followed that there was jurisdiction to entertain proceedings brought by Miss Renata Cyganik (Renata) against Andreas’s estate for further financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).

Permission to appeal was granted by Arden LJ on 8 August 2005. Unfortunately the ADR recommendation made when permission was granted has not borne fruit.

The question in this court under CPR Part 52.11(3)(a) is whether the deputy judge was wrong in holding that Andreas, who was born in Cyprus on 6 October 1939, lost his Cypriot domicile of origin and acquired a domicile of choice in England, where he had lived and worked for a total of about 43 years between the age of 19 and his death on 17 February 2003 at the age of 63.

On 2 October 2003 probate of the will made by him on 11 November 1995 was granted to the executors named in the will, one of whom has since died. The will contained pecuniary legacies totalling £100,000, including a legacy of £50,000 to Renata. According to the grant of probate his net estate in the United Kingdom was sworn at £6,527,362 and he was domiciled in England and Wales. The Inland Revenue have now accepted, so the court was told, that Andreas was not, at the date of his death, domiciled in England for income and capital gains tax purposes. Neither the contrary ruling of the deputy judge nor the views of the revenue authorities bind this court.

In Re Fuld [1968] P 675 Scarman J explained that the legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice. He noted two particularly important features of domicile (page 682D-E) which are relevant to this case:

“First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.” [As pointed out by Buckley LJ in IRC v. Bullock [1976] 1 WLR 1178 at 1184H Scarman J’s formulation “for an unlimited time” requires some further definition]

After reviewing the more important authorities and noting the need in each particular case for “a detailed analysis and assessment of facts” in relation to the subjective state of mind of the individual in question, Scarman J stated the law in terms which this court should expressly approve (page 684F-685D)

“(1)

The domicile of origin adheres-unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres….”

Scarman J discussed another point relevant to this case-the standard of proof. He cited authorities stating that the “necessary intention must be clearly and unequivocally proved” and that the domicile of origin is more enduring than the domicile of choice and said (page 685D):

“…It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change… What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.

The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choiceis a serious matter not to be lightlyinferred from slight indications or casual words.”

A further point made by Mr Noble (who appeared for Renata) relates to the role of an appellate court. He contended that this appeal is essentially against a finding or findings of fact by the court below and that this court is not entitled to substitute its own assessment of the evidence for that of the deputy judge, who heard and saw the witnesses, preferred the evidence of his client and made a finding corroborated by independent evidence. Mr Noble cited several cases (G v. G (Minors) [1985] 1 WLR 2416 and AEI Rediffusion Music Ltd v. Phonographic Performance Ltd [1990] 1 WLR 1507 at 1523) on appellate review of matters falling within the discretion of the trial judge. He submitted that it could not be said that the deputy judge’s finding of an English domicile was plainly wrong or that there was any misdirection as to the relevant law on domicile or the burden of proof. There was sufficient evidence to support the lower court’s finding that Andreas had acquired an English domicile of choice between 1995 and 1999 and that England was his domicile at the date of his death in 2003.

Mr Bragiel, appearing for the personal representatives, disagreed with Mr Noble’s approach. He accepted all the findings by the deputy judge about the events in Andreas’s life in Cyprus and in England, save one-the finding that Andreas intended to marry Renata and that he would have married her, had he not died unexpectedly in 2003. He contended that that finding was based on a misunderstanding of the issue, was against the weight of the evidence and was incorrect. I shall return to the marriage question later.

The appellants’ main point on the appeal is not, however, a contest on findings of primary fact by the lower court, but on the inference that Andreas’s intention after about 1995 was to live in England permanently or indefinitely. The deputy judge expressly found that Andreas did not have that intention before 1995, even though by 1995 he had resided in London for 34 years and had established a substantial hotel business here. The pre-1995 findings are not contested by Mr Noble on the appeal.

The essence of Mr Bragiel’s case for the appellants is that nothing changed in Andreas’s life between 1995 and the date of his death, from which the judge could properly infer that Andreas had formed an intention to live permanently or indefinitely in England. The deputy judge had, he argued, failed to apply correctly his self direction as to the law of domicile, the burden of proof and the standard of proof. The evidence, considered as a whole, did not establish that Andreas had ever abandoned his Cypriot domicile of origin in favour of an English domicile of choice.

Further, this was not an appeal against the exercise of a discretion by the lower court nor was it a case in which the lower court was applying a fairly flexible and imprecise standard involving an evaluation of all the facts: see, for example, Re Grayan Building Services Ltd v. [1995] Ch 241 at 254. In those cases the appellate court is more reluctant to interfere with the trial judge’s decision than in the case of a finding of primary fact or an inference from primary facts. This is an appeal contesting the correctness of an inference as to Andreas’s relevant intentions between 1995 and 1999. The function of the appellate court is to decide whether the inference is wrong, making proper allowances for any advantages that the trial judge would have had and an appellate court would not have and not interfering with inferences which the judge could reasonably have made: see Todd v. Adams & Chope [2002] 2 Lloyd’s Rep 293.

It should also be borne in mind that, in a case of proof of the subjective intentions of a person who has died, little weight is attached to direct or indirect evidence of statements or declarations of intention by the person concerned. Subjective intentions have to be ascertained by the court as a fact by a process of inference from all the available evidence about the life of the person, whose domicile is disputed.

The appellants contended that the inference that Andreas’s intentions changed after 1995 was wrongly made without due regard to the burden of proof and to the high standard of proof to be satisfied by Renata. There was no need, however, for a new trial to re-hear the case. This court was as well placed as the court below to make its own inferences as to Andreas’s intentions.

In 1939 Andreas was born into the Greek community in the village of Assia. It is situated in the area of Northern Cyprus invaded by Turkey in 1974 and in Turkish occupation since then. Andreas’s parents and grandparents were also born in Cyprus.

In 1957 Andreas’s family arranged a marriage with a girl from Limassol. The engagement was broken off in circumstances that led the girl‘s family to believe that a matter of honour was involved. There was bad feeling against Andreas, who had reason to fear for his personal safety. In 1958 he fled to England, where he remained until he went back to Cyprus in 1972.

Andreas did not turn his back on Cyprus during the 14 years he lived in London after 1958. He wrote to his family in Cyprus regularly and sent them money and presents. In 1967 he returned to Cyprus for 2 or 3 months. Later the same year he travelled overland to deliver a car there. In 1969/70 he bought 3 pieces of land in Cyprus. He bought 45 acres in Bogazi intending to build a hotel by the sea. Explosives were used to clear the beach and bay. But no hotel was built. Andreas had cash problems and, after 1974, the property was in the Turkish occupied area. He bought a plot of land in Nicosia large enough to build a house on. He later sold the land to pay his debts. He also bought a 34 acre olive grove in Kyrenia.

In 1971 Andreas took his young daughter Helena to Cyprus for his parents to look after. Helena’s mother, Jennifer Baker, had been living with Andreas in London and she asked him to look after Helena.

In 1972 Andreas returned to his home village in Cyprus, intending to live there permanently with his parents and Helena.

In 1974 Turkey invaded and occupied Northern Cyprus. The United Kingdom has never recognised the sovereignty claimed by Turkey. It only recognises the Republic of Cyprus. Assia was bombed. Many of its inhabitants, including Andreas’s brother and other members of his family, were executed by the invading forces. Andreas escaped by car with Helena, his parents and his sister-in-law Sonia. He left them at a friend’s flat in Limassol and then returned to London, where Helena and Sonia joined him in December 1974.

In March 1975 he sent Helena back to Cyprus to be looked after by his parents first in Limassol and later in Larnaca. Andreas sent money back to Cyprus for them. He wanted Helena to learn the language for when the family returned there. In 1975 he enrolled Helena at a private school in Cyprus and paid the fees. He returned regularly to Cyprus to see her and his parents. In 1980 his mother died and Helena came to live with him in England.

In 1984 Andreas bought 2 flats in Larnaca. He wanted to buy a hotel there. Between 1984 and 1992 he returned frequently to Cyprus. In 1987 Andreas went to Cyprus with Izabella Johnson, with whom he was then living in England, to look for land to build a hotel and live there. He discovered that prices were high and he calculated that he would need to borrow £1m. In 1991 Andreas returned to Cyprus and again stayed for 7 or 8 months.

From 1996 onwards Andreas paid increasing amounts into his bank account in Cyprus. By the date of his death his bank account in Cyprus stood at £1.3m. In 1998/9 he tried to persuade Helena to come back to London from Cyprus for 6 months so that he could return to Cyprus and start up something there.

In 2001/2 Andreas told his bank manager in Cyprus, Mr Photiou, of his intention to retire to Cyprus and asked for his help in finding a property. He contacted him about a specific property near his flats in Larnaca and asked him to be involved in the negotiations, but no agreement was reached on the price.

Although he lived in London for about 43 years and built up a very substantial business here, Andreas continued to live the life of a Greek Cypriot, talking Greek, watching Cypriot television. He had kept very much in touch with Cyprus during his time in London (paragraph 40). Despite his British passport and his residence in London he would have regarded himself very much as Cypriot rather than British (paragraph 38). He kept a Cypriot identity card, which was, and was seen by him as being, significant for the purposes of exercising in Cyprus rights as a citizen of Cyprus. His circle of friends and acquaintances in London were part of the Greek Cypriot community and of the Polish community. He was, the deputy judge held in paragraph 22, “proud and loyal to his birthplace and the people associated with it,” had “a strong feeling that family, particularly blood ties were important and that, as head of the family, the decision- making would be vested in him. He had “a strong emotional attachment to the land of his birth, both to the island of Cyprus as a whole and in particular to the area of his birth.” (paragraph 37). He retained “a very strong sense of Greek Cypriot identity.”(paragraph 38).

As for statements by Andreas about his subjective intentions as to where he would live permanently the deputy judge found that he told different people different things. He held that down to 1992 his statements about returning to Cyprus when he had the financial resources and an acceptable opportunity were not “speculative possibilities” (paragraph 40).

As the deputy judge found that Andreas abandoned his domicile of origin in Cyprus and acquired a domicile of choice in England between 1995 and 1999, it is necessary to examine in detail the facts found about Andreas’s English connection, focusing on his life events in that period, but viewed, of course, in the context of his life as a whole.

Andreas came to England on a British passport at the age of 18 in 1958 following his broken engagement. At first he lived with relatives in North London and worked as a mechanic.

In 1968 his brother joined him in London for 2 months. At that time he was living in a house that he had bought at 43 Batoum Gardens W6. He let rooms to make money to enable him to return to Cyprus. In 1969 he began a relationship with Jennifer Baker, who gave birth to a daughter, Helena, in September 1969. The relationship ended in about 1971.

In 1969/70 he bought another property at 77 Shepherds Bush Road, which he let out in bedsits. After his return to England from Cyprus following the Turkish invasion he began to convert the property from bedsits into an hotel. At about that time (1977) he started his relationship with Izabella Johnson. That lasted for about 15 years. She is Polish. They lived at 43 Batoum Gardens until 1980. They then moved to 77 Shepherds Bush Road. The conversion to a hotel (The Hellenic Hotel) was completed. Andreas lived in 2 rooms on the ground floor and ran the hotel. In November 1981 they had a daughter, Angela. Andreas continued to live in the 2 rooms until his death.

In 1984 Andreas bought the Gillett Hotel in Shepherds Bush. In 1987 he bought 2 more houses in Shepherds Bush, which he turned into the Angela Hotel.

In 1992 Andreas and Izabella parted. In 1993 Andreas met Renata when she began to work at the Hellenic Hotel as a cleaner. After a while they began a relationship and lived together as man and wife for the rest of his life.

Renata is Polish. She arrived in England in 1992 at the age of 20 on a student visa, but overstayed. Her presence in the United Kingdom was illegal. Renata’s domicile was not an issue at trial, but it was contended by the appellants that her illegal presence here did not support her case that she and Andreas got engaged in 1999 and planned for a wedding at Easter 2003.

In November 1995 Andreas made a will. After a number of pecuniary legacies, in addition to the legacy of £50,000 to Renata, he left a hotel to Helena and his residuary estate to Melissa and Angela in equal shares.

In 1999 Andreas and Renata got engaged. Andreas bought 75 Shepherds Bush Road. The upper floors of the property were used as an hotel. By 2002 the basement was refurbished as a flat. Renata claimed that she and Andreas intended get married in April 2003 and that the flat would be their home.

In July 2001 Andreas contacted estate agents, Christie & Co ( Mr Horden), to value all his hotels in England.

On 17 February 2003 Andreas died unexpectedly.

The judge’s conclusions are summarised in paragraph 91 of his judgment:

“ This is a difficult case because my task is effectively to identify the intentions of a man who not only kept his true intentions [to himself], but whose statements about his intentions would often not be reliable. Of his attachment to, his love for, Cyprus, there is no doubt. That his truly first choice looking back over 50 years, would not have been to live here for most of his life, there is also no doubt. My judgment is that his intentions, as his behaviour, adapted over time to his circumstances. Had he merely continued to have a string of short-term girl-friends on a casual basis, he might well eventually to have decided to sell up and go and live permanently in Cyprus. But he did not. As it happened, he formed a successful relationship with another young woman, from an East European country. They lived happily as man and wife, and would have become man and wife. At a point which I would put between the Will (1995) and the date when Miss Cyganik understood she had obtained the commitment to marriage (1999) I believe the line was crossed at which Mr Nathanael’s intention was to reside in England and Wales, in the traditional words, “permanently or indefinitely”

I should also quote from paragraph 90 in which the deputy judge said the following in the context of the evidence about the intended marriage to Renata-

“The tie of the blood relationship was very strong for him for some purposes (reflected in his will) but his own life revolved around his world in London. For nearly 30 years he could have lived in Cyprus had he chosen, albeit not in the part of the island which was special to him. It was home to his parents during their lives. It was and is home to Helena, with whom he was in close touch even if their relationship should probably be described as fiery rather than as warm. But he stayed in London and made his life here, away from his family….”

Earlier in his judgment the deputy judge correctly explained that the case is concerned with Andreas’s intention (paragraphs 11 and 15), there being no dispute about his respective periods of residence in Cyprus and in England. At several points in the judgment the deputy judge held that it had not been proved that Andreas had acquired a domicile of choice in England as at various stages of his life in London i.e. not during his pre-1972 residence in England (paragraph 26); not when he came to England in 1974 following the Turkish invasion of Cyprus and occupation of the part in which he had been born and brought up (paragraph 32); nor in the long period between 1974 and 1992 (paragraph 40). But he concluded that there was a change of intention by Andreas between 1995 and 1999. The events in that period which made a decisive impact on the deputy judge were the development of the relationship between Andreas and Renata, the inclusion of Renata as a pecuniary legatee in the 1995 will, their engagement in 1999 and, as he found, their plans to marry at Easter 2003.

Only one finding of primary fact is challenged on the appeal. That is the finding that Andreas and Renata would have become man and wife had Andreas not died unexpectedly. A lengthy section of the judgment (paragraphs 75 to 90) dealt with the “contentious issue” of the matrimonial intentions and plans of Andreas and Renata. The judge accepted Renata’s evidence that she believed that Andreas had given her a commitment to marry her. To the outside world Andreas had, it was held, behaved as if he wished to marry her. The ruling (paragraph 87) that they were engaged is not challenged on the appeal. The appellants argued that the judge was under a misapprehension in thinking that the engagement was the real issue between the parties. What is said to be the real issue and is challenged is whether Andreas “actually intended that there should be a marriage.”

Evidence was given at trial of the strong feelings among members of Andreas’s family that he would never have accepted the implications of being beholden to a wife and that really he did not intend to marry Renata. Mr Bragiel pointed up the absence of documentary evidence about the formal or informal arrangements for a wedding. Against that there was Renata’s evidence, contested by Andreas’s relations and friends, but accepted by the deputy judge, that they planned to get married in April 2003 at St Bobola’s Polish Parish Church (Roman Catholic) in West London in a ceremony conducted by Father Ryszard Juszczak, who gave evidence that he had seen the couple with a view to arranging a wedding at the church.

Although it is understandable that there were strong, even passionate, feelings on each side on this issue and that a considerable amount of time at the trial was spent on it, the position in this court is shorter and simpler. In the court below there was a conflict of evidence about the marriage plans and arrangements, which had to be resolved on the oral evidence, there being no documentary evidence. No one can be sure about Andreas’s real matrimonial intentions. The issue had to be resolved by the deputy judge on the balance of probabilities On the one hand, there was evidence from family members and friends who knew him well that Andreas was not the marrying kind. On the other hand, there was evidence from Renata, from her friends and from the priest about wedding plans.

In my judgment, there was ample evidence from which the deputy judge was entitled to conclude that Andreas actually intended to marry Renata. Although it was observed that Andreas was willing to deceive people (paragraph 88), the judge did not think that he would go so far as to go to the priest in bad faith. The engagement itself was a fact from which the judge could infer that, in all the circumstances, Andreas actually intended and planned to marry Renata. I would reject the appeal against the deputy judge’s finding that, had Andreas lived, he would have married Renata.

That leaves the crucial question whether Andreas changed his mind after 1995 and formed an intention to live permanently or indefinitely in England, thereby abandoning the domicile of origin which, on the deputy judge’s analysis, he had retained down to about 1995.

On that question I make several general points.

In my judgment, the deputy judge’s inference about Andreas’s change of intention after 1995 regarding his permanent home was wrong. If, as is agreed, Andreas did not acquire a domicile of choice in England between 1958 and 1995, because he did not intend to live in England permanently or indefinitely, it could not reasonably be inferred from what happened after 1995 that he had formed a different intention about his permanent home before he died.

There are several reasons why the deputy judge arrived at the wrong decision, even though he correctly summarised the relevant legal principles.

First, the deputy judge underestimated the enduring strength of Andreas’s Cypriot domicile of origin. This led him to focus too much attention on how specific Andreas’s plans were after 1995 to return to live permanently in Cyprus and too little attention on whether Andreas intended to live permanently or indefinitely in England. The emphasis of the judgment is, with respect, wrong. Although Andreas’s intentions regarding both Cyprus and England are closely interrelated, the adhesiveness of the domicile of origin, the incidence of the burden of proof and the level of the standard of proof all require the person contending for a domicile of choice to establish a clear case that Andreas intended to live permanently or indefinitely in England. For example, in paragraph 91 quoted above the deputy judge observed that, if Andreas had continued with a string of short term girl friends, “he might eventually have decided to sell up and go and live permanently in Cyprus.” In my judgment, the question is not so much whether Andreas intended eventually to return to live permanently in Cyprus, but whether it had been shown that, by the date of his death, he had formed the intention to live permanently in England. The crucial point is that Andreas had a domicile of origin in Cyprus until it was proved that he intended to reside permanently or indefinitely in England.

Secondly, the deputy judge treated the engagement to Renata, her inclusion in his will and the wedding plans as decisive factors in showing that Andreas intended to live permanently in England. Although those events are relevant to his intentions for a permanent home, the deputy judge treated them as determinative without explaining why, in the light of the agreed domicile position down to 1995, they made all the difference and transformed his domicile status, which earlier long term residence, business interests, personal relationships and the birth of his 2 children had failed to achieve.

Thirdly, and connected to the first two points, the division of Andreas’s life in England into periods of time led the deputy judge to divorce the post-1995 events, from which he drew an inference of an intention to make a permanent home in England, from the pre-1995 events from which he correctly declined to make that inference. He should have considered, as at the date of Andreas’s death, the whole of Andreas’s life in retrospect in order to see whether an inference could be made that he intended to make his home permanently or indefinitely in England. By concentrating on the years at the end of Andreas’s life the deputy judge limited his perspective on Andreas’s life and did not take into account all the materials relevant to an inference about Andreas’s intentions. Had he taken into account all the connecting factors with Cyprus and England over the whole of Andreas’s lifetime, he would have found that the evidence was not sufficiently “cogent and convincing” to establish such a serious matter as a change of domicile. He would have concluded that the cumulative effect of the preponderance of the factors did not point “clearly and unequivocally” to an intention to make his permanent home in England, but rather re-inforced the enduring character of his Cypriot domicile of origin.

I would allow the appeal and declare that, at the date of his death, Andreas was domiciled in Cyprus. It follows that Renata’s application issued under the 1975 Act on 7 January 2004 must be dismissed on the preliminary jurisdictional issue.

I agree with the judgment of Mummery LJ. In particular I agree that Scarman J in Re Fuld (No. 3) [1968] P 675 684E-686D correctly set out the principles by which English law determines whether a domicile of origin has been replaced by a domicile of choice. These principles cannot be revisited by this court stemming as they do from Udny v Udny (1869) LR 1 Sc&Div 441, Winans v Attorney-General [1904] AC 287 and IRC v Bullock [1976] 1 WLR 1178. All the cases state that a domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice.

In the present case, it is true to say that Mr Nathanael spent his working life in England after 1974 and became engaged to be married to Ms Cyganik who herself lived in London, albeit illegally. But throughout his life Mr Nathanael maintained his links with Cyprus, he sent one of his daughters to be educated in Cyprus, where she and his granddaughter remain, he took or sent large quantities of money to Cyprus, he bought two flats in Larnaca and had a prospective business interest there, although it was not an interest that produced an income in the same way as the Hellenic Hotel in Shepherds Bush Road. On all the evidence I do not consider that Ms Cyganik discharged the burden on her to displace Mr Nathanael’s domicile of origin and I do not respectfully see on what basis the deputy judge could decide that at some unspecified date between the execution of the will in 1995 and the time of the engagement in 1999, Mr Nathanael decided to reside permanently or indefinitely in England. No event of consequence took place between those dates which could readily justify such a conclusion.

Even if Sir Harry Luke was correct to say that Greek Cypriots are gentler and less strident than their metropolitan cousins (see Lawrence Durrell, Bitter Lemons, page 107 of the Faber edition) it would be surprising to be told that Cypriots are any less attached than other Greeks to their original homeland. On the primary facts he found, I feel that the judge just made the wrong decision.

Mr Noble for Ms Cyganik submitted that Mr Nathanael, at any rate, acquired a domicile of choice on or after his engagement to Ms Cyganik. He relied on Forbes v Forbes (1854) Kay 341 and Aitchison v Dixon (1870) LR 10 Eq 589. As to the first of these cases, it is true that General Forbes acquired an English domicile by living with his wife and son in Sloane Street after serving 35 years in India. But his domicile in India was itself a domicile of choice (his domicile of origin being Scotland) and it is easier to show a change from one domicile of choice to another domicile of choice than it is to show a change to a domicile of choice from a domicile of origin. The General was in any event returning from India permanently to live with a family, consisting of his wife and son, which had existed for all of his 35 years service. A fiancée without children is not the same.

William Allan (the testator in the second case) was Lord Provost of Edinburgh and unmarried. At the age of 40, however, he came to England “for a wife” and “had the good fortune to win the hand of a widow . . . of considerable wealth and expectations”. The happy couple lived for a while in Scotland but Mr Allan suffered from gout and moved to Wyebridge near Buxton for the waters and thereafter to Brighton where he lived with his wife for a further 10 years, having been married for nearly 40 years. It was submitted that Allan had not abandoned his Scottish domicile because the choice of residence was really that of his wife who was the carer and provider of the money for their homes. Sir William James VC said (page 596):-

“The comparative opulence of the wife can make no difference. The residence and home at Brighton were not the less his because he may have deferred, however implicitly, to her wishes. It indeed makes the conclusion in favour of a Brighton domicile irresistible when we find that it was in the highest degree improbable that the wife should ever have voluntarily returned to a Scotch home; that the husband had every motive of interest, of gratitude, and of affection to say to his partner,

‘Your country shall be our country, the home of your selection shall be our home.’”

Mr Nathanael was not dependent on Ms Cyganik to anything like the extent of Mr Allan and it does not seem to me that the value of this authority is any greater than that of Forbes.

I, therefore, agree that this appeal must be allowed. I do not do so with any enthusiasm since I find it rather surprising that the somewhat antiquated notion of domicile should govern the question whether the estate of a person, who was, on any view, habitually resident in England should make provision for his dependants. Now that many family matters are decided by reference to habitual residence, there may, perhaps, be something to be said for reconsidering the terms of section 1 of the Inheritance (Provision for Family and Dependants) Act 1975. As Dr JHC Morris observed of the concept of domicile in the last (3rd) edition of his Conflict of Laws (1984), which he wrote before he died,

“Originally it was a good idea; but the once simple concept has been so overloaded by a multitude of cases that it has been transmuted into something further and further removed from the practicalities of life.”

This observation has not been preserved by subsequent editors (6th edition (2005)) but it deserves to be.

I agree with both judgments and I, too, would allow the appeal.