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Home > Judgments > 2010 archive

Holliday v Musa [2010] EWCA Civ 335

Appeal against decision that a deceased man was domiciled in England and Wales, so allowing a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to proceed. Appeal dismissed.

The claimant under the Inheritance Act was the mother of the deceased's youngest child. The couple had met in 1998 and the child had been born in 1999. The deceased man was a Turkish Cypriot who had left the country in 1958, following sectarian violence, but made regular, lengthy visits to the country since 1974 and had even attempted to stand for President. At all times his family home and businesses, with his first wife and then the claimant, were in England, though he sought to establish non-domiciled status for tax purposes. In the High Court on this point, the deceased man had been found to be domiciled in England, allowing the claimant's Inheritance Act application to proceed. The adult children of the first wife appealed.

In this judgment Waller LJ first identifies, as there was no election of change of domicile of origin, that this is a case where the only issue was whether

"it was right at any stage of his residence in England prior to his death to infer that [the deceased] had formed the intention to settle in England indefinitely and abandon his domicile of origin."

He makes criticisms of the judge in the way the issue had been considered in the court below and so decides to examine the facts again. He concludes that the Court could infer that the deceased had intended to settle in England, because of, among other matters, his dealings with the family home in England where there was an agreement to buy a larger property for the family at the time of his death, and because of evidence from his diary that talked of living in England and visiting Cyprus.

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Neutral Citation Number: [2010] EWCA Civ 335
Case No: B4/2009/0937
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Her Honour Judge Kushner QC,
sitting as a Judge of the High Court

GD07FO1113
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/03/2010

Before :
LORD JUSTICE WALLER
Vice-President of the Court of Appeal, Civil Division

LORD JUSTICE RIX
and
LORD JUSTICE WILSON
- - - - - - - - - - - - - - - - - - - - -
Between :

Holliday and Anr (Respondents)

- and - 

Musa and Ors (Appellants)

-----------------------------
Mark Hill QC and Miranda Allardice (instructed by Kingsley Napley Solicitors LLP) for the Appellants

Peter Crampin QC and Ulick Staunton (instructed by Hunters Solicitors) for the Respondents

Hearing date : 2nd March 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Waller :
1. This is an appeal by the adult children of Ramadan Hussein Guney (Ramadan) against the finding by Her Honour Judge Kushner QC, sitting as a Judge of the High Court. By her judgment, given on 19th March 2009, she held that the deceased was domiciled in England and Wales at the date of his death on 2nd November 2006. The judge thereby resolved a preliminary issue in proceedings brought against the adult children by Diane Holliday (Diane) with whom Ramadan had an intimate relationship going back some years before his death. A son of hers by a previous relationship was also a claimant. On the judge's conclusion, it followed that the court would have jurisdiction to entertain the proceedings against Ramadan's estate for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). The appellants, with the permission of Scott Baker LJ, challenge the judge's conclusion, asserting that on the law properly analysed and on the facts properly analysed Ramadan never abandoned his domicile of origin, Cyprus.

2. Neutral in the above dispute (although joined as a defendant) is Houssein Ramadan Guney (Houssein) aged 10 years old, the son of Diane and Ramadan with whom the adult children have reached agreement under which they will share the assets of Ramadan's estate in England in equal shares. Albeit neutral, Houssein is a significant party in considering the issue in this case.

3. It is important to emphasise at the outset (and I am sorry to say that unfortunately I do not think the judge at all times kept this in mind), there was only one issue for the judge to decide in order to reach a conclusion on the preliminary issue. There was no issue that Ramadan was originally domiciled in Cyprus. There was no issue that he resided in England at various addresses from 1958 until his death in 2006. It was never suggested that when he took up residence in England in 1958 he did so at that time with the requisite intention of settling in England so as to have abandoned his domicile of origin and acquired a domicile of choice in England. It was furthermore never suggested by either side that he at some stage acquired a domicile of choice in England but had, by some later stage, abandoned that domicile of choice and that his domicile of origin had thus revived. This was one of those cases in which if he was to have acquired a domicile of choice in England there came a stage, following lengthy residence, where it was right to infer that he had the intention to reside in England indefinitely – to settle in England and abandon his domicile of origin. The only issue was therefore was it right at any stage of his residence in England prior to his death to infer that he had formed the intention to settle in England indefinitely and abandon his domicile of origin.

4. That this is a very difficult question is demonstrated by Rule 11 in Dicey Morris & Collins 14th edition page 139 and the text thereunder. "Any" circumstance in a person's life can be relevant and what has been considered important in some cases, e.g. the desire of a person to be buried in a particular place, has been considered an important factor in some cases and discounted in others; the presence of a man's wife and children in a country has been taken as an important factor, "but again this is not decisive".

5. Some criticism is made of the judge by Mr Mark Hill QC for the appellants that the judge did not refer to the authorities cited to her by both sides in identifying the principles of law which she was to apply. That, I think, would be an unfair criticism if she accurately set out the principles which it seems were not in issue, and if in the result it was clear that she had accurately applied the principles. But there are indications that she did not, at least with precision, define the principles of law so as to identify the only question she had to answer, and indications that she may not have approached the only question she had to consider with the principles accurately understood in mind.

6. The most obvious indication that she may not have been approaching the matter correctly is the fact that she did not once pose the question – did Ramadan ever form the intention to reside indefinitely in England? Having surveyed many points in the life of Ramadan in paragraph 6 she commenced paragraph 7 with these words:-

"7.1 Although all the matters above are relevant to the question of Mr Guney's domicile at the date of his death, they do not, in my view, point cogently for or against the proposition that Mr Guney intended to end his days in N. Cyprus."

7. Of course it would be highly material if she had concluded that Ramadan did intend to "end his days in Cyprus", but the onus was on those seeking to show that he no longer retained his domicile in Cyprus to establish that he had formed the intention to reside indefinitely in England and "end his days" there.

8. Furthermore when setting out the principles of law which she was going to follow she referred to certain issues which simply did not arise. She said this at paragraph 2.5:-

"The issue therefore arises, that, if Mr Guney had not assumed a domicile of choice in the UK and retained his domicile of origin, was that domicile Greek Cypriot by reason of the position of Paphos following partition, or Turkish Cypriot, by reason of his culture and heritage?  If the decision is that Mr Guney was domiciled in England, that issue does not fall to be decided."

But the issue she identified never would arise and it was never argued that it would since, if Mr Guney had a domicile of origin it was in Cyprus, not one part of Cyprus. That is not to say the problems in Cyprus might not be relevant to the question whether he intended to reside permanently somewhere else, but that is a different matter.

9. She then said this at paragraph 2.8:-

"If I find that Mr Guney intended to shift his main residence back to Cyprus or not to end his days here, then the domicile of choice would in effect have been rescinded and the domicile of origin would have revived."

But no-one was arguing that Mr Guney had achieved a domicile of choice in England but then abandoned it.

10. She only refers to the tenacity of a domicile of origin in paragraph 2.9 as a last point on the law, whereas one would expect, if the only issue had been identified at an early stage, clearly at this stage tenacity of the domicile of origin would have been identified as an important aspect of that issue.

11. Thus there is force in the argument that the judge may not have had the principles of law she was to apply as accurately in her mind as she should have done. How then do I suggest the principles should be summarised?

12. A similar case to the present is Agulian v Cyganik [2006] EWCA Civ 129. By that I do not mean simply that it involved a Cypriot and the question whether he obtained a domicile of choice in England. I mean that it was a case in which, like the present, the only question was whether an intention to reside in England indefinitely could be established not when Mr Agulian (Andreas in the judgment) arrived but following a long period of residence. It is helpful therefore to see what the approach of the court was to that problem.

13. Paragraphs 5 and 6 set out the law in the following terms:-

"5. 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]

6. 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…."

14. It is also material to pick up one or two other points of relevance. First in Agulian the Judge had found that Andreas did not have the intention to reside indefinitely in England before 1995, even though by 1995 he had resided in London for 34 years; that finding was not contested on the appeal. The judge had found that Andreas had met a Polish girl living illegally in England by November 1995 when he made a will leaving a legacy of £50,000 to her. He got engaged to her in 1999. The judge found "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 [Andreas'] intention was to reside in England and Wales, in traditional words , "permanently and indefinitely"".

15. Mummery LJ made the following general points, which are of relevance to the approach in this case. Having upheld the judge's finding of fact that Andreas had formed the intention to marry Miss Cyganik, he said this:-

"45. 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.

46. On that question I make several general points.

(1) First, the question under the 1975 Act is whether Andreas was domiciled in England and Wales at the date of his death. Although it is helpful to trace Andreas's life events chronologically and to halt on the journey from time to time to take stock, this question cannot be decided in stages. Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that "Life must be lived forwards, but can only be understood backwards" resonates in the biographical data of domicile disputes.

(2) Secondly, special care must be taken in the analysis of the evidence about isolating individual factors from all the other factors present over time and treating a particular factor as decisive. In this case the deputy judge carefully considered the long residence in England in the context of Andreas's continuing connection with Cyprus throughout his time here. In relation, however, to the years after 1995 the focus of the judgment is almost entirely on the relationship with Renata, their engagement and the wedding plans. Nothing much else happened between 1995 and 2003 that could have altered the agreed position that, despite having lived most of his life from the age of 19 in London and having made his fortune here, Andreas still retained, at the age of 55, his Cypriot domicile of origin. The development of the relationship with Renata was the only factor from which an inference could be made that Andreas changed his mind in the period 1995 to 1999/2003 about where he would make his permanent home. The judge's treatment of that one factor as decisive or conclusive of domicile must be examined with care. As appears from the authorities, marriage by a man with a domicile of origin in one country to a woman domiciled in another country and post-matrimonial residence with his wife in that other country for many years are important considerations, but they are not conclusive. The matrimonial factor does not, as a matter of law, mean that the husband acquires a domicile of choice in that country and abandons the domicile of origin, to which he has not actually returned to live: IRC v. Bullock [1976] 1WLR 1178; see also Dicey & Morris on The Conflict of Laws 13th Ed para 6-049 and Abraham v. A-G [1934] P 17. The court was also referred to Forbes v. Forbes (1854) Kay 341; Aitchison v. Dixon (1870) LR 10 Eq Cas 589; and A-G v. Yule (1931) 145 LT 9 at 16,17. They all make interesting reading, but a comparison of the facts of one domicile case with the facts of another domicile case is of limited assistance in deciding this case."

16. Mr Hill submitted on the part of the appellants that in addition to misdirecting herself as to the right question, the judge in this case fell into the same trap as the judge at first instance in Agulian. Following paragraph 7.1, which I have already quoted, in which the judge concluded that factors examined so far were "neutral" in relation to Ramadan's intention "to end his days in Cyprus", the judge examined factors that she found to be less neutral, and concluded "all in all, I find the evidence of the alleged intentions of [Ramadan] to return to live in Cyprus less satisfactory than the other evidence from a host of witnesses, from all different backgrounds and some with no apparent loyalty to Ms Holliday, who talk of Mr Guney's sentiments of being part of the UK and having no desire to return to live in Cyprus." One notes that again there is a concentration on an intention to return to Cyprus which although highly material is not actually the question. If, for example, Ramadan had not made up his mind, his domicile would remain Cyprus. She then says this in 7.9 and 7.10:-

"7.9 Therefore, it follows that I have to take into account that from 1958 to 2006, some 48 years, Mr Guney [Ramadan] was resident in England.  This is not decisive of domicile but is significant.

7.10 Moreover, there are three issues which mark out the true intentions of Mr Guney [Ramadan], in my view.  The first is the intentions of the deceased in respect of the house in Newmarket House, Roundhill Drive, Woking, Surrey.  The second is his desired arrangements for his funeral and burial.   The third is his approach towards his son, Houssein."

17. She then made her findings in relation to each of those matters. So far as "Newmarket" was concerned, the issue at the trial was whether Ramadan ever did intend to buy this larger and more expensive house for himself, Ms Holliday and Houssein. The judge found that he did concluding at 7.20:-

"I see no particular inconsistency in the suggestion that in the latter stages of his life he wanted a larger property, with a garden and room for a study.  His opting for more comfort, if anything, goes hand in hand with the renovations in the flat in Kyrenia."

18. So far as arrangements for burial are concerned the issue at trial was whether Ramadan had simply built a monument in Brookwood Cemetery where the coffins of Ramadan and his wife could rest until returned to Cyprus, where he wished to be buried with his wife overlooking the sea, or whether he had prepared a mausoleum where he and his wife and his family were to be buried permanently. The judge  concluded in paragraphs 7.36 and 7.37 as follows:-

"Further, Mr Guney [Ramadan] himself said he would "disappear, go to find your mother and not come back.  Maybe after I finish the mausoleum.  I know as soon as it is finished I will be ready to go" (my spelling).  This has the mark of a man waiting to finish his burial place, not a monument."

19. As regards Houssein the issue was whether he was not truly attached to his son or whether he was deeply attached to him. The judge concluded he was deeply attached and said this in paragraphs 7.40 to 7.43:-

"7.40 I accept the evidence that Mr Guney [Ramadan] realised that he would be unlikely to see his youngest child grow into adulthood and he was concerned to spend as much time with him as possible before he died.  He said as much in his journal in Barbados.

7.41 That desire would simply not be possible if he were to move to live in Cyprus.  Houssein had been brought up in the UK and there was no suggestion that either Ms Holliday or Houssein would move to Cyprus if Mr Guney [Ramadan] were to settle there for his final days.

7.42  In view of the closeness between father and son, I do not think that Mr Guney [Ramadan] would be satisfied with his son merely visiting him either.  He wanted to be with him as much as possible.

7.43 If for no other reason, the relationship with Houssein demonstrated that Mr Guney [Ramadan], despite his links, emotional ties and pure love for his birthplace, had no intention of moving back to live there."

20. That led to her conclusion in paragraph 8, which was in these terms:-

"Taking all these matters into account, I am of the view that whatever his domicile of origin could be deemed to be, given the political upheavals over the years, by the time of his death Mr Guney [Ramadan] established a firm domicile of choice in the UK."

21. The reference to a "deemed domicile of origin" seems to be a reference back to paragraph 2.5 which as already indicated was not a relevant issue. Even in paragraph 8 the judge is not using the language of "intention", which was the issue she had to decide.

22. In my view there is force in Mr Hill's submission that in picking out the three features the judge may not have obeyed Mummery LJ's guidance about the care that needs to be taken to look at the whole of a person's life. It is furthermore (and this is in reality the same point put in a different way) unsatisfactory to my mind that the judge has not traced matters through chronologically with the English connection intertwined with such contacts as Ramadan retained with his domicile of origin. Taking these factors together, with the danger that she misdirected herself in law, it seems to me incumbent on this court to examine the facts carefully again.

23. In considering whether Ramadan had at some stage an intention to reside permanently and indefinitely in England, long residence in England is of course a starting point. It is furthermore important that the residence in England was the home of his family. That was true during his marriage to Souheyla and was true once he was in a relationship with Diane. It is common sense that the longer the residence and the more it is home, the more likely the inference that there is the intention to reside permanently and indefinitely. But at any stage when it might be proper to make that inference, it is important to place in the balance any continued connections with Cyprus so as to be able to be clear whether his intention has become one of settling finally in England, abandoning Cyprus. One must further be satisfied that the situation is not one in which Ramadan has simply not finally made up his mind because, as Scarman J said in Fuld , in such a situation the domicile of origin is retained.

24. Findings of primary fact by the judge are not attacked and we have an agreed chronology. Furthermore, even though it is incumbent on this court to reconsider the proper inferences to draw as to Ramadan's intentions, in my view we ought to remember that the judge saw and heard all the witnesses and I do not myself think that this is a case in which the Court of Appeal should say simply that it is in as good a position as the judge to make "evaluations" as to people's intentions. The judge was steeped in the evidence all of which would be relevant to the question as to what objectively were Ramadan's intentions so far as residence in England was concerned. Thus, despite any misdirections, it would not be right to cast aside completely the judge's view as to Ramadan's state of mind, and I will not do so.

25. I would identify the following as the material facts from which any inference is to be drawn. I have taken the summary from the chronology and the judge's judgment and will try to combine factors which might point to England as the place he has chosen to settle and factors which might indicate that he has not abandoned Cyprus.

26. Ramadan was born in Paphos in 1932 to parents of Turkish descent. Paphos is in what is now the Greek part of Cyprus. He married a Cypriot in the 1950s and had two children on the island.

27. His departure from the island in 1958 was occasioned by sectarian violence. He was imprisoned and lived under curfew. He came with his family to England but continued to be a member of "Volkan", fighting for independence. He bought a house in Lambeth Road in 1959. Two more of his children were born in England, one in 1959 and the other in 1962.

28. He returned to Cyprus to visit in 1963.

29. He worked hard in England to support his family, becoming a man of substance. Two more children were born in England in 1965 and 1967.  In 1970 or 1971 he and his wife started a music shop selling Turkish music. His wife was an active partner until 1985.

30. In 1973 he bought a shop with living accommodation at 60 Green Lanes Stoke Newington and sold Lambeth. In 1974 he purchased 58 Green Lanes as well.

31. In 1974 Turkish forces occupied a third of Cyprus and Ramadan commenced regular visits to Cyprus.

32. In 1977 he helped found the UK Turkish Islamic Trust in London, was chairman in 1977 and continued his involvement until at least 1991.  He was a member of Hackney Muslim Council until 1988 and was London's first Turkish Cypriot councillor.

33. In the late 1970s he was involved in the establishment of the first Turkish Cypriot mosque in the UK and also a funeral service for Turkish Cypriots. 

34. Between 1978 and 1980 he acquired land at Blueberry Farm, Sevenoaks and spent substantial sums improving the same. He sold the same in 1988.

35. In the early 1980s he bought 55 burial plots at Brookwood Cemetery and over time purchased the whole, buying shares in Brookwood Park Limited in 1985. Major improvements were carried out over time and, according to the judge, the cemetery was "a source of pride and an enduring passion".  There was a suggestion that he received an offer of £8 million for the cemetery in 1989/90.

36. In 1987/88 Ramadan and his wife Souheyla separated, he living next door at 60 Green Lanes, Souheyla continuing to live at 58 Green Lanes.

37.  As a leading figure in the Turkish Cypriot community in the UK, in 1991 he stood surety for Asil Nadir. According to the judge he spent more time than usual in Cyprus because Nadir was prevented by bail conditions from going.

38. His wife Souheyla died in January 1992 and was buried in the cemetery at Brookwood, but only in a temporary spot without a headstone – "a great bone of contention between Mr Guney [Ramadan] and his adult children" according to the judge. Ramadan bought matching caskets, leaving his in storage in the mosque in London.

39. In 1992 Ramadan purchased a house in Cyprus at Haspolat (Mia Milia). It was let to tenants.

40. Between 1991 and 1993 the Inland Revenue took a great interest in Ramadan's affairs and tax liabilities. Various notes indicate an interest in his "domicile" and ultimately in a note dated 28/6/93 there is recorded that "Mr Guney considers himself non-domiciled in the United Kingdom and the appropriate application for a ruling will be submitted shortly".  In December 1993 the revenue inquiry form signed by the deceased put his domicile in "N.Cyprus", the deceased stating he intended to "retire in Cyprus". For all tax returns after this date Ramadan claimed non-domicile status.  In his tax return he gave his address as 60 Green Lanes. He had property in Cyprus, a one-sixth share of 50 acres at Vrecca, "8 pieces of land" and "a 3 bedroom house in village of Haspolet [sic]".  He had bank accounts in Cyprus.

41. In 1994 Ramadan purchased 203 Green Lanes as an investment property

42. On 31 October 1994 he made a will which contained a forfeiture clause in respect of any child or grandchild marrying a non-Muslim or a person not of Turkish Cypriot origin.  It was 'cancelled' in 2001.

43. In 1996 Ramadan spent 19 days in Cyprus. In 1997 he spent 66 days in Cyprus. He may have used the property in the village of Haspulat near Nicosia (see his declaration quoted below) but it may be he used a flat he maintained in Kyrenia at all times (see para 6.22 of the judgment and para 6.19 where the judge says the Haspulat property was used for tenants).

44. In 1997 he signed a DOM 1 form in which he stated that he considered he was domiciled in N. Cyprus on the grounds "I was born in Cyprus and intend to return there"; that he maintained a property "available for his occupation" in Haspulat; and that his future intentions were "To retire in Cyprus after making sufficient capital accumulation".

45. In March 1998 he met Diane Holliday. He invited her to Cyprus with him. They commenced a personal relationship in or about May 1998.

46. In 1998 he spent 180 days in Cyprus during which time he stood for election for the UDP party, on a platform for the reform of the law for the enlistment by Turkey of sons living abroad. In 1998 he also bought a house in Lapta. His plans were to restore or pull down that house and provide accommodation for children and families. 

47. Diane gave birth to Houssein in England on 3 June 1999.

48. During 1999 Ramadan spent 31 days in Cyprus and for about 18 days of that, between 14th August and 3rd September, Diane and Houssein came with him on holiday.

49. In January 2000 Ramadan purchased a house in Chevington, Bury St Edmunds, as a home for himself, Diane and Houssein – also a home for Diane's children Pamela and Kevin.

50. In 2000 Ramadan declared he intended to stand for the Presidency of Cyprus declaring "Cyprus this is my country and my home town."  In the result he spent 82 days that year in Cyprus and for part of that time Diane and Houssein were with him; 23rd February to 3rd March and 10th to 30th April for the election and 31st July to 16th August for a holiday. He was prevented from standing as President because he did not have a university degree and was not resident in North Cyprus.

51. In 2001 Ramadan spent 38 days in Cyprus. It was in this year he cancelled his will. He made financial provision for Houssein, depositing £10,000 with Dunbar bank, and subsequently in an investment fund for his education. In December 2001 he was "severely ill".

52. In 2002 he spent 32 days in Cyprus, 30 of those on holiday with Diane and Houssain; 15th July to 27th July and 11th August to 8th September 2002. Sometime before 2002 Ramadan commenced work on a mausoleum built on part of the cemetery.  Work on it was not constant or consistent.

53. In August 2002 Ramadan applied for a licence to run a Turkish radio station in London. In 2003 Ramadan spent 61 days in Cyprus. In May 2003 he bought Victoria Road, Knaphill, as a home for himself, Diane, Houssein and two of Diane's children.

54. In 2004 Ramadan spent 104 days in Cyprus. This was the year in which litigation with Mrs Tanfer commenced; there were five court hearings and the judge held the litigation accounted for his visits being "above the norm". On 20th April 2004 he transferred £550,000, being the price received for 203 Green Lanes to his account in Lefkosa, Turkey (i.e. the Turkish Republic of Northern Cyprus). From 17th to 29th August 2004 Diane and Houssein holidayed with Ramadan in Cyprus.

55. In September 2004, the 150th Anniversary of the cemetery, Ramadan launched his own restoration fund "for the cemetery he owned, loved, and admired" (as per cemetery website).

56. In 2005 Ramadan spent 120 days in Cyprus; there were ten court hearings in the Tanfer litigation and that accounted for visits being "above the norm".  During 30th May to 4th June and 2nd to 23rd July 2005 Diane and Houssein were on holiday with Ramadan in Cyprus. Also during 2005 there was correspondence re the sale of Brookwood Cemetery to Jokula Limited.

57. At the beginning of 2006 Ramadan gave instructions for the mausoleum at Brookwood cemetery to be completed.

58. On 7th April 2006 Ramadan wrote to his son, Erkin, saying in the context of wishing to drop the litigation in Cyprus "I hope one day soon I divide everything to all of you and I disappear, go to find your mother and not come back. Maybe after I finish the mausoleum. I know as soon as I finish I will be ready to go."

59. In 2006, he spent 89 days in Cyprus during which there were 17 court hearings accounting for the visits being "above the norm"; the final hearing was on 26th June 2006. But in May/June Ramadan and Diane with Houssein went on holiday in Barbados. There he kept a diary in which he wrote amongst many things "I am at least 5000 kilometers from where I live in England . . . because I say that visiting Cyprus and Turkey at least four times a year does not count as a holiday: because you visiting loved ones and the endless invitations that you end up going to dine on one table and then going onto the next is not a holiday . . .". Then on 21/6/2006 . . . "I am seventy years old and have had three bypass operations. I have been diabetic for fifteen years and I am on insulin twice a day, and have [several] tablets; so if one takes these into consideration then I am living on borrowed time: thank God, I am living despite everything else. Maybe it is God letting me live so that I can raise Houssein" Also he recorded "We will return to London then I'll have to make a decision (about relationship)" - presumably with Diane.

60. In September 2006 an offer for Newmarket (see para 17 above) at £925,000 was accepted. The plan ultimately was to sell Knaphill "currently our main residence" and use money from abroad to purchase Newmarket. The purchase was not complete before Ramadan died in Cyprus in November 2006.

61. Ramadan's body was brought back to England, where a further post-mortem was carried out following a first post-mortem in Cyprus.  The circumstances of his death were suspicious. He was initially buried in the mausoleum and an application was made by one of the adult children (Gonul), the application being signed by the others to exhume Souheyla's body the reason for removal being "To bury alongside my father, my mother's wish. The mausoleum was not complete until now (father is being buried on Friday)".

62. In November 2007 the adult children applied to exhume the remains of their father and mother on the basis that "My[father/mother] wished be buried in Cyprus where [he/she] was born." This did not in fact take place as a result of protest by Diane and Houssein.

63.  The above facts are not quite the full story. First it is necessary to say a little more about Ramadan's relationship with his wife and then Diane. Mr Guney had relationships with other women both during his marriage to Souheyla, and his relationship with Diane. He appears to have separated from Souheyla for a short while. But he clearly made a home in England with Souheyla and his adult children, and did not have a "home" in Cyprus. His relationship with Diane was clearly not always smooth running. The judge said this at paragraph 4.22:-

"I accept that Mr Guney [Ramadan] spent an increasing amount of time at Glades Cottage in the Cemetery, including staying there overnight on occasions without Ms Holliday.  I further accept that Mr Guney [Ramadan] may have kept a separate bedroom in Victoria Road.  I accept that, on occasions he regretted having a partner who was significantly younger than him and that he felt they had less in common than previously.  However, although there may have been disputes between him and Ms Holliday, I am of the opinion that their relationship remained intact."

64. He certainly bought property as a home for himself, Houssein and Diane even before contemplating the purchase of Newmarket.

65. Second, it is important to take into account that the relationship between the adult children and Diane, particularly once Ramadan died, was not good and each had an axe to grind. Diane would only obtain a share of the estate for herself and her children if Ramadan died domiciled in England. The adult children could only keep Diane away from that share if he died domiciled in Cyprus – thus the final move to have their mother and father buried in Cyprus as any indicator should be discounted as it was rightly discounted by the judge. Diane's evidence relevant to Ramadan's position cannot have been neutral and the judge's comments about Diane at paragraphs 4.17 and 4.18 would indicate she did not treat it as such.

66. Third, declarations by Ramadan during his lifetime to the Inland Revenue must be treated with some caution. Nevertheless they cannot be ignored where they are consistent with the facts. What he wrote in his diary is likely to be more reliable.

67. Against the above I come back to the question - has it been established, on the balance of probabilities, that the proper inference to draw from the facts is that by some stage prior to his death Ramadan became settled in England and intended his residence in England to be permanent and indefinite, and the place where he would end his days? Rule 11 in Dicey quoted above demonstrates how difficult that question can be. But, where someone has clearly set up their home for a very long time in a country, has had a family there and does not have a home elsewhere, that must provide a strong starting point. Having expressed to the Inland Revenue an intention to retire in Cyprus, it is worth pointing out that at the age of 74 he had still not done so.

68. Factors against Ramadan not having had an intention to abandon his domicile in Cyprus seem to be the following. First, his interest in charities and bodies as a Turkish Cypriot; but that can only be taken so far, since that was all carried out in England and would not prevent him intending to set up his residence here permanently.

69. Then there are his declarations to the revenue. But it seems to me that the declarations to the revenue were consistent with what Ramadan wished the facts to be. He wished to achieve a non-dom status. But his expressed intention to retire to Cyprus was of the vague variety in relation to which he could still be intending to reside permanently in England so as to achieve a domicile of choice in England. Scarman J put it this way in Fuld, and I repeat for convenience a short passage from that quoted above, "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 would 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". He, in any event, had not retired to Cyprus despite his age by the time he died.

70. When he stood as local candidate in Cyprus and/or declared himself a candidate for president, one must presume his intention would have been to be in Cyprus, if elected, but it is far from clear whether, with Diane and Houssein to look after, he would have had two homes or what he would have done. He, in any event, failed in both ventures and he did not set up a "home" in Cyprus.

71. There are strong indications that having had a home with his first family in England, he wished to set up a family home with Diane and Houssein in England. He bought a house for her and himself to live in with Houssein very soon after Houssein's birth. By the time of his death that intention was the firmer with the prospect, to which he agreed, of a larger house in Woking, Newmarket House, bought with money brought back from abroad. If his diary cast some doubt on his relationship with Diane in June 2006, after that holiday in Barbados, the larger house was agreed to be bought. That is consistent with his wishes to set up an even more permanent home for himself with Diane and Houssein.

72.  It further seems to me relevant that although Diane and Houssein had holidayed in Cyprus over a number of years, Ramadan and Diane never set up a permanent home there. In 2006 they did not even holiday in Cyprus, they holidayed together in Barbados. Importantly in his diary he talked of living in England and visiting Cyprus.

73. In 2006 he wanted the vault in the mausoleum completed, a mausoleum in which he, Souheyla and all the family would be buried. When he died his adult children wanted to exhume their mother not for burial in Cyprus with him but for her to be buried in the mausoleum with their father.

74.  It seems to me that for many years Ramadan's permanent home was in England and that continued after the death of his wife and once he began his relationship with Diane by whom he had a son. If he had an intention to return to Cyprus at some stage it was for many years a rather vague intention "to retire there". At least by the time of his death even that intention would appear to have disappeared. The indications are that he had made up his mind, consistent with his permanent home being in England, that that was where he wished to end his days and be buried.

75. This was the conclusion reached by the judge and, although I have been a little critical of the way she reached it, I would uphold her decision.

Lord Justice Rix:
76. I agree.

Lord Justice Wilson:
77. I also agree.