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Agulian and Another v Cyganik [2006] EWCA Civ 129

Appeal recognising domicile of origin in substitution for alleged domicile of choice allowed, in the context of an application pursuant to s2 Inheritance (Provision for Family and Dependants) Act 1975.

Court of Appeal: Mummery and Longmore LJJ and Lewison J (24 February 2006)

Appeal recognising domicile of origin in substitution for alleged domicile of choice allowed, in the context of an application pursuant to s2 Inheritance (Provision for Family and Dependants) Act 1975.

This was an appeal by the personal representatives of the late Mr Andreas Nathanael (Andreas) from an order of a deputy judge of the High Court dated 2 May 2005. On the trial of a preliminary issue, he had held that Andreas was domiciled in England at the date of his death; it followed that there was jurisdiction to entertain financial provision proceedings brought by Miss Renata Cyganik (Renata) against Andreas's estate.

The question for the appeal court was whether the deputy judge was wrong in holding that Andreas, who was born in Cyprus in 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. Since this was an appeal contesting the correctness of an inference as to Andreas's relevant intentions between 1995 and 1999, it was agreed that the function of the appellate court was to decide whether the inference was 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).

The court reviewed the applicable law, approving significant passages of Scarman J's judgment in Re Fuld [1968] P 675 and reaffirming the principle 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; further, the court set out a chronology of Andreas's life that established his connections to Cyprus and England respectively, and considered the judge's decision on domicile. The relevance of the period between 1995 and 1999 was that, in November 1995, Andreas made a will, including a legacy of £50,000 to Renata; and, in 1999, Andreas and Renata became engaged, with the apparent intention that they would marry in April 2003.

The court observed that the question to be determined was whether Andreas was domiciled in England and Wales at the date of his death, and, although it was helpful to trace Andreas's life events chronologically and to halt on the journey from time to time to take stock, this question could not be decided in stages. Also, special care had to 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.

Held, allowing the appeal, that the deputy judge's inference about Andreas's change of intention after 1995 regarding his permanent home was wrong. Since it was agreed that Andreas had not acquired a domicile of choice in England up to 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.

The question was not so much whether Andreas had 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 was that Andreas had a domicile of origin in Cyprus until it was proved that he intended to reside permanently or indefinitely in England.

In view of the court's declaration that Andreas was domiciled in Cyprus, Renata's application for financial provision must be dismissed on the preliminary jurisdictional issue.

Read the full text of the judgment here