Crossing borders: Disputes and Domicile

whichwayI’ve always been fascinated by this particular question as to how to resolve a dispute where the issue of the deceased’s domicile is in question.  There have been a few cases that discuss the issue of domicile, but the question as to what should happen when this issue is in dispute AND there’s a dispute as to a matter in the estate administration or a family provision claim, for that matter, has been a curious one for me.

Whilst there are multiple authorities on domicile in this area, such as Hitchcock v Pratt, I personally feel that more judicial guidance on the topic could be well received by the greater legal profession in response to a significantly complex and ever-changing landscape of succession law.

I was rather excited (as the true succession nerd that I am) when I saw that the case of Application of Perpetual Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159 was placed before the Court again recently for determination of the issue.  You may find it easier to read the two cases together.  The first dealt with an earlier domicile issue, among other things, with respect to the deceased’s connection to the United Kingdom.   

Yesterday, the Court published the decision of Application of Perpetual Company Ltd; Re: Estate of the late Evelyn Mary Dempsey (No. 2) [2016] NSWSC 1718 where they had asked the Court for a determination as to whether the deceased died domiciled in New South Wales or in Queensland.  The answer of which would ultimately determine the issue as to the beneficiaries upon a partial intestacy.

The Court did not ultimately determine my question other than to order the parties head to mediation before March 2017.  The Court was not prepared to rule on the question of domicile, instead raising it’s own motion of whether or not a mediation should taken place between the State (being entitled under a partial intestacy in NSW as bona vacantia) and a person appointed to represent the deceased’s Queensland relatives. The Court, determining the matter and utilising it’s statutory power to order a mediation under section 26 of the Civil Procedure Act 2005 (NSW), ordered the State of NSW and the person appointed to represent the deceased’s Queensland relatives to resolve the question of who is entitled to the deceased’s intestate estate between them. The Court ordered that the matter should press on to mediation as there was a good chance of resolution at mediation, despite the issue of domicile, and such resolution would ultimately be in the best interests of the estate and beneficiaries.

In a complicated set of circumstances, particularly surrounding the identity and location of beneficiaries, the Slattery J said:

In my view, this is a case where both the nature of the proceedings and the parties involved and the issues that remain are such that there is a real prospect of a mediated resolution of the proceedings and that such a resolution would be in the best interest of the parties: see New Idafe Incorporated v Barnard [2007] NSWSC 1107 at [17]. Moreover, a negotiated solution is attractive in a case such as this where some of the potential beneficiaries are already elderly and a search may have to be undertaken further to ascertain the full class of beneficiaries entitled – it is a matter where early certainty is desirable: Oasis Fund Management Ltd v ABN Amro Bank NV [2009] NSWSC 967.

This demonstrated a preference of the Court to have the matter resolved at mediation, rather than the Court having to determine the issue at trial, specifically noting the desire to save the Court’s time and resources on the issue.  Whilst making the Orders, the Court did note that the matter may still find it’s way back to the Court for judgement on the issue but that the Court is hopeful, nonetheless, that the matter could resolve at mediation.

For the meantime, my curiosities will have to remain in tact; until next time.

You can read the case here.

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