Cyganik v Agulian
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Longmore,Mr Justice Lewison |
| Judgment Date | 24 February 2006 |
| Neutral Citation | [2006] EWCA Civ 129 |
| Docket Number | Case No: A3/2005/0927 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2006 |
[2006] EWCA Civ 129
Lord Justice Mummery
Lord Justice Longmore and
Mr Justice Lewison
Case No: A3/2005/0927
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR NICHOLAS DAVIDSON
SITTING AS A DEPUTY JUDGE OF THE
CHANCERY DIVISION
HC 04 C00035
Royal Courts of Justice
Strand, London, WC2A 2LL
MR EDWARD BRAGIEL (instructed by KSB Law) for the Appellant
MR PHILIP NOBLE (instructed by AEP Zaleski) for the Respondent
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.
Domicile: the legal principles and proof
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…."
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 choice is a serious matter not to be lightly inferred from slight indications or casual words."
Role of Court of Appeal
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...
To continue reading
Request your trial
-
Ray v Sekhri
...to support a finding of domicile of choice in England by 1970/71. He makes a helpful reference to the decision of this court in Agulian v Cyganik [2006] EWCA Civ 129 which considered the role of the appellate court in a case involving domicile where the issue is likely to involve considerat......
-
GS v SS and Others
...was referred to Barlow Clowes International v Henwood [2008] EWCA Civ 577, [2008] BPIR 778, where the principles are summarised, and to Cyganik v Agulian [2006] EWCA Civ 129, [2006] 1 FCR 406. The facts of that case are striking for, despite residence in this country for 45 years and having......
-
Peters Roger May v Pinder Lillian Gek Lian
...return to Singapore. 100 In so far as Pinder’s connections in England are concerned, Ms Barker cited two cases, viz, Agulian v Cyganik [2006] EWCA Civ 129 (“Agulian”) and Robert Gaines-Cooper v The Commissioner for HM Revenue and Customs [2007] EWHC 2617 (“Robert Gaines-Cooper”). In Agulian......
-
Gaines-Cooper v HM Revenue and Customs
...then the tribunal must look at the evidence over a more prolonged period than might otherwise be the case. 40 In Agulian v Cyganik [2006] EWCA Civ 129 the question was whether Mr Andreas Nathanael (Andreas) had acquired a domicile in England at the date of his death. He had in fact been res......
-
Coller v HMRC: Actions Speak Louder Than Words
...domicile decisions relate to a deceased taxpayer, the same principles apply and were summarised by Mummery LJ in Cyganik v Algulian [2006] EWCA Civ 129: "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......