MRS ANN REDDINGTON AND OTHERS v. ALISTER MACINNES AND OTHERS
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD CLARKE in the cause MRS ANN REDDINGTON AND OTHERS, Pursuers; against ALISTER MacINNES AND OTHERS, Defenders: ________________ |
Pursuers: Hardman; Ketchen & Stevens, W.S.
Defenders: Wallace; Robson McLean, W.S.
15 February 2002
[1]This is an action of declarator, relating to the testamentary succession of the late John Grant Riach, who died in Bournemouth, Dorset on 23 December 1999, aged 95. I will hereinafter refer to Mr Riach as "the deceased". There are seven pursuers, all of whom are averred to be beneficiaries, or prospective beneficiaries, of the deceased. The first defender is a solicitor, who is the executor nominate of the deceased and sole trustee of the deceased's estate in terms of a Will of the deceased dated 2 February 1996. There are another twelve defenders who are averred to be beneficiaries, or potential beneficiaries in the executry of the deceased. Only the fourth and ninth defenders have entered appearance in the action.
[2]It is not in dispute, in these proceedings, that the Will of 2 February 1996 (a copy of which is no. 7/1 of process) is a valid testamentary writing of the deceased. The action is principally concerned with seeking declarators that certain holograph writings of the deceased, which post-dated the 1996 Will, are valid and effective testamentary writings of the deceased. Declarator, however, in the first place, is sought that the deceased was domiciled in Scotland at the date of his death. There is a further conclusion seeking decree ordaining the first defender to distribute the estate of the deceased in implement of the 1996 Will, as amended, by the terms of the holograph writings referred to previously.
[3]By interlocutor dated 28 September 2001 the parties were allowed a preliminary proof, restricted to the question of what was the domicile of the deceased at the date of his death. The matter came before me for that purpose. The parties lodged a joint minute of admissions, No.16 of process, relating to various productions lodged in the case and which also contained an agreement that the deceased had maintained a bank account at the branch office of the Clydesdale Bank at 14 Boswell Street, Glasgow from before 1985 until the date of his death.
[4]It was a matter also of agreement between the parties that the deceased's domicile of origin was Scotland. The pursuers' position was that it remained his domicile at the date of his death. The defenders' position was that the deceased had acquired a domicile of choice in England which was his domicile at the date of his death. The defenders accepted that the onus was on them to prove that the deceased had lost his domicile of origin and had acquired a domicile of choice in England and that, accordingly, they should lead at the proof, which they did.
[5]The principal witness for the defenders was the fourth named defender, Mrs Carol Hughes. Mrs Hughes' grandmother, Anne Waugh, was married to the deceased on 27 August 1953. Anne Waugh had been previously married and had a daughter by that marriage, Mary Deans, who was the mother of Mrs Hughes. The relationship between Mrs Hughes and the deceased was, accordingly, that Mrs Hughes was the deceased's step-granddaughter.
[6]In Article 2 of condescendence it is averred that the deceased was born in Scotland of Scottish parents and that his domicile of origin was Scottish. It is averred that he retained that domicile throughout his life. The averments then continue as follows:
"He travelled extensively throughout the world during his working life as a marine engineer. He lived in Iran and in Australia. He retired to live in Scotland with his wife, Anne, in 1964. They lived together at 10 Pleasance Gardens, Falkirk, until about 1978 when they moved to live at 2 Brierley Road, Northbourne, Bournemouth, Dorset."
Apart from the averment that the deceased retained his domicile of origin throughout his life, none of this was disputed in the averments of the defenders. In examination-in-chief, Mrs Hughes was asked, somewhat cursorily, about the deceased's life and places of residence up until 1966. I expressed some concern about the way in which a very long period of the deceased's life was being covered in the evidence of this witness, only to be told by counsel for the defenders that it was a matter of agreement between the parties that the deceased had retained his domicile of origin until 1976. This was not a matter of admission in the pleadings, nor was it the subject of the joint minute of admissions which had been lodged prior to the commencement of the proof. It would not only have been helpful to the court, but appropriate for a joint minute of admissions to that effect to have been lodged before the commencement of the proof. In due course, the parties lodged a second joint minute of admissions, No.17 of process, in which it is stated that: "for the purposes of the present action only..... the parties have agreed .... that the deceased at no stage had abandoned his domicile of origin before July 1976."
[6]The evidence of Mrs Hughes, as to the deceased's life, prior to his return to Scotland in 1966, after having worked abroad, such as it was, was to the following effect.
[7]The deceased had, in his teenage years, gone to sea. He had become, in due course, a marine engineer and had travelled the world in that capacity. In due course he had become employed in the oil industry. He was ultimately employed by BP and lived for some years, when so employed, in Iran. He then moved to Australia where he continued to be employed by BP. The deceased had, apparently, met his wife at some time when he was back in Scotland and prior to 1953. His wife came from Falkirk, but when they married she joined him in Australia. She was accompanied to Australia by her daughter, Mary Deans and Mrs Deans' three children, who included the witness Mrs Hughes.
[8]The deceased had contracted emphysema during the latter part of his working life. On his retirement he returned to Falkirk with his wife in 1966. Mrs Riach's daughter, Mary Deans and her three children, had returned to Falkirk during the preceding year, 1965. Initially the deceased and his wife stayed with Mrs Deans and her children at a house which had been bought by Mrs Riach. The deceased and his wife then found another house in Falkirk, the address of which was 3 Glenbrae, Falkirk and they moved there. Mrs Deans and her children remained living at the other house. Mrs Hughes said in evidence that she and the rest of her family were in contact with the deceased and his wife on virtually a daily basis thereafter.
[9]After his return to Scotland, the deceased's emphysema, according to Mrs Hughes, deteriorated and he experienced increasing difficulty with breathing. The deceased and his wife spent a couple of holidays in Bournemouth in the early 1970s. According to Mrs Hughes the deceased enjoyed the climate there, which he thought was good for his health, and he said that it reminded him of Australia. Mrs Hughes, in evidence, said that the deceased decided that he would like to live in Bournemouth and he and his wife, eventually, found a house there which they liked and which they bought in joint names. The address of that house was 2 Brierley Road, Northbourne, Bournemouth. It was decided that Mrs Riach's daughter, Mary Deans and her daughter, Mrs Hughes, would move to Bournemouth to live with them. The family moved to Bournemouth in 1976. The other two children of Mrs Deans, two sons, were step-brothers of Mrs Hughes. One of Mrs Hughes' step-brothers, David Deans, the ninth defender in the present proceedings, had previously gone to live and work in London. The other step-brother of Mrs Hughes, Drew Deans, was already living in Bournemouth, having been posted there because of his work.
[10]Mrs Hughes, on a number of occasions, in evidence, stated that on the deceased moving to Bournemouth, he had said "that's it - I'm not making another move", or words to that effect. She also said that she heard him, on a number of occasions, during the years after moving to Bournemouth, and before he died, being asked "would you ever move back to Scotland?", and she said that he always replied in the negative to such enquiries.
[11]Mrs Hughes moved out of the house in Bournemouth in 1979 when she got married. Her mother, however, remained living there with the deceased and his wife. The deceased's wife, Mrs Anne Riach, died in 1987. The deceased purchased a grave at Bournemouth North Cemetery, which was capable of holding four caskets of remains. The deceased's wife was cremated and her remains buried in the grave. The deceased also purchased a memorial stone in the shape of a marble book which was placed at the grave. He instructed that on the left hand side of the book there should be sculpted the words "in loving memory of a beloved wife and mother Anne L W Riach, died 21st May 1987, rest in peace". Space was to be left on the memorial book for other inscriptions to be added in due course.
[12]After the death of the deceased's wife, Mrs Hughes and her mother looked after the deceased, although her mother had become increasingly handicapped due to arthritis. I am, however, satisfied from the evidence of Mrs Hughes and other witnesses that the deceased remained fairly active and healthy, for a man of his age, right up until shortly before his death and that there was no significant deterioration in his mental health. He continued to drive his own car until he was about 87. In evidence, Mrs Hughes said that her mother often sought to persuade the deceased to move to a smaller house in Bournemouth, but he refused to do so. Mrs Hughes' mother died in 1998. She was buried beside the deceased's wife in the grave which the deceased had bought. The deceased continued to live at the house at Brierley Court. Mrs Hughes continued to help to look after him. She said that he told her that he was not willing to move from his house and that he "wanted to be carried out of there".
[13]In the deceased's Will of 1996, to which I have previously referred, he stated that he wished "to be cremated and buried beside my wife" and that his name, together with the names of other members of his parents' family, should be added to the parents' family gravestone at Lynn Park Cemetery, Glasgow. In accordance with the deceased's expressed wishes, Mrs Hughes, on his death, arranged for him to be cremated and his remains buried in the grave beside those of his wife and her daughter Mary Deans. Mrs Hughes arranged for soil from Scotland to be brought down by a relative of the deceased to be placed on the grave. She also arranged for heather to be placed on the grave and for a piper to play at the deceased's funeral service. The funeral service was conducted by a retired Church of Scotland minister living in the Bournemouth area. Mrs Hughes explained that she made all these arrangements because the deceased had been proud of being Scottish and was always keen to emphasise his Scottish identity. She had arranged for the piper to play at the funeral because the deceased had, some years previously, said, while watching a TV programme which depicted a piper playing at a funeral, that that was a nice thing to have as part of a funeral service. Mrs Hughes explained that while the deceased had Scottish relatives with whom he kept in contact, he kept the two sides of his family completely apart, visiting his own relatives on his own. He seemed, for some reason, not to want his wife's family and his own relatives to meet and mix. Mrs Hughes maintained, in evidence, that after the move to Bournemouth in 1976, he only visited his relatives in Scotland once or twice. In the light of other evidence, I did not accept this part of Mrs Hughes' evidence as I am satisfied that the deceased visited Scotland more frequently than she suggested, after he moved to Bournemouth. He also kept in postal and telephonic correspondence with his relatives in Scotland. Mrs Hughes said that while the deceased retained a current account with the Clydesdale Bank in Glasgow he also operated a current account with a branch of H.S.B.C. Bank in England, which he used for the purpose of paying his household bills.
[14]In cross-examination, Mrs Hughes explained that her step-brother, Drew Deans, had moved to Bournemouth two years before the deceased and his wife moved there. Drew Deans worked for Barclays Bank. He had two young children. He moved with his family to live and work in Brussels, a few months after the deceased and his wife had moved into Bournemouth. While Mrs Riach was very close to her grandchildren and great-grandchildren, Mrs Hughes said that the fact that Mrs Riach's grandson and his children were living in Bournemouth was not a great factor in persuading the deceased and his wife to move there. Because of the nature of Drew Dean's work, they knew that he was unlikely to remain in Bournemouth for long. Mrs Hughes said that, in fact, her grandmother did not really want to move from Scotland. She had not been keen to go to live in Australia after her marriage to the deceased. Mrs Hughes maintained, in cross-examination, that the deceased had retained his solicitors in Glasgow because he was a man who did not like change. It was put to her that she had placed the notice of the deceased's death in the local Falkirk newspaper and she agreed that she had done so, but went on to say that she had done this also in respect of her grandmother and mother's death because she thought that persons living in Falkirk, who had known the family, would like to know of their deaths. The witness was adamant, in cross-examination, that when the deceased first moved to Bournemouth he said, on a number of occasions, that he was not making another move and that he repeated this subsequently. She said she never heard him, on any occasion, expressing a wish or intention to return to live in Scotland.
[15]The ninth named defender, David Deans, gave evidence. This witness had been brought up with the deceased, originally in Australia, and then in Scotland. At the time of the deceased's move to Bournemouth, Mr Deans was living in London. He could not recall hearing any discussion about the reason for the deceased's decision to move to Bournemouth but he knew that the deceased and his wife had spent a few holidays there and that the deceased preferred the climate in Bournemouth to that of Falkirk.
[16]This witness said that after the deceased and his wife, the witness's mother and his step-sister, Mrs Hughes, had moved to Bournemouth, he moved up from London to Scotland. For a time he managed a garage in Culross. He was provided with a house with that job. He intended to live permanently in Culross. He was, however, asked by his grandmother to look after the house owned by her in Falkirk, which had been occupied by his mother, himself, his brother and Mrs Hughes when they lived together as a family in Falkirk. He went back and forth from Culross to this address from time to time. The garage business, however, closed and Mr Deans then went to live in his grandmother's house in Falkirk. In 1985 Mr Deans himself moved to Bournemouth and the house in Falkirk was sold. Mr Deans has lived with his wife and children in Bournemouth ever since, having originally stayed with the deceased for about six months. After he moved to Bournemouth the witness, Mr Deans, visited the deceased regularly and he said, in evidence, that he never heard the deceased saying anything about wishing to return to live in Scotland. This witness did not consider that the deceased's move to Bournemouth had been motivated by the fact that his step-grandson, Drew Dean and his family, were at that time living in Bournemouth.
[17]The defenders led as their next witness, Mrs Mary McBeth, who is the niece of the deceased's wife, Anne Riach. Mrs McBeth originally came from the Falkirk area, but moved to England forty years ago. She kept in contact with her aunt and the deceased when they went to live in Australia and on their return to Scotland. Mrs McBeth said that the deceased did not take kindly to the Scottish weather after the heat of Australia. She was aware of the deceased and her aunt looking at places to live, both in the Isle of Man and in Jersey, during the early 1970s. She did not know whose decision it was to move to Bournemouth but, knowing the kind of couple they were, she thought it would be a joint decision of the deceased and his wife.
[18]After the deceased and his wife moved to Bournemouth, Mrs McBeth visited them and they visited her, at her home in Chester, quite frequently. After the death of the deceased's wife, however, the deceased no longer visited Mrs McBeth. He seemed also not particularly to want to have visitors. It has always been this witness's understanding that the deceased and his wife had moved permanently to Bournemouth. The deceased appeared quite happy living there.
[19]The final witness for the defenders was Mrs Margaret Waugh, who is also a niece of the deceased's wife, Anne Riach. She had known the deceased and his wife before they moved to Australia. They corresponded thereafter. When the deceased returned to live in Falkirk, the witness saw the deceased fairly frequently. She said, in evidence, that the Scottish climate did not suit the deceased, who always appeared to be suffering from bronchial problems. Her understanding was that the move to Bournemouth had been motivated by reason of the climate being better for the deceased. This witness had family living in Hampshire and she and the deceased and his wife would meet up from time to time in England. They kept up a correspondence both by letter and telephone. The deceased and his wife came up to Falkirk to attend the weddings of two members of this witness's family. Throughout her contact with the deceased, after his move to Bournemouth, this witness had never heard anything being said about him possibly returning to live in Scotland and she said that she never thought that he would return to live in Scotland.
[20]The first witness for the pursuers to give evidence was the first defender himself, Mr Alister MacInnes, a partner in the firm of McLeish Carsewell, Solicitors, Glasgow, who were the deceased's solicitors. Mr MacInnes explained that until 1993, another partner in the firm, had dealt with the deceased's affairs. That partner had died in 1993. The main business, which the firm dealt with, on the deceased's behalf, was the completion of his income tax returns. Mr MacInnes had never met the deceased. He obtained his instructions from the deceased by written correspondence. It was his recollection that he had drafted for the deceased a couple of Wills prior to the Will of 1996. Mr MacInnes had drafted the 1996 Will. This Will was designed to reflect certain changes the deceased wished to make to a previous Will. This witness was quite certain that there had been a number of previous Wills. In the 1996 Will there is a declaration by the deceased in the following terms: "My domicile is Scotland". Mr MacInnes said that he was satisfied that this declaration had appeared in previous Wills of the deceased, prepared by his firm. While the witness had never spoken to the deceased, he said that he formed the impression that the declaration was contained in the 1996 Will and its predecessors because the deceased "wanted to keep his Scottish connections".
[21]I then heard evidence from the fourth pursuer, Mrs Mary McCue, who is a niece of the deceased, her father being the deceased's brother. This witness gave evidence that while living in Scotland, the deceased frequently visited her parents, who lived in Glasgow. She said she learned of his move to Bournemouth in 1976, through her parents. She said initially in her evidence that there was no coming and going between her family and the deceased thereafter, while the deceased's wife was alive, although later on she did say that he would occasionally visit her parents in Scotland when he was on a trip to Scotland with his wife. After the death of the deceased's wife, Mrs McCue, who had a son living in Oxford, went to visit the deceased when she was in England, visiting her son. She said that the deceased had told her that he had moved to England to be with his wife's family. It was this witness who provided the soil and the heather which were laid on the deceased's grave and she said that she had done this at the request of Mrs Hughes. In cross-examination the witness said that the deceased seemed settled in England but that he missed Scotland badly. He got upset, for example, when she sent him postcards of Speyside where his parents had come from.
[22]The last witness was Mrs Ann Reddington, who was the daughter of the fourth named pursuer, Mrs McCue. She had met the deceased several times when he came to visit her grandparents in Scotland. He never raised the prospect of returning to live in Scotland when he spoke to her. From 1988 onwards, after the death of his brother, this witness's grandfather, he began to send cheques of £500, drawn on the Clydesdale Bank, Glasgow for the grandchildren of Mrs McCue. He also gave this witness money to enable her to buy a plot of land.
[23]I considered that all of the witnesses were doing their best to assist the court in this matter and were to be regarded as credible and, on the whole, reliable. It was clear, however, that Mrs Hughes was, by far, in the most constant and regular contact with the deceased, both over the period prior to his move to Bournemouth, when he was living in Australia and Scotland, and thereafter until his death. While, as I have already noted, I did not accept her evidence regarding the frequency of the deceased's visits back to Scotland after his move to Bournemouth, I could not detect any good reason for rejecting her evidence otherwise. In the event, the most significant aspect of that evidence, for present purposes, in my judgment, was the clear evidence she gave to the effect that, upon his move to Bournemouth, and thereafter, the deceased said that he had no intention of moving home again. Mrs Hughes gave this evidence in examination-in-chief and repeated it clearly, and without equivocation, in cross-examination. It is supported by the fact that none of the witnesses who had contact with the deceased from 1976 onwards, until his death, gave any evidence to the effect that they ever heard the deceased declaring any wish, far less intention, to return to live in Scotland. Moreover, counsel for the pursuers, in his submissions, advanced no reason why I should reject Mrs Hughes' evidence in that respect.
[24]As to the rest of the evidence, there are, in my judgment, two other highly significant factors. The first is that, after the death of his wife in 1987, the deceased did not return to live in Scotland. The second is that he declared in his 1996 Will that his remains were to be buried beside his wife's at the grave in Bournemouth which he had bought for this purpose on the death of his wife.
[25]While a good deal of the proof was taken up with the question of what the deceased's motive had been in moving to Bournemouth in 1976, I am not satisfied that, ultimately, in this case, much turns on that factor. The pursuers contended that the move was to enable the deceased's wife to be close to her family. The defenders maintained that it was the deceased's own decision and was motivated by his wish to live in a more temperate climate. I suspect that the choice of Bournemouth may well have been motivated by both considerations. The fact was that the deceased's wife had a grandson and great-grandchildren living in Bournemouth at the time, albeit temporarily, but I am also satisfied that the deceased and his wife wished to move somewhere with a more temperate climate. As Mrs Hughes said in evidence, the fact of the deceased's wife's grandson living in Bournemouth, when they moved initially, made the move more convenient than it might have been otherwise, but I do not consider that in the light of the evidence as a whole, this was the sole or even the major cause of the move to Bournemouth.
[26]In their submissions, counsel referred me to a number of authorities which set out the law to be applied when the court is considering whether or not a domicile of origin has been lost and a domicile of choice acquired. A relatively modern statement of the law, which I found helpful, is to be found in the decision of the Court of Appeal in the case of IRC v Bullock (1976) 3 All E.R. 353 at p.357, Buckley L.J., with whom Roskill L.J. and Scarman L.J. agreed, said:
"As long ago as 1865 Turnel L.J. said in Jopp v Wood that nothing was better settled with reference to the law of domicile than that the domicile can be changed only animo et facto; that is to say, by intention as well as action. The necessary act is that of taking up residence in some country other than the country of the domicile of origin. There is no dispute in the present case about the tax payer having taken up residence in England. What his intention was in doing so is a question of fact. What we have to determine is whether that intention was such as to clothe his residence in England with the necessary quality to result in his having adopted a domicile of choice in England."
At p.358 his Lordship continued:
"I must accordingly consider whether on the facts of this case it is shown that the tax payer had the intention of establishing a 'permanent home' in England within the meaning of that expression appropriate to the law of domicile. It is clear, in my judgment, that the intention does not have to be shown to have been immutable. It would be rarely that a man could be shown to have set up his home in a new country with the intention that his decision to live there and make his home there should be irrevocable. On the other hand, the intention must not be to make a home in the new country merely for a limited time or for some temporary or special purpose."
His Lordship was then, at p.359, to the following effect:
"....I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is under consideration believes that for reasons of health or otherwise he will have no opportunity to change his mind. In my judgment, the true test is whether he intends to make his home in the new country until the end of his days unless and until something happens to make him change his mind. Thus in Winans v Attorney General Lord Macnaghten, referring to what Lord Cairns had said in Bell v Kennedy, said that the question was whether the person whose domicile was in question had 'determined' to make, and had in fact made, the alleged domicile of choice, his home with the intention of establishing himself and his family there, and ending his days in that country."
From those passages I take it that, in applying the law to the present case, the question is whether, having regard to the evidence, it can be said that the deceased intended his home in Bournemouth to be his permanent home where, all other things being equal, he would end his days.
In Udny v Udny (1869) 7 M. (H.L.) 89 Lord Chelmsford at p.98 said:
"Time is always a material element in questions of domicil, and if there is nothing to counteract its effect it may be conclusive upon the subject. But in a competition between a domicil of origin and an alleged subsequently acquired domicil, there may be circumstances to show that however long a residence may have continued, no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not whether there is evidence of an intention to retain a domicil of origin, but whether it is proved that there was an intention to acquire another domicil. As already shewn, the domicil of origin remains until a new one is acquired animo et facto. Therefore a wish or desire expressed from time to time to return to the place of the first domicil, or any looking to it as the ultimate home, although wholly insufficient for the retention of the domicil, may yet amount to material evidence to rebut the presumption to acquire a new domicil arising from length of residence elsewhere."
In the same case Lord Westbury provided what counsel for the pursuers described as the classic definition of a domicile of choice when he said, at p.99:
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief of illness. And it must be residence fixed not for any defined period or particular purpose but general and indefinite in its future duration. It is true that residence, originally temporary, or intended only for a limited period, may afterwards become general and unlimited, and in such a case, so soon as the change of purpose of the animus manendi can be inferred, the fact of domicil is established."
Those passages from the speeches in the case of Udny demonstrate that even when the new residence was not originally acquired with a firm intention that it be permanent, it can, in due course, take on the necessary character of permanence and the duration of residence in question is a relevant factor to be taken into account in judging of permanence.
[27]Counsel for the pursuers stressed that the authorities were, however, all at one in making it clear that the loss of a domicile of origin was not something readily to be inferred. He relied, in particular, in this respect on the case of Liverpool Royal Infirmary v Ramsay 1930 S.C. (H.L.) 87. In that case the material circumstances were that a Scotsman, who was a bachelor, and who had been born in Glasgow, lived there for over forty five years and then went to Liverpool where he lived for nearly thirty seven years until his death. It was found that his sole objective in going to Liverpool was to be near other members of the family and that he remained in Liverpool after the death of the last surviving member of the family, apparently due simply to lethargy on his part and a disinclination to make any change. It was held, by the House of Lords, that, in these circumstances, his prolonged residence in England did not, in the absence of other evidence, prove an intention, on his part, to acquire an English domicile. In his speech, Lord MacMillan, at p.89 said:
"The acquisition of a domicile of choice is a legal inference which is drawn from the concurrence of evidence of the physical fact of residence with evidence of the mental fact of intention that such residence shall be permanent. So far as physical residence is concerned, the evidence of the present case is amply sufficient. The deceased left Scotland between thirty and forty years before his death and never again set foot on his native soil. During all these years, with the exception of a short visit to the United States and a holiday trip to the Isle of Man, he lived continuously in Liverpool where he ultimately died. But residence alone is not enough. The real question in the case is whether this prolonged residence in England was accompanied by an intention on the part of the deceased to choose England as his permanent home in preference to the country of his birth. The law requires evidence of volition to change. Prolonged actual residence is an important item of evidence of such volition, but it must be supplemented by other facts and circumstances indicative of intention. The residence must answer a qualitative as well as a quantitative test."
Counsel for the pursuers contended that the burden of proof on the defenders to establish that the deceased had lost his Scottish domicile of origin was a high one. While he accepted that it was the usual standard, in civil cases, of the balance of probabilities, rather than beyond reasonable doubt, the quality and extent of evidence necessary to discharge it, he submitted, had to be strong. In the case of Labacianskas v Labacianskas 1949 S.C. 280, Lord Keith, in giving the judgment of the First Division, at p.286, referred to a passage from Cheshire (Private International Law (3rd ed.) p.218) where it was stated as follows:
"There is a presumption in favour of the continuance of an existing domicile. Therefore, the burden of proving a change lies in all cases upon those who are alleging that the change has occurred. This presumption may have a decisive effect, for if the evidence is so conflicting that it is impossible to elicit with certainty what the resident's intention is, the court, being unable to reach a satisfactory conclusion one way or the other, will decide in favour of the existing domicile."
Lord Keith having referred to that passage went on to say: "That, in my opinion, is an accurate statement of law." In the case of Spence v Spence 1995 S.L.T. 335, Lord Cullen at p.336, under reference to Lord Keith's judgment in Labacianskas, said "clear proof of abandonment of a domicile of origin is required."
[28]Counsel for the pursuers, in arguing for the deceased's domicile of origin having remained, until the date of his death, relied heavily on the evidence of the declaration contained in the deceased's Will of 1996 that he was a domiciled Scotsman. As I have noted above, however, the deceased's solicitor, in giving his evidence, about this matter, said that the declaration would have been carried over from the deceased's previous Wills of which there were several. The firm of solicitors in question who prepared these Wills had been the deceased's solicitors for many years. As I understand it, they were the deceased's solicitors before he moved from Scotland in 1976. It was, therefore, not clear, on the evidence, since the contents of the previous Wills and the circumstances in which they were made, were not explored in any detail, whether or not the deceased's declaration that he was a domiciled Scotsman, had been made in a Will when he was living in Scotland and had simply be repeated, as changes were made in his testamentary intention, over the years. In any event, as counsel for the defenders submitted, while declarations of intention may be relevant, they are never, by themselves, conclusive. In Ross v Ross 1930 S.C. (H.L.) 1 Lord Buckmaster at p.6 said:
"Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the person to whom, the purpose for which, and the circumstances in which they are made, and they must further be fortified and carried into effect by conduct and action consistent with the declared intention."
[29]Having considered the evidence in this case, and the law which I perceive falls to be applied to the facts established by that evidence, I have reached the clear conclusion that, by the date of his death, the deceased had acquired a domicile of choice in England. The evidence, which I have accepted, as to his repeated remarks that his move to England was to be his last move, the length of his residence in England, the fact that he remained in England after his wife died and, lastly and perhaps, most tellingly, his directions, in his Will, that his remains should be buried in Bournemouth, taken together, in my judgment, establish that the deceased had made England his permanent home where he intended to end his days. The only potentially significant evidence, in my judgment, that the pursuer had retained his domicile of origin after 1976, was the declaration in the 1996 Will that he was a domiciled Scotsman, but I have already explained the difficulties about that evidence given that it appeared that it was a statement carried over from previous Wills, without, perhaps, any clear thought being given to its purpose and meaning and, in any event, for it to carry any weight, as was pointed out in the case of Ross v Ross, it would have to be supplemented by the evidence of conduct and action consistent with the statement. There is no evidence of such conduct and action in this case. The evidence led regarding the continued use by the deceased of a current account in a Glasgow bank and his continued use of Scottish solicitors was, in my judgment, simply consistent with a man of settled habits. Moreover, whatever the original motive was for the move to Bournemouth, in my judgment, by the time of his wife's death, the deceased had "settled" in England and planned to live there for the rest of his days. There is no doubt, in my judgment, having regard to the evidence, that the deceased remained proud of his Scottish birth until the date of his death and was keen to retain his Scottish identity but, as was said in McNeill v McNeill (1990) 2 S.L.T. 127 at 129, such sentiments are "not necessarily inconsistent, in the case of a man who has to make his way in the world, with an intention to transfer his lares et penates to another land". In my judgment, the facts which I have found established in this case prove, with the necessary degree of certainty, that at the date of his death and, indeed, some time before that, the deceased had the necessary intention to make England his permanent home. The defenders were, therefore, well founded in contending that by the date of his death, the deceased had acquired a domicile of choice in England. I will accordingly repel the pursuers' first plea-in-law and refuse to grant decree in terms of conclusion 1(a).