Morgan & Anor v Cilento & Ors [2004] EWHC 188 (Ch)

Case No HC02 C03074[2004] EWHC 188 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 th February 2004
Before
THE HONOURABLE MR JUSTICE LEWISON
Between
LEON RHYS MORGAN as Attorney of SIR PETER SHAFFERClaimant
Michael Templeman (instructed by Davenport Lyons) for ClaimantMartin O’Dwyer (instructed by David Du Pre & Co) for First DefendantAlexandra Mason (instructed by Bircham Dyson Bell) for Second, Third, Fourth DefendantsJonathan Crystal (instructed by Elizabeth Muirhead) for Fifth DefendantHearing Hearing dates : 26 th, 27 th, 28 th, 29 th, 30 th January 2004
Judgment

Introduction

[1]Mr Anthony Shaffer, the well-known playwright, was born in Liverpool on 15 May 1926. It is common ground that his domicile of origin was in England and Wales. He died, aged 75, in London, on 6 November 2001. What I have to decide is where he was domiciled at the date of his death. There are two possibilities. Either he was domiciled in England and Wales; or he was domiciled in Queensland, Australia. If he was domiciled in England and Wales, then at least two consequences follow. First, his estate will be liable to pay inheritance tax on all his assets. Second, his estate will be vulnerable to claims under the Inheritance (Provision for Family and Dependents) Act 1975. On the other hand, if he died domiciled in Queensland, the estate’s tax liability will be much smaller, because Queensland does not levy inheritance tax; and no claim under the 1975 Act may be brought.[2]Mr Shaffer’s twin brother, Sir Peter Shaffer was the executor named in the will. He takes a neutral view on this question. Mr Shaffer’s widow, Ms Diane Cilento; his former wife, Ms Carolyn Shaffer; and his two daughters, Ms Claudia Shaffer and Ms Cressida Shaffer, all contend that Mr Shaffer died domiciled in Queensland. However, Ms Marie Josette Capece Minutolo, who had a relationship with Mr Shaffer during the last years of his life, contends that he died domiciled in England and Wales. She says that Mr Shaffer never lost his domicile of origin in England and Wales. In the alternative she says that if Mr Shaffer acquired a domicile of choice in Queensland, he abandoned it before he died and his domicile of origin revived.[3]In Re Flynn [1968] 1 W.L.R. 103 Megarry J said:
"In one sense there is no end to the evidence that may be adduced; for the whole of a man's life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man's mind may be as much a fact as the state of his digestion, but, as Harman L.J. is reputed to have observed, "the doctors know precious little about the one and the judges know nothing about the other.""
[4]I heard a lot of evidence, and witnessed a good deal of emotion in giving it. Much of it concerned Anthony’s relationships with his widow, Diane Cilento, and with Marie Josette Capece Minutolo. I do not propose to go into this evidence further than is necessary for me to make my decision. I also heard evidence about Mr Shaffer’s financial affairs and about his personality and his attitudes. This does have a bearing on the issues I have to decide, but it does not fit neatly into a chronological framework. So I will tell the story, and then consider this body of evidence under different topic headings.[5]In the last year of his life, Mr Shaffer was working on a memoir, which was published on the day he died. It is called "So What do You Expect?". Mr Shaffer made it clear that the book was a memoir and not an autobiography. The book opens with a quotation from Gore Vidal:
"A memoir is how one remembers one’s own life, while an autobiography is history, requiring research, dates, facts double-checked."
[6]The parties invited me to read it, which I did. I have not taken it as evidence of historical facts, but it has helped me in forming a view about Mr Shaffer’s state of mind during its composition.[7]I hope that the parties will not think me disrespectful if I henceforth refer to them by their given names. The law[8]I must first set out the legal framework that I must apply. The leading case is Udny v. Udny (1869) 1 L.R. Sc & Div. 441. Lord Westbury said at 458:
"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 an intention of continuing to reside there for an unlimited time. 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 from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established."
[9]Thus the two components necessary to establish a domicile of choice are(1) voluntary residence as an inhabitant rather than as a casual visitor; and(2) an intention to remain indefinitely.[10]In I.R.C. v. Bullock [1976] 1 W.L.R. 1178 Buckley L.J explained the nature of the intention required. He said:
"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."
[11]I should also add that it is possible for a person to have two homes, each in a different territory. In that event, the relevant inquiry is which of the residences is the chief residence.[12]The courts have considered many different facts to bear on the question of domicile. Most of these are relevant to the inference of the necessary intention. The decided cases record findings on the length of residence in a particular territory; whether a person has married a native of the territory; whether a person has bought or built a house; whether a person has acquired a business; where a person keeps his personal possessions and papers; the form and contents of a person’s will; whether a person exercises the right to vote; whether a person has changed nationality or name; even the membership of clubs: see Dicey and Morris on The Conflict of Laws (13th ed.) para 6-049.[13]If a person has acquired a domicile of choice, that domicile may be lost. What is it necessary to prove in order to show that he has lost it? In Udny v. Udny Lord Hatherley L.C. said:
"It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicile, then the exact converse of such a procedure, viz., the intention to abandon the new domicile, and an actual abandonment of it, ought to be equally effective to destroy the new domicile. That which may be acquired may surely be abandoned, and though a man cannot, for civil reasons, be left without a domicile, no such difficulty arises if it be simply held that the original domicile revives."
[14]In Re Flynn Megarry J took this as establishing the true principle. He continued:
"Acquisition and abandonment are correlatives; in Lord Westbury's words, "
Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner." When animus and factum are each no more, domicile perishes also; for there is nothing to sustain it. If a man has already departed from the country, his domicile of choice there will continue so long as he has the necessary animus. When he no longer has this, in my judgment his domicile of choice is at an end, for it has been abandoned; and this is so even if his intention of returning has merely withered away and he has not formed any positive intention never to return to live in the country. In short, the death of the old intention suffices, without the birth of any new intention. In this way abandonment dovetails in with acquisition. It follows that in my view the true rule is correctly stated in Dicey and Morris on The Conflict of Laws, 8th ed. (1967), rule 10 (1). In considering the evidence of abandonment I bear in mind the words of Wynn-Parry J. in In re Evans. In order to establish the abandonment of a domicile of choice, he said, "it is essential to demonstrate that abandonment by unequivocal intention and act." Many acts and declarations are indeed equivocal; and evidence which establishes that a man was or might have been in two minds does not show an unequivocal intention. I also have to bear in mind the standard of proof required; it is not questioned that the burden of proof lies upon those who assert that a change of domicile has taken place. In In the Estate of Fuld, decd. (No. 3), which I have already cited, Scarman J. had to consider the abandonment of a domicile established by a domicile of origin; and he rejected any requirement of proof beyond reasonable doubt. The standard of proof is, I think, the civil standard of a balance of probabilities, subject to the overriding consideration (which I borrow from his judgment)that so serious a matter as the acquisition of a domicile of choice (or for that matter, I think, the abandonment of a domicile) is "not to be lightly inferred from slight indications or casual words"."[15]I conclude from this that it must be shown that(1) the propositus has ceased to reside in the territory in which he had a domicile of choice and that(2) the propositus has no intention to return to reside there (as opposed to an intention not to return). The absence of intention must be unequivocal, so that a person is in two minds does not have the necessary absence of intention. In addition, the abandonment of a domicile of choice is not to be lightly inferred. The story[16]Anthony and Carolyn Shaffer married on 17 December 1961. Their first daughter, Claudia, was born on 25 June 1963 and their second daughter, Cressida, was born on 5 June 1966. By that time Anthony was turning towards the theatre as a full time career, having previously been a barrister and a copywriter. In the autumn of 1968 he began work on his best known play, "Sleuth", which opened in London in February 1970. A run on Broadway soon followed, and Anthony, his wife and family, all accompanied him to New York where they lived for six months periods in the early 1970s. In 1972 Anthony was working on a film called "The Wicker Man", which subsequently achieved cult status. It was being filmed in Scotland. Diane had a part in the film and it was during the filming that Anthony and Diane formed a passionate relationship.[17]Diane was born in Australia and remains an Australian citizen. She has also acquired British nationality. In 1972 she was living at Scot’s Farm in Wiltshire, with her son Jason. Her relationship with Anthony did not, at that stage, involve their living together continuously, since Anthony divided his time between the USA, Diane’s home in Wiltshire, and Carolyn’s base in England. However, in 1975 Diane decided to return to Australia. Within a few weeks, Anthony followed her to Australia. He said that he wanted their relationship to be permanent, and moved in to her accommodation. In June 1975 Diane appeared in a commercial. Her net fee for that commercial enabled her to buy 200 acres in tropical Queensland, which she named "Karnak". In September 1975 Anthony wrote to Carolyn, who was in India, and told her that he had moved to Australia. Carolyn said in her witness statement:
"I gradually came to accept that his passion for Diane and for all that Australia represented, such as its landscape, its climate, its challenges in terms of the world of theatre had overtaken his life and left him with no option but to embrace this passion. I knew that he still loved me and that he was devoted to his daughters, but I appreciated that he had found his future in Australia."
[18]However, Diane and Anthony commuted between Scot’s Farm and Karnak until 1981. Anthony was a man who liked travelling. His writing career, and in particular his career as a scriptwriter for films, took him all over the world. Many of the witnesses described him as "peripatetic". I was shown records of his entries into and exits from Australia in later years; but it is important to remember that when Anthony was out of Australia, he was not necessarily in England. Until the mid-1990s he spent the majority of the year in Australia.[19]In 1977 Diane set up a school at Karnak. The school was a school for self-development, and the students lived at Karnak. Anthony was involved in that venture. Among other things, he lectured on a number of literary subjects. At about this time he sold a family holiday house in Somerset and used the proceeds in developing the property at Karnak. In 1979 he bought a restaurant in Port Douglas, Australia. It was called the Nautilus. During that year considerable building work was carried out on the Nautilus, much of it by Anthony personally. By about 1980, as Claudia put it in her witness statement:
"It gradually became the case that my Father lived in Australia and only visited London, rather than the other way round."
[20]In 1981 Anthony underwent surgery which unfortunately led to his losing the sight of one eye, and his sense of smell. From then on, he was dependent on medication for the rest of his life. The operation was carried out in London; and following the operation, he recuperated at the family home in Tregunter Road, where Carolyn was still living. However, when he was well enough he went back to Karnak.[21]In 1982 Diane sold Scot’s Farm and decided to concentrate on developing Karnak. That same year, the government of Queensland abolished death duties. Not surprisingly, many people moved there, and Anthony’s restaurant in Port Douglas soared in value. Anthony knew about the abolition of death duties; as he subsequently told his accountant, Mr Bill Morgan, that that was one of the reasons why he deliberately relocated to Queensland. In 1983 Carolyn and Anthony were finally divorced, and the house in Tregunter Road was sold. With his share of the proceeds, Anthony bought a studio at 6 Scarsdale Studios, Stratford Road, in London, and also contributed towards the further development of Karnak. Carolyn bought an adjoining studio out of her share of the proceeds.[22]Anthony and Diane were married at Karnak on 22 June 1985. As a wedding gift, Diane transferred 50 acres, which had some development potential, into their joint names. In the same year they began to build their matrimonial home at Karnak, which they called "The Castle". One of the features of "The Castle" was a large study where Anthony wrote. It contains a library for some 18,000 books, most of them Anthony’s. Anthony designed the study and commissioned stained glass windows representing the nine muses. The walls were decorated with posters of past productions of Anthony’s plays, but pride of place was given to a large painting by the Australian painter, Arthur Boyd, of which Anthony was very fond. In 1985 Anthony sold the studio at Scarsdale Studios. Several witnesses described "the Castle" as Anthony’s "dream home".[23]Anthony’s financial affairs were conducted by Mr Brian Jenks of Touche Ross. On 5 February 1986 he wrote to Mr Davies, the manager at Barclays Bank in Tottenham Court Road. In his letter he said:
"I would like to bring you up to date on Tony Shaffer’s affairs. Tony left England last March to take up permanent residence in Australia. He has since married and he now lives with his wife at Karnak, PO Box 167, Mossman, NQ 4873, Australia. Tony is now engaged in disposing of his remaining UK assets. However, he does recognise that he will from time to time visit England and indeed he hopes to be putting on a play in London later this summer. The property 6 Scarsdale Studios has been sold and the Barclays Bank mortgage has been paid off. The other property, 53a High Street, Kings Lynn is in the course of being sold for £280,000. Completion of that sale is expected before the end of March. A significant amount of the proceeds will be needed to pay outstanding tax bills but there will nonetheless be a significant surplus which will eventually be remitted to Tony in Australia. Although Tony will not want to have a place of residence available to him here in the UK there will be occasions when he will wish to stay in one of the properties owned by the Shaffer family companies – property companies in which Tony’s father, mother and brothers are shareholders. Tony has arranged to provide a sum of up to £25,000 to one of these companies – I think the name is Tartan Trust Ltd – so that the company can refurbish one of its houses in Earls Terrace, London W8 to make it comfortable for Tony’s occasional visits."
[24]At some stage (I am not sure when but before October 1987) Anthony set up a company called Denouement Ltd. It was managed by an American financial consultant in California. It seems to have been the recipient of Anthony’s income from writing and royalties; although there is doubt about whether the company received them by virtue of a legal entitlement, or simply at Anthony’s direction. Anthony subsequently fell out with his American financial adviser, and Denouement’s place of residence was transferred to Australia, where it was reincorporated as Denouement Pty Ltd in September 1994.[25]By 1988 Anthony’s financial affairs were being looked after by Touche Ross in Australia as well as Touche Ross in London. In his tax return for 1987-88 (submitted to the Inland Revenue in England) Anthony stated that he was ordinarily resident in Australia, and that he had no accommodation for his use in the United Kingdom. By September 1988 Mr Jenks was able to advise him that he could close down Anthony’s United Kingdom tax files.[26]By 1989 Anthony was voting in Australian elections. Diane told me that he voted whenever he could, and reminded me that voting in Australia is compulsory. Diane’s mother died in 1989 and left her some money which she asked to be used for a work of public importance. One of Anthony’s dissatisfactions with Queensland was its lack of theatrical life. So Diane suggested that they build a theatre at Karnak. After lengthy negotiations with the local authority, Anthony and Diane obtained permission to build the theatre. It was built and it opened in August 1992 as the Karnak Playhouse. From then on, until the end of his life, Anthony was heavily involved with the Karnak Playhouse. In 1991 he sold the Nautilus Restaurant to devote more of his time to the Karnak Playhouse.[27]In 1994 or early 1995 the family company sold the property at Earls Court Terrace which had been made available to Anthony on his visits to London. Accordingly, in March 1995 Denouement Pty Ltd acquired a long lease of the Studio at 3 Sydney Close London SW3. Claudia said in her witness statement that it was bought "with the intention of it being a London base for my sister Cressida and I and somewhere for him to stay on his periodic visits." The Studio consists of a large living room on the first floor and a small bedroom and bathroom on the ground floor. I was shown a photograph of the living room. It appears from the photograph to have been fully furnished. There are many books in the room, and some of the awards that Anthony won for his dramatic work, including a "Tony" award for Sleuth.[28]In 1995 Diane and Anthony began work on a laser show called "Creation" consisting of dreamtime stories narrated by Aborigine children and illustrated by laser images. They also created a CD of the show, in which Anthony participated as narrator. "Creation" opened at the Karnak Playhouse in 1996. However, on the first night of the production Anthony fell down a flight of steps and hit his head. He was examined at the local hospital at Mossman in Queensland. At first it was thought that he had sustained no serious injury, but for some time afterwards he had trouble in lifting his right arm. In February 1997 he had scans at a hospital in Cairns.[29]In March 1997 Cressida was taken ill and admitted to hospital in a coma. Anthony flew to London to be with her. In July 1997 Anthony and Diane took a trip to New Mexico which lasted for about a month. Later that summer Anthony consulted a surgeon in London about his neck. He was advised to have an operation on his spine, which took place in September 1997. Diane had returned to Karnak.[30]On 3 September 1997 Anthony completed a questionnaire for the Australian Taxation Office. Since the immigration records do not record him as having entered Australia between March 1997 and March 1998, I infer that he completed the form while out of Australia. This is confirmed by one of his answers to the questions. The rubric at the end of the form stated that the Tax Administration Act 1953 provided for heavy penalties for persons found guilty of making false or misleading statements. Among the questions and answers (the answers in italics) were:
"What is the purpose of your visit to Australia? Permanent residence How long do you expect to stay in Australia? Indefinitely When do you expect to leave Australia? Already abroad Have you maintained a home in your country of origin? My service company Denouement Ltd rents a studio If you do not intend to sell the home, why are you keeping the home? Occasional work Have you returned to your country of origin while staying in Australia? Yes If yes, How often have you returned? A dozen or so times in 20 years How long did you remain each time? 3 weeks approx For what purpose did you return each time? Visiting family For what reasons did you state that you were a resident of Australia in your 199- Income Tax Return? Because I am one"
[31]Following the operation in September 1997 Anthony was immobilised for several months. He stayed in the Studio, where he was tended by Carolyn, his two daughters and nurses. At Christmas time an old friend, Christopher Logan, was engaged to look after him. At about the same time Claudia telephoned Diane in Australia. She was very worried about her father and thought that he had lost the will to live. Diane flew to London in January 1998. After a short time Diane decided to take Anthony back to Karnak to convalesce. However, his health would not stand a non-stop journey to Australia. So Diane and Anthony flew to Sri Lanka in early February. They stayed for a few weeks and arrived back in Australia on 3 March. He remained in Australia until 30 May. In June he returned to London for a further medical assessment and for dental treatment. Diane remained at Karnak.[32]In July 1998 Anthony met Jo. She was then living in Rome; but had come to see him at the Studio in London to get advice about a screenplay she was working on. Within a short time, they began a sexual relationship. However, the existence of this relationship was kept secret from Anthony’s family, including not only his wife Diane, but his former wife Carolyn, his two daughters and his brother Sir Peter.[33]For the purposes of giving evidence Jo prepared a chronology from her diaries, which have since unfortunately been stolen. According to the chronology, Anthony was in Rome between 31 October and 2 November.[34]Diane and Anthony spent Christmas apart, but met in Jamaica on Boxing Day 1998. After New Year they travelled to Cuba where they stayed for some time. Diane returned to Karnak and Anthony returned to London.[35]Jo told me that on 14 February 1999, in the course of a five day holiday in Ireland, Anthony proposed marriage to her. Shortly afterwards he gave her an engagement ring. Between 11 and 15 March Anthony was in Rome, and between 17 and 20 April he was in Scotland. Between 21 and 25 May, and again between 26 June and 1 July he was in Italy. On 22 July Anthony returned to Karnak. It was at about this time that he bought a car to be kept at Karnak in order for him to be driven around.[36]On 26 August 1999 Anthony consulted an Australian lawyer, Mr Mark Johnston, about making a will. Mr Johnston practises in Cairns, Queensland. Mr Johnston noted that Anthony was an Australian resident who lived in England some of the time. A will was drawn up on Anthony’s instructions and he executed it on 29 September 1999. He made a number of bequests to his wife Diane, his former wife Carolyn, his two daughters Claudia and Cressida and his two brothers, Peter and Brian, and left the residue of his estate to Diane. All the chattels that he specifically mentioned in the will were at Karnak. He left nothing to Jo and does not appear to have mentioned her to Mr Johnston; although he did mention another female friend. Mr Johnston said in his witness statement that from speaking to Anthony and taking the necessary instructions for the preparation of the will he formed the "clear view" that Anthony’s domicile was in Queensland. On the same day Anthony left Australia for Los Angeles where he and Jo spent some days. They then went to Rome on 12 October. After some days Anthony returned to London.[37]In January 2000 Diane came to London and she and Anthony travelled to Scotland. In the following month they set off for a trip to Morocco. But it was cut short on 14 February 2000, when Anthony learned that his mother had died suddenly. Diane and Anthony returned to London. However, Anthony was too ill to attend the funeral, which had to be postponed. The funeral took place in late February 2000 and the traditional shiva was held at the Studio.[38]Diane left for Karnak at the beginning of March 2000, in order to prepare for the summer season at the theatre. On 4 March Anthony went to Rome. He stayed until 13 March.[39]Anthony was working on the script of a new play called "The Thing in the Wheelchair" whose premiere was to be at Karnak. In October 2000 Anthony arrived at Karnak to discuss the future of the play. In November 2000 Anthony travelled from Cairns to Japan, Toronto and New York. His ticket was a return ticket which took him back to Cairns on 6 December: an absence from Australia of some 17 days, none of which was spent in England. He spent Christmas and New Year in Karnak. Cressida travelled to Karnak from London on 18 December for Christmas, and was scheduled to return on 10 January 2001. Jo said that she was expecting Anthony to return to London to spend New Year with her, but that he was delayed by Cressida’s unexpected illness. However, this is contradicted not only by Cressida’s itinerary but also by a contemporaneous letter from Mr Logan to Anthony. I find that Anthony intended to remain at Karnak over New Year. During Cressida’s stay at Karnak Anthony raised with her, as he had on previous visits, the possibility of her coming to live permanently in Australia. Anthony arrived back in London on 16 January.[40]Anthony went back to Karnak in March 2001 to start rehearsals for "The Thing in the Wheelchair". On 7 April, while he was still there, Jo wrote him an affectionate letter. I quote a few sentences:
"So what is it like to be back in Australia? Back at Karnak … back with Diane as your full-time wife? What is it like? What are you thinking? What will you do? Oh, so many things. If I were not living as your partner in England I would question much more but I am so filled with understanding for you and yet wonder, no not wonder – know- Darling is this investment in the play truly best for you? Think about it for yourself. Don’t go overboard with guilt with Diane. Basta and enough already! You will ultimately do what you want and I talk to myself. Maybe you want to re-test yourself in those hidden anonymous waters, North Queensland, hiding where no one will see you that would JUDGE your (illegible) rightly. Stop hiding and come home. … Is your soul at Karnak? This is a big question only you can answer. If it is, and if Diane holds this strange "
Svengali" hold over you – tell me. Would you want to be there more often? … If you do not feel your soul is there & if the excitement of the place has waned with time consider an alternative where you can all be happy."[41]The Thing in the Wheelchair opened on 18 May 2001 to critical acclaim. It ran until 27 May; and Anthony returned to London on 7 June.[42]In August 2001 Diane travelled to London. She stayed with Anthony at the Studio between 10 and 16 August, and then travelled on to Scotland to visit her son. She told me that Anthony asked to accompany her, but she declined on the ground that her son’s house was small and had a steep staircase which Anthony would not be able to manage. Towards the end of August Diane returned to London. A day or two earlier than expected she called at the Studio. Anthony let her in after some hesitation. On her entry she saw that there were items of clothing and cosmetics belonging to another woman. She was distressed and angry and left with her son. The items in question belonged to Jo.[43]Diane consulted English solicitors immediately before her scheduled return to Australia on 30 August. Anthony consulted Mr Burrell of Davenport Lyons on 10 September. Following an interview, Mr Burrell dictated an attendance note. I quote some passages which are relevant to the questions I have to decide:
"When he married he removed himself to Australia and has lived there for many years. They are in Northern Queensland. His association with Australia is substantial, he having deliberately acquired tax residency there. … Anthony is resident in Australia for tax purposes. We discussed what his domicile is. It appears that his domicile of origin was definitely in the United Kingdom. It was unclear whether or not he had acquired a domicile of choice in Australia as well as residency for tax. It may be that he had. In that event then the ability to determine the applicable jurisdiction could be down to him. That is to say that he may not yet have given up any domicile of choice in Australia although he probably could do so relatively easily and thereby find himself once again with his domicile of origin in England. Anthony has for a long time found the life in Australia bleak in terms of culture. He complained to Diane that there is no cultural stimulation that they are able to enjoy and in particular no theatre. Her creative response was that they should therefore build a theatre. That is exactly what has been done. … At around the time of his acquisition of the Studio apartment he decided to install Mary Jo in a separate apartment which he paid for in Noting Hill Gate. More recently when he was away he allowed her to move into the Studio which she has done with enthusiasm having installed her clothes and personal belongings and making her presence very obvious. Anthony left Australia in [May] 2001. … He told Diane that he simply could not continue in such a cultural wilderness and came to England. … Several months ago … [Diane] decided to come and visit. … Before she arrived Anthony told Mary Jo to disappear which she did. Diane came and then departed for Scotland. Anthony invited Mary Jo back to the apartment. Unfortunately without prior notice or invitation Diane suddenly arrived at the apartment. Fortunately Mary Jo was away visiting family in France. However the fact that she was in the apartment was more than obvious from her belongings being there and her presence was undeniable. Diane suggested that they should talk about the situation to which he agreed. … He told her that she had discovered what she had and that they would do well to consider how best to deal with the position. They have done certain work together and there could be an advantage to both of them in continuing to co-operate on projects in the future. Perhaps there should be a period of separation and reflection. The theatre at [Karnak] they agreed is now a success and given the fact that it is on land which is probably jointly owned in some way it is to their mutual advantage to keep that project alive and ongoing. She agreed to the wisdom of this analysis and said that she would seek to do so."
[44]On 14 September Anthony and Jo left for a holiday in Ireland. On 17 September Anthony suffered violent stomach pains and was admitted to the Mercy Hospital in Cork. The hospital filled out an admission form, which stated that the information had been obtained from "patient and partner". The latter was a reference to Jo. Under the heading "Social history" the form stated:
"Lives with partner Jo Capece"
. Jo remained with Anthony in Ireland while he remained in hospital. Although members of his family telephoned from time to time, none of them came to Ireland. Anthony left hospital on 28 September and returned to London, with Jo, on 4 October.[45]A few days later Anthony initiated an inquiry about a pension plan which had just matured, asking for an illustration of the possible benefits. The inquiry related to benefits on a joint life/survivor basis "with wife born on 1 May 1941". That date is very close to Jo’s birth date.[46]On 11 October Anthony went to see Mr Burrell again. Mr Burrell gave him a copy of a draft letter to Diane’s solicitors. It is clear from a later version of the letter, annotated in Anthony’s hand, that he read and approved it (subject to his manuscript amendments).[47]Part of the discussions between Anthony and Diane concerned finances. On about 12 October Diane faxed from Karnak a list of anticipated expenses. The text of the fax said: ""I think you’re all mad living in that terrorist trap of London … but that’s your choice so you stick to it."[48]On 16 October Anthony went to see Mr Burrell again. They discussed the draft letter and Anthony’s amendments to it. Mr Burrell’s attendance note records:
"We discussed what the position should be with Mary Jo and the fact that she has written to him seeking some kind of commitment or her future position. I repeated to him that it seems to me that he must come to a view as to what he wants her current and indeed future position to be and that only when he has first decided upon that and indeed when he knows from her what it is that she is prepared to give, is it realistic to try to measure what he might have to provide. I reminded him that his position with Diane remains unresolved and he is not keen to precipitate anything which would mean that that is taken forward more quickly."
[49]On the following day Mr Burrell sent the letter (as approved by Anthony) to Diane’s solicitors. The letter said:
"… I can tell you that Anthony has no particular wish to see the marriage brought formally to an end. He is not in the first blush of youth and he has no desire or intention to remarry. He does acknowledge that the substance of the marriage relationship ceased to exist several years ago. If Diane is keen for reasons of her own to see the marriage formally dissolved then Anthony will not seek to stand in the way of that. However, he suggests if that is her wish that arrangements be made for that to happen in as anodyne and uncontroversial way as possible. I do not know whether Diane considers that there needs to be some financial adjustment made in respect of financial matters. I say that because the assumption on Anthony’s side is that he will continue to live at the small studio flat in Kensington and that Diane will continue to live on the extensive property in Northern Queensland. This will include her continuing to have the use and running of the theatre which he largely financed and built. That theatre at Karnak has now become an established commercial success and it is assumed that Diane will now maintain this and the positive income flow from it. … [D]espite the complete erosion in the substance of the marriage as a personal relationship it is the case that our clients have succeeded in continuing to co-operate in relation to various business projects. It is Anthony’s hope and wish that a way will be able to be found for that arrangement to continue into the future."
[50]A few days later Anthony consulted Mr Walker, a financial consultant.[51]Ms Osborne, Diane’s solicitor, replied to Mr Burrell’s letter on 26 October. Her letter said that Diane did not wish to put pressure on Anthony to make long-term decisions in view of his health. It continued:
"Diane has told me that in August she discovered that Anthony had formed an affectionate relationship with another woman, who resides in London. Diane does not know how important that relationship is to Anthony; I note from your letter that he has no wish to remarry. However, Diane feels very uncomfortable at the idea of Anthony having a new partner in London whilst Diane and Anthony continue to be husband and wife. She feels that it is an undignified situation. In any event she shares Anthony’s view that the substance of the relationship between herself and Anthony as husband and wife changed some time ago, and she would like to recognise this change in their status officially, as she feels this would be the most honest basis for a future working relationship between them. Diane has no emotional objection to a divorce."
[52]On 5 November Anthony filled out a questionnaire for the purpose of registering with an NHS doctor. He gave his address as the Studio and his previous address as Karnak. In answer to the question "Do you live in the UK?" he answered:
"1/2 each year" and he described the purpose of his stay as "business"
. In answer to the question "If you are from Abroad: Place of Birth" he answered: "Britain & British Citizen".[53]Anthony had been due to go back into hospital for an operation on 5 December. Unfortunately, on 6 November, he collapsed and died. He was in the Studio with Jo at the time. Jo has remained living at the Studio ever since.[54]On 6 December 2001 Mr Morgan, Sir Peter’s attorney, accompanied by Ms Feldman, went to see Jo at the Studio. Ms Feldman made a note. The relevant parts of the note read:
"Jo said that Tony could not go back to Australia because of his health. He was thinking of other locations where he would be happier with the weather. … Jo said that she thought Tony had taken up residence in Australia to avoid UK taxes … he wanted to prove residency in Australia. Jo said that she had details of the time he spent away from Australia and said he was not happy in Australia and wanted to get out of Australia."
Anthony’s own informal statements[55]All the parties invited me to look at what Anthony himself said about his home. I have already referred to some of the more official declarations that Anthony made. But there were less formal expressions too. On his trip to Scotland in May 1999 he gave an interview which was published in the local newspaper. He is quoted as having said:
"[Diane] lives in Australia a lot of the time, as do I, but I’m working over here now more at the moment and I’ll be going back in the not [too] distant future."
[56]In his Memoir, written in 2001, he included a chapter about Karnak. He wrote:
"Occasionally the lack of water would be compensated for by the visit of a cyclone. Even as I write one has inflicted dreadful damage on our magically landscaped home."
[57]The chapter concluded:
"I would still be there full-time if only the mental stimulation had equalled the fierce energy and probing skills of the alternating "footie" and cricket that also marked the seasons of the year. But alas, it was not to be. Return to England became inevitable, at least for longer periods of the year. Once again, I had perhaps expected too much of my new way of life."
Anthony and Australia[58]Anthony’s first trips to Australia were made on a temporary visa. In March 1985 he obtained a visa entitling him to stay indefinitely. That visa was valid until 1986. It was periodically renewed; the last renewal being on 11 June 1999 and valid until 23 October 2002.[59]However, Anthony never applied for Australian citizenship. Diane said that the reason was that he was put off by the "pomp and circumstance", and this was not challenged.[60]Anthony’s bank accounts were with Australian banks, and his credit card was also Australian. As I have mentioned he paid tax in Australia, and his company was registered in Australia. He did, however, have the use of a London bank account, which was a client account maintained by his literary agents in London.[61]I am satisfied that Anthony had many friends in Australia, both local and in the theatrical world, as well as those who came to Karnak as students or visitors. When in 2002 Diane organised a "Tribute to Tony" at the Karnak Playhouse, 300 people attended, and many of them put affectionate printed tributes to Anthony in the brochure.[62]There were many aspects of Australia that Anthony loved. He loved its landscapes, its vegetation and its "bigness". The "bigness" that Anthony loved was not just the physical size of the country, but what he saw as the big-heartedness of its people.[63]However, I am equally satisfied that Australia did not fulfil all Anthony’s cultural needs. He was clearly imbued with a love of the theatre, and although the building of the Karnak Playhouse may have been a playwright’s dream come true, it was not enough. He needed the cultural stimulation of a big city and London in particular. Anthony and Karnak[64]Anthony clearly had a great affection for Karnak. It was the place that he was the most creative. Almost all his personal possessions (including posters of productions of his plays, presentation copies of first night scripts, and thousands of books) were shipped out there and remained there until his death.[65]In his Memoir he spoke of his great joy in constructing the theatre. He said:
"Things have improved quite dramatically recently, with the latest play The Thing in the Wheelchair (May 2001) directed quite electrically by my wife, Diane, with enough spirited fun to take the curse off the grim storyline."
[66]Sir Peter recalled Anthony telling him about The Thing in the Wheelchair. In his unchallenged written evidence he said:
"I also remember … how many times in his description of this triumph he used the word "home". "
My home" – "it’s all home grown" etc."[67]He concluded:
"I truly believe that the heart and centre of Anthony Shaffer’s life lay in his property – his home and theatre – in the grounds of Karnak, North Queensland."
[68]In his oral evidence he described Karnak as "the centre of his [Anthony’s] being". Anthony and England[69]As I have said, Anthony did not own a home in England after 1985. When the Studio was acquired, it was acquired through his Australian company, Denouement Pty Ltd. Denouement paid the council tax. The Studio was adequately furnished, although it was small. In the last year of his life Anthony fitted it with mobility aids. Mr Crystal characterised it, not unfairly, as a "bachelor pad".[70]Anthony retained his memberships of London clubs, notably the Garrick and the Hurlingham Club. But he was an overseas member or absent member of each. He was registered on the electoral roll at the Studio. He joined the Conservative party in his local constituency, and subscribed to a residents’ association.[71]Part of Anthony’s motivation for coming to London was his need for cultural stimulation over and above what Australia could give him. Part of it was also his desire to see his two daughters, Carolyn, his mother (while she was still alive) and the joint celebration of his birthday with Sir Peter. But part of it was also his need for medical treatment, which he thought was superior in London. Yet London also grated. Sir Peter told me that Anthony deplored the changes that had taken place in England during his lifetime and that he felt that London was "no longer his place".[72]Mr Crystal submitted that the importance of women in Anthony’s life, and specifically his relationship with Jo, had caused him, by the end of his life, to regard London as his permanent home. I am not persuaded that this was so. I do not doubt that relationships with women were important to Anthony, but I do not consider that they were geographically fixed. When Anthony first met Jo she was living in Rome, to which Anthony became a regular visitor. Jo told me that he was also contemplating buying a house in California. And, of course, when he first met Diane, he followed her to Australia. Did Anthony acquire a domicile of choice in Queensland?[73]In my judgment Anthony did acquire a domicile of choice in Queensland. The particular factors to which I have given weight in coming to this conclusion are: i. Diane had decided to return to Australia and Anthony followed her there; ii. They married in Queensland and made their matrimonial home there; iii. Anthony shipped most of his personal possessions to Queensland, where they remain; iv. Following the marriage Diane and Anthony both designed and built "The Castle"; v. It was the place where he was most creative, and creation was perhaps the most important thing in Anthony’s life; vi. By 1985 Anthony had sold almost all his assets in England, and for the best part of a decade owned no home there either directly or indirectly; vii. Anthony had deliberately acquired residence in Australia for tax purposes, and part of his desire to do so was the abolition of death duties in Queensland; viii. His bank account and credit card were Australian; ix. Denouement Pty Ltd was reincorporated in Australia; x. When the Studio was acquired, it was Denouement (an Australian company) rather than Anthony who acquired it; xi. In September 1997 he stated in an official form that he intended to live permanently or indefinitely in Australia; xii. Anthony exercised the right to vote in Queensland; xiii. Anthony largely financed the building of the Karnak Playhouse, which he regarded as one of the great achievements of his life; xiv. Until the mid-1990s Anthony spent the majority of his time in Australia; xv. In 1999 he made a will in Queensland, and the only chattels he thought significant enough to mention were all at Karnak; xvi. As late as 2000 he was still discussing the possibility of Cressida going to live in Australia; xvii. He never stopped talking of Karnak as his home; xviii. On the day before he died, he stated that he lived in England for only half the year; and answered the questions applicable "if you are from abroad". Did Anthony abandon his domicile of choice?[74]In my judgment Anthony did not abandon his domicile of choice. I do not doubt that Anthony formed an intimate and loving relationship with Jo. However, the letter that she wrote to him while he was at Karnak in the Spring of 2001 shows clearly, to my mind, that, to put it no higher, he had not made up his mind what to do. Moreover, during the months that he spent in Karnak preparing for the premiere of The Thing in the Wheelchair, and in the years before that, he was, in my judgment, resident at Karnak, even though he had another residence in London. In addition the passages I have quoted from the Memoir seem to me to show that Anthony still regarded Karnak as his home in the early summer of 2001 and that he was not contemplating a return to England full-time.[75]If, therefore, Anthony lost the intention to return to Queensland, it must have been after his return to England in June 2001. What changed between June 2001 and Anthony’s death in November? The only thing of significance was Diane’s discovery of his relationship with Jo. I do not doubt that this caused a painful strain on his relationship with Diane. But the tenor of what Anthony told Mr Burrell, and the letters written on his behalf to Diane’s solicitors do not, to my mind, show a man who has lost any intention to return to Australia. He did not want a divorce. He wanted a period of "separation and reflection". He wanted to keep the Karnak Playhouse going. And on the day before he died, he stated that he lived only half the year in London and that the purpose of his stay in London was "business".[76]It would be idle to speculate about what the future would have held if Anthony had lived. Perhaps he and Diane would have been reconciled. Perhaps they would have divorced. Perhaps he would have married Jo and settled permanently in England, turning his back on Karnak. No one can tell. I must attempt to assess his state of mind up to the day he died. To use the language of Megarry J, it may be that his intention to return to Queensland was withering. But I do not consider that it died before Anthony did. I conclude that Anthony died domiciled in Queensland.

Cited in 2 later judgments