Winans v. The Attorney-General [1904] UKHL 872

UKHL
Winans v. The Attorney-General
[1904] UKHL 872

(Before the Lord Chancellor (Halsbury) , Lords Macnaghten and Lindley .)

41 SLR 872Winans v. The Attorney-General.Subject_ Domicile — Domicile of Succession — Change of Domicile — Onus of Proving Change of Domicile. Facts:The onus of proving that a domicile has been chosen in substitution for a domicile of origin lies upon the person asserting the change of domicile, and it is necessary for him to prove that the person who is alleged to have changed his domicile had a fixed and determined purpose to make the place of his new domicile his permanent home.A, who was born in the United States of America in 1823, lived there till 1850, when he went to Russia and resided there for business purposes. From 1860 to 1870 he spent the winter in Brighton for considerations of health, returning to Russia for the remaining eight months of each year. From 1871 to 1883 he spent about two months annually in Russia, two or three months in Kissingen in Germany, and the rest of the year in Brighton, Scotland, or London. In 1883 he ceased to visit Russia, thenceforward till 1893 dividing his time between, Kissingen, London, Brighton, and Scotland. After 1893 till his death in 1897 he spent the whole year in England—in London, Brighton, and the country.He never bought any property in England, but lived while there in furnished houses and hotels. He spent the latter half of his life in attempting to perfect the construction of spindleshaped vessels, which he asserted were an invention of his family. In an application to the U.S.A. Congress in 1892 he represented himself as attached heart and soul to his country, and declared that a fleet of his spindle-shaped vessels subsidised by Congress would restore to America the carrying trade which had fallen into the hands of England and other foreign nations, secure to America the command of the sea, and make it impossible for Great Britain to maintain war against the United States. He retained a large interest in a property of 200 acres in Baltimore, U.S.A., and in the conveyance by which he acquired the remaining portion of this property in 1897 he was described as “of city of Baltimore, but now sojourning in the city of London, England.” In his will, dated also in 1897, he described himself as a “citizen of the United States of America,” residing at Brighton.After his death his will was proved in England, and the Crown brought an action claiming legacy-duty on his estate on the ground that he had acquired a domicile in England.Held ( diss . Lord Lindley) that the Crown had failed to discharge the onus incumbent on them of proving that A had changed his domicile of origin, and that the claim for legacy-duty therefore failed.An action was raised by information by the Attorney-General on behalf of the Crown against the sons of William Louis Winans, who died on 22nd June 1897, as administrators of the estate of their father. In this action the Crown claimed legacy-duty at 10 per cent. on an annuity bequeathed by Mr Winans in his will, on the ground that Mr Winans, although born in the United States of America, was domiciled in England at the date of his death.The Queen's Bench Division ( Kennedy and Phillimore, JJ .) decided in favour of the Crown. On Appeal the Court of Appeal ( Collins , M.R., Stirling and Mathew , L. JJ.) affirmed this judgment.The defendants appealed.The facts of the case are set forth in the opinion of Lord Macnaghten.

At delivering judgment—

Lord Chancellor (Halsbury) —The short question here is whether Mr Winans was at the time of his death domiciled in this country. So far as it is a question of law it is simple enough to state; but when the law has been stated a difficult and complex question of fact arises, which it is almost always very hard to solve. Now, the law is plain that where a domicile of origin is proved it lies upon the person who asserts a change of domicile to establish it, and it is necessary to prove that the person who is alleged to have changed his domicile has a fixed and determined purpose to make the place of his new domicile his permanent home. Although many varieties of expression have been used, I believe that the idea of domicile may be quite adequately expressed by the phrase, Was the place intended to be the permanent home? Now, Mr Winans was an American

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Lord Macnaghten —There is, I think, hardly any branch of law which has been more frequently or more fully discussed in this House in comparatively modern times than the law of domicile. Difficulties have arisen, and difficulties must arise now and then, in coming to a conclusion upon the facts of a particular case. But those difficulties, as Lord Cottenham said, are “much diminished by keeping steadily in view the principle which ought to guide the decision as to the application of the facts.” Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicile of birth, differs from domicile of choice mainly in this—that its character is more enduring, its hold stronger, and less easily shaken off. In Munro v. Munro (August 10, 1840, 1 Rob. App. 606) Lord Cottenham observed that it was one of the principles adopted not only by the laws of England, but generally by the laws of other countries, “that the domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile and acquiring another as his sole domicile… . Residence alone,” he adds, “has no effect per se , though it may be most important as a ground from which to infer intention.” “The law,” said Lord Cairns, L.C., in Bell v. Kennedy (May 14, 1868, 6 Macph. (H.L.) 71), “is beyond all doubt clear with regard to the domicile of birth that the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicile is acquired.” The onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost. “Residence and domicile,” as Lord Westbury points out, “are two perfectly distinct things… . Although residence may be some small prima facie proof of domicile, it is by no means to be inferred from the fact of residence that domicile results, even although you do not find that the party had any other residence in existence or in contemplation.” Lord Chelmsford's opinion was that “in a competition between a domicile of origin and an alleged subsequently-acquired domicile there may be circumstances to show that, however long a residence may have continued, no intention of acquiring a domicile 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 the domicile of origin, but whether it is proved that there was an intention to acquire another domicile.” Such an intention, I think, is not to be inferred from an attitude of indifference or a disinclination to move increasing with increasing years, least of all from the absence of any manifestation of intention one way or the other. It must be, to quote Lord Westbury again, a “fixed and settled purpose.” “And,” says his Lordship, “unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that a domicile of origin continues.” So heavy is the burden cast upon those who seek to show that the domicile of origin has been superseded by a domicile of choice. And

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Lord Lindley —I take it to be clearly settled by the Lauderdale Peerage case (July 22, 1885, 10 App. Cas. 692); Udny v. Udny (June 3, 1869, 7 Macph. (H.L.) 89), and Bell v. Kennedy (May 14, 1868, 6 Macph. (H.L.) 69, 5 S.L.R. 566) that the burden of proof in all inquiries of this nature lies upon those who assert that a domicile of origin has been lost and that some other domicile has been acquired. Further, I take it to be clearly settled that no person who is sui juris can change his domicile without a physical change of place coupled with an intention to adopt the place to which he goes as his home or fixed abode or permanent residence, whichever expression may be preferred. If a change of residence is proved, the intention necessary to establish a change of domicile is an intention to adopt the second residence as home, or, in other words, an intention to remain without any intention of further change except possibly for some temporary purpose—See Story's Conflict of Laws, sec. 43; and re Cragnish [1892], 3 Ch. 180; Attorney-General v. Pottinger , 6 H. & N. 733; Douglas v. Douglas , 1871, L.R., 12 Eq. 617. The change of residence here is plain enough and need not be enlarged upon. The difficulty is about the intention of Mr Winans with reference to the change. The exact time when he made up his mind to settle here cannot be ascertained. There is no document or conversation which enables anyone to fix the date. But it by no means follows that when he died it cannot be inferred that he must have abandoned all thoughts of going back to America and settling there, and have gradually become content to make his home in this country without contemplating any further change. If this can be established, a change of domicile will be the legal result— Haldane v. Eckford , 1869, L. R., 8 Eq. 631; Douglas v. Douglas , supra . An intention to change nationality—to cease to be an American and to become an Englishman—was said to be necessary in Moorhouse v. Lord , 1863, 10 H.L.C. 272; but that view was decided to be incorrect in Udny v. Udny , supra . Intention may be inferred from conduct, and there are cases in which domicile has been changed notwithstanding a clear statement that no change of domicile was intended—see re Steer , 3 H. & N. 594; and per Wickens, V.C., in Douglas v. Douglas , supra . An expressed intention to return for a temporary purpose, or in some possible event which never happens, will not prevail over a clear inference from other circumstances of an intention to remain—see Attorney-General v. Pottinger , supra, per Bramwell, B; Doucet v. Geoghegan , 1878, 9 Ch. Div. 441. I do not propose to refer at length to the details of Mr Winans life. They were elaborately brought to

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Judgment appealed from reversed.Counsel for the Plaintiff and Respondent—The Attorney General ( Sir R. Finlay, K.C.)—The Solicitor General ( Sir E. Carson, K.C.)— Vaughan Hawkins. Agent— Sir F. C. Gore, Solicitor of Inland Revenue.Counsel for the Defendants and Appellants— Asquith, K.C.— R. M. Bray, K.C.— Willoughby Williams— Kerrick. Agent— E. H. Quicke for H. Montague Williams, Brighton.