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The Relevance of Domicile for Distribution of Estate

Posted by Benchmark Lawyers in Probates & Powers of Attorney, Wills | 0 comments

In the Estate of Milind Bedake [2015] ACTSC 267 (2 September 2015)

The deceased was born on 24 April 1973. He moved to Australia permanently in 1998. On 1 October 2002, he got into a motor vehicle accident and suffered severe head injuries. A letter dated 6 January 2006 from a doctor in the Brain Injury Rehabilitation Unit at a Hospital in the ACT stated that the deceased had no mental capacity to make decisions.

On 16 September 2003, the deceased returned to India and was cared for by his father and the second wife. The deceased developed infections and despite intervention by doctors, died on 24 July 2010. At the time of his death, he had no child and was divorced from his second wife. He did not have a Will.

The deceased left an estate in ACT held by the Public Trustee totalling $132,983.50.

Issues: what law should be applied for the distribution of property? In particular, what was the deceased’s domicile at the time of his death?

According to Pipon v Pipon [1744] EngR 964; (1744) Amb 25; 27 ER 14, “the succession to movable property on intestacy is determined by the law of the domicile of the intestate at the time of death” at [21].

The deceased domicile of origin is India and his domicile of choice is Australia as he permanently moved here. The question then becomes whether his domicile of choice changed when he returned to India after the accident.

The court relied on Nygh’s Conflict of Laws in Australia (9th ed, 2014) at 13.22:

“Because acquisition of a domicile of choice depends in part upon intention, special difficulties arise in relation to persons of unsound mind. The Domicile Acts specifically state that they do not alter the common law in relation to such people. If a person by reason of mental illness is incapable of the required intention to settle in a country indefinitely, his or her domicile remains unchanged as long as the incapacity persists. It would seem that the domicile of the mentally-ill person cannot be changed by the guardian.”

Therefore, the deceased choice of domicile was Australia . At the time he was taken to India, he was incapable of making the decision to settle indefinitely because of his mental incapacity. The laws of Australia apply to this case; therefore, the father would receive the estate since the deceased was divorced at the time of his death.

The court also considered the laws of India and it found that it would have arrived at the same beneficiary, the father of the deceased.

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