So where do you live for estate purposes? Domicile can be a thorny issue.

In our mobile world, the issue of where a person lives, or is “domiciled”, when they die is not always straightforward. Recently, the Alberta Court of Appeal was required to apply the rules on domicile and to confirm the state of the law. The issue is important because domicile will determine which laws apply to the administration and distribution of an estate.

A person can have only one domicile at a time. You start with a “domicile of origin” (usually where you were born). That domicile can be displaced by a “domicile of choice”. Furthermore, a domicile of choice can be abandoned for another domicile.

Two factors come into play in determining domicile of choice. Firstly, a person must actually acquire a residence in a new place. Secondly, they must intend to permanently settle in that place.

The test for whether a person has abandoned a domicile of choice is similar. Firstly, a person must cease to live in a domicile of choice. Secondly, they must intend to permanently leave that place. Again, both are necessary. It is not sufficient to have the intention to leave but not do so. Similarly, it is not sufficient to leave the place without exhibiting an intention not to return.
Of course, these are all issues of fact which are determined on a case-by-case basis. Whether a person has taken or abandoned actual residence is generally not that difficult to determine. However, intention is rarely straightforward and must be determined by circumstances and surrounding facts, as the person whose intention is important will not be around to give evidence.

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