DOMICILE, IHT and burial

1. A variation on 5. Bury in a foreign field. Blow-off the tax man. Exhume and re-bury in Blighty with the wife.
2. A variation on 7. Bury heart in foreign field. Rest in Blighty. Or vice versa.
3. Cremate abroad. Scatter here (shshh!).

Any others?

Why do you say that? Is there chapter and verse on the web somewhere? It sounds like b*ll*x to me.

:-)

Jim

As a testator's directions for disposal of his body aren't binding on his personal representatives, why bother expressing them in the will anyway? Why not simply come to a private arrangement?

Excellent point, m' learned friend. However, absence of clearly stated intent does not mean contrary intent, especially if the corpse actually ends up planted in Blighty. The revenue could reasonable infer that that was in fact the exact term of the private arrangement! However surely option 5 is unassailable.

1. Mr. X states in his will that he wishes to be buried in his domicile of choice. The children ignore his "wishes" and have him buried with the wife in the UK.

The children ignore his unenforceable publicly stated wishes and plead ignorance of both the wishes and the supposed tax-consequences and carry out his "secret" wish. I think the Revenue trying to tax a dead person on the basis of a non-tax related "mistake" made by third parties after his death would be laughed out of court. The taxman would probably know he had been "had", but would just have to grind his teeth. Disagree?

I would hate to point this out in your plans but:

1. You are quite correct in your assessment of the IHT position. If domicile is determined to be UK then his worldwide estate would be taxable; this also will not stop other juristictions determining that some part of the estate is subject to local IHT or equivalent.

1. It is the executors who are responsible and liable to pay IHT on behalf of the estate and are indemnified by the estate's assets. Anyone responsible won't take a flier in this and will obain legal advice if not straight-forward.

2. You cannot transport dead bodies around easily even when they are in ash form. You need to have permits (even within the EU).

However, the the subject is a non-UK born, lived and died outside the UK, held all his assets outside the UK and these are not for beneficiaries inside the UK, it will be impossible for the IR to get their sticky fingers on them even if they could argue domicile which I think on balance they would lose. They more that those statements are not true, the greater the weight of argument that they are UK domiciled. If the subject is UK born and wishes to be buried here, he will be almost certainly be domiciled in the UK, irrespective of his statements and acts during his lifetime.

snip

Thank you, so it's clearly not b*ll*x, however, the whole problem of where you are buried can be overcome by getting a fim grip on the idea that when you're dead you're dead, and you *really* won't care.

What happens to your mortal remains you should leave to your relatives who will say things like "s/he realy loved this piggery, we'll put the ashes in the swill. It'll make them feel better, but I suspect you won't give a damn."

Sounds good to me. If the children are pressed on the point and asked why they buried him here, apparently contrary to his wishes, they can always say it was because that way it would be more convenient for them to visit his grave.

I don't see that being a serious risk. Domicile might be inferred from the place where a person wishes to be living at the end of his life, when viewed along with other indicators, but I know of no case where it was inferred from the location to which someone wished his deceased remains thereafter (i.e. posthumously) be transported and interred.

Tony

In article , Edward Lionheart writes

Only if they know that there is one.

Why complicate matters? The majority of testators don't express any preference as to the disposal of the body. I think an arrangement such as the one suggested may very well arouse suspicion.

I've never heard of the Inland Revenue taking the place of burial into account when deciding issues of domicile. That isn't to say that it doesn't happen, but if it does, I'd be surprised if it's ever a major factor.

I don't follow the logic. If the testator says nothing and ends up planted here, it cannot be excluded that that was his intention. OTOH if he states he wishes to be buried abroad, and his wishes are ignored, how can he be held responsible(and taxable.) It may arouse suspicion, but that is Hector's normal attitude anyhow. Suspicion is one thing, but proof is something entirely different.

Domicile is a matter of common law, not tax law.

Spence v Spence: A Jewish man with a Scots domicile of origin moved to Spain. He was registered as married in Spain and had two children there. The marriage subsequently broke down but at the time of proceedings he had another girlfriend there. Held that had not obtained Spanish domicile of choice, Scots domicile of origin persisted. 1) Social circle consisted mainly of British(in particular Scots) friends 2) Onus is on party averring a change of domicile to establish it 3) Illustrates lairs or burial instructions but this was not decisive in this case(He had resigned membership of Glasgow burial society).

Ramsay v Liverpool Royal Infirmary:(H of L)Lord Buckmaster, Viscount Dunedin, Lord MacMillan; Validity of wil depended on Scots or Eng dom. Scots dom of origin. Resided in Glasgow for long period, had retained property in Glasgow but had no wish to return. He had lived in isolation and not entered into life of the place, he had retained a subscription to a weekly Glasgow newspaper. Did not return even for mother's funeral and made arrangements for own burial in Liverpool. Will declared "a Glasgow man'.Held no intent to acquire new dom of choice so dom of origin persisted.

Brown v Brown: There is a duty on the legal representatives to inform the court of all the relevant circumstances pertaining to domicile.

Drevon v Drevon: Even the smallest factors can be relevant in determining a parties domicile.

Taking the above sample of cases, it seems clear that burial intentions

The only one of your examples that even mentions burial intentions states that the individual concerned was found never to have acquired a domicile of choice, whereas you state that the Mr. X in your original situation HAD acquired a foreign domicile of choice.

Nothing you have quoted could lead one to the conclusion that mere burial intentions are sufficient to change someone's domicile.

Tony

Eh? (i.) Domicile is a matter to be decided by the courts. (ii.) The courts have held that burial intentions is one factor to be considered, and even the smallest factor can be decisive. (iii.) When I say Mr.X has acquired a foreign domicile of choice, that is implicitly subject to (i). (iv.) Therefore Mr.X and his heirs need to consider carefully (ii) in the light of (i).

How can you suggest otherwise?

Your original post explicitly stated that we were to "Suppose Mr.X has acquired a foreign domicile of choice"

If you now wish to argue against your own original premise, may I suggest you take this thread to email with yourself :-)

Tony

Your responses ignore one thing; It is possible to lose a domicile of choice as well as to gain one, and the former is very much easier than the latter.

Don't respond to threads you don't understand.

I thought that any change in domicile would normally involve both one gain and one loss. But if I got that wrong, and if what you say is true, then there must also be an ever-growing number of domicile-less people.

Tony

Under English law you are born with a dom of origin (father's dom unless illegit, then mother's) You may (with difficulty) acquire a dom of choice elsewhere. If you lose that dom of choice without acquiring(with difficulty) another, your English dom of origin automatically revives.

eg. man with English dom of origin acquires a New York State dom of choice and lives there 50 years. Decides to end his days in sunny California. Dies on the way there. He will die domiciled in England.

Since it is virtually impossible to get a Inland Revenue ruling on your domicile until after you are dead, the sensible thing to do is to nail as many issues as you can which may be used by the IR to claim you never really acquired your supposed dom of choice. Burial / burial instructions may be one of those issues.

Not so. Domicile rulings can be necessary where the remittance basis applies in respect of IT and CGT - including foreign emoluments for Schedule E.