27th October 2023

A change of domicile within the UK: how it might affect your Will

Harriet Murray

Senior Associate

On a recent trip to Scotland, my colleague David Draisey and I had a number of stimulating and thought-provoking discussions with practitioners north of the border.

Whilst England, Northern Ireland, Wales and Scotland are all countries within the United Kingdom, they are separate legal jurisdictions and one of the areas where there is a difference is the framework for financial provision on death.

In England and Wales, the Inheritance (Provisions for Family and Dependants) Act 1975 (‘the 1975 Act’) provides recourse for some family members and certain others where the Will, or the intestacy rules, fail to make reasonable financial provision. The categories of claimants include:

The spouse/civil partner;
A former spouse/civil partner who has not remarried;
A child of the deceased or someone treated as if they were a child of the deceased;
Any person who immediately before the death of the deceased was being maintained either wholly or partly by them; and
Any person who was living in the same household as the deceased, in a relationship akin to husband and wife, for two years before the date of death.

For the 1975 Act to apply, the deceased must have died domiciled in England and Wales.

A move to a different jurisdiction within the UK, to the extent of acquiring a new domicile (and there may be arguments over whether a new domicile was acquired or not), would therefore alter the applicable legal framework for financial provision on death. We advise clients to review their Wills if there is a change of circumstances and moving to a different jurisdiction is a good example of such a change.

Although the 1975 Act is a fetter on the testamentary freedom of a person who dies domiciled in England and Wales, the Will and how the wishes within it might be thwarted by a claim or claims under the 1975 Act after their death can be discussed and steps taken to mitigate the risk of a successful claim.