Domicile connects a person to one legal system for purposes that include succession to movable property. It is not the same as citizenship, nationality, residence or immigration status.

Every person has a domicile and can have only one domicile at a time. A domicile of origin is acquired at birth. It continues until displaced by a domicile of choice or, in the cases recognised by law, a domicile of dependence. Even though a person made a will in another country, if that person died domiciled in Singapore, Singapore laws would apply.

In Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765 (“Peters Roger“) at [15] to [25], the High Court set out the principles that apply in Singapore. In particular, the court explained at [18] to [19] that a domicile of choice requires both residence in the country and an intention to reside there permanently or indefinitely.

Domicile of origin

The domicile of origin is tenacious. The High Court explained in Peters Roger at [16] to [17] that it remains until a domicile of choice or dependence is acquired. Even leaving the country with no intention to return does not displace it unless a domicile of choice is acquired elsewhere. If a domicile of choice is later abandoned without a new one being acquired, the domicile of origin revives.

Domicile of choice

Residence and intention must coincide. The required intention is not necessarily irrevocable, but it must be permanent or indefinite rather than tied to a limited purpose. As held in Peters Roger  at [21] to [24], the court considers the whole factual picture. Relevant evidence may include the duration and purpose of residence, homes, family ties, employment, citizenship steps, financial arrangements, correspondence, voting, the location of property and personal belongings, social habits and plans for retirement.

In WKR v WKQ [2023] SGHC(A) 35 (“WKR v WKQ“) at [51], the Appellate Division of the High Court reaffirmed that even a short residence may suffice where the intention is clear, but that intention is a highly factual inquiry. The decision also illustrates why citizenship is not a substitute for the two requirements (at [57] to [63]), evidence that the deceased had obtained Vanuatu citizenship did not establish a Vanuatu domicile summarily where there were live disputes over whether he had ever been physically present there and where he had actually made his home.

 

Abandonment

A domicile of choice is abandoned only when the person both ceases to reside in that country and gives up the intention of permanent or indefinite residence there. Both requirements must be proved. Temporary absence, overseas medical treatment or an unrealised plan to retire elsewhere may therefore be insufficient (Peters Roger at [25] and [98] to [100]).

 

Why domicile matters

Domicile identifies the law that generally governs succession to the deceased’s movable estate, whether the deceased died testate or intestate. In Murakami Takako (executrix of the estate of Takashi Murakami Suroso, deceased) v Wiryadi [2007] 3 SLR(R) 1019 at [44] to [45], the Court of Appeal accepted that the law of the testator’s domicile would govern succession to the testator’s movable assets if the foreign court was exercising testamentary jurisdiction. By contrast, succession to immovable property is generally governed by the law of the place where the property is situated.

This affects essential validity because the law of the deceased’s domicile generally determines whether a testamentary disposition of movable property is legally effective, while the law of the situs generally governs a disposition of immovable property. It also affects intestacy. Section 5 of the Intestate Succession Act 1967 applies to movable and immovable property in Singapore where the intestate was domiciled in Singapore, but only to immovable property in Singapore where the intestate was domiciled outside Singapore.

Formal validity is a separate question. Section 5 of the Wills Act 1838 is a validating provision on the proper execution of a will. For a testator who died after 26 June 1992, it treats a will as properly executed if its execution complied with any one of several alternative laws, including the internal law of the place of execution, the testator’s domicile, habitual residence or nationality at the specified times. Domicile is therefore one possible connecting factor under that provision, but it is not the only route to formal validity.

The concept of domicile also applies in Section 3(1) of the Inheritance (Family Provision) Act 1966 where a person dies domiciled in Singapore leaving one of the dependants specified in that subsection and the will, intestacy rules or their combination does not make reasonable provision for that dependant’s maintenance. The court may then order periodical payments or a lump sum out of the net estate. A person who was not domiciled in Singapore at death will not be able to use this provision.

Finally, section 7 of the Probate and Administration Act 1934 is the provision on a notation of domicile. It allows a probate applicant to apply for a notation on the grant stating that the testator or intestate died domiciled in Singapore. Under section 7(2), the registrar may endorse that notation only after being satisfied by affidavit and any further evidence required. The notation records the domicile finding on the grant. It does not itself create or change the deceased’s domicile. In Peters Roger at [1] and [112], the High Court made such a finding and directed that the notation be endorsed.

 

Proof

The starting point is the domicile of origin. The person alleging that the deceased acquired a different domicile of choice bears the burden of proving the change. If that domicile of choice is established, the person alleging that it was later abandoned bears the burden of proving both cessation of residence and loss of the required intention (Peters Roger at [25] to [26]). In a particular application, the applicant must prove the domicile needed for the order sought. For example, WKR v WKQ at [52] held that the applicant seeking to reseal the Vanuatu grant bore the burden of proving that the deceased was domiciled in Vanuatu.

Proof therefore requires more than citizenship, a foreign address or a statement that the deceased had moved. The evidence should establish physical presence as an inhabitant and the deceased’s intention at the relevant time. Depending on the dispute, this may include passport and immigration records, the purpose and duration of stays, ownership and use of homes, where the spouse and children lived, employment and business records, tax and electoral records, bank and investment correspondence, wills, medical evidence explaining an absence, plans for retirement, and contemporaneous private communications. Declarations of intention are relevant, but the High Court cautioned in Peters Roger at [79] to [81] that domicile cannot be acquired or retained by declaration alone and that a declaration must be tested against the person’s conduct and the totality of the evidence.

The High Court also addressed at [68] to [70] a rebuttable presumption against acquiring a domicile of choice in a country whose religion, manners and customs differ widely from those of the country of origin. The place and mode of residence remain relevant, but the presumption is not conclusive. The evidence must still be evaluated as a whole. Allegiance is also distinct from domicile. Retaining affection for, or a passport from, the country of origin does not by itself prevent the acquisition of a domicile of choice elsewhere.

 

Yours sincerely,

Daryl