Does it matter where you are domiciled? It sure does! A Will was revoked based on a marriage in 2013

Sato v. Sato 2017 BCSC 1394

The case of Sato v. Sato 2017 BCSC 1394 highlights the analysis in determining where an individual is domiciled.  Where an individual is domiciled becomes important when it influences whether or not a will may be revoked due to a marriage – ss. 14 and 15 of the former Wills Act, R.S.B.C. 1996, c. 489 provided that the marriage of the testator of a will revokes the will, unless the will was made in contemplation of marriage. 

The plaintiff married the deceased in 2013 and had moved from Japan to live with the deceased in Luxembourg.  The deceased had strong connections to Canada, including family, but much of his life brought him elsewhere.  The plaintiff brought an action regarding the Will of the deceased and the defendant, the sister and executrix of the deceased, brought an application for summary judgment.  The issue that had to be determined was whether the deceased was domiciled in BC at the time of his marriage to the plaintiff.  If that were the case, the 2011 Will would have been revoked by operation of law.  If it were not the case, the parties had agreed that the deceased was domiciled in Luxembourg, meaning the 2011 Will was not revoked by the marriage.    

The court reviewed the law regarding domicile of choice and abandonment, quoting the following from Scott v. Vanston, 2016 SKCA 75:  

[8] "...a person establishes a domicile of choice by voluntarily choosing to reside in a location, not temporarily or for some special purpose, with the intention of making it his permanent home unless and until something unexpected or uncertain induces him to adopt some other permanent home."  


Application dismissed.

The court found the deceased was in fact domiciled in BC when he married the plaintiff in 2013 – while the deceased was a resident of Luxembourg, he was not domiciled there - this resulted in the revocation of the 2011 Will.  The defendant had not met her onus of showing the deceased had changed his intention of retiring in Canada as he stated in 2000 to the CRA by the time of his marriage in 2013. 

It was determined the deceased had ceased to be a resident of Canada in 1999 and from 2009-2015 (date of his death) he was a resident of Luxembourg.  The following were some important points on the deceased’s life: 

  • There was no evidence the deceased made any subsequent will. 
  • In a work document, signed when the deceased moved to the Cayman Islands, the deceased stated that he planned to store some furniture and household goods in Canada, keep his driver’s licence, keep a Canadian bank account and listed RRSPs as investments.  The work document also indicated that the deceased intended to retire in Canada. 
  • Having moved offshore, the deceased would return to visit Vancouver every couple of years. 
  • Much of the deceased’s personal items were in Luxembourg, his home was in Luxembourg, he had a job in Luxembourg and he lived there. 
  • The deceased filed his tax returns in Luxembourg and had made inquiries whether he would be eligible for an old age pension in Luxembourg. 
  • Notably, at the time he was married, the deceased did not have any indication that he had changed his mind regarding retiring in Canada.

[153]     The defendant has not met her onus of showing that the deceased had changed his intention of retiring in Canada as he stated in February 2000 to the CRA by the time of his April 2013 marriage to the plaintiff.

[154]     As noted, I have found that the deceased was a resident of Luxembourg. He had a residence in Luxembourg. He had many friends in Luxembourg. He had a full-time job in Luxembourg which was not subject to reposting. He had represented the Canadian and U.S. tax authorities that he was a resident of Luxembourg. As of April 2013, the plaintiff and the deceased had planned to live together in Luxembourg. To use the words of the Supreme Court of Canada in Osvath-Latkoczy, the deceased had “voluntarily fixed the habitation of himself and his family” in Luxembourg. However, the defendant has not established on a balance of probabilities that the deceased had the requisite intention to make Luxembourg his permanent home.

[155]     Upon the deceased’s retirement (something which was not “unexpected”), the defendant has not established that the deceased planned to remain in Luxembourg.

[156]     The defendant has not established on a balance of probabilities that after February 2000, the deceased changed his intention as set forth in his certified statement to the CRA.

[157]     The defendant has not provided “sufficiently clear, convincing and cogent” evidence to satisfy her onus. The deceased was, by his own admission, not particularly fluent in French, a principal language used in Luxembourg (as shown by the deceased’s Luxembourg tax filings). The plaintiff, the deceased’s spouse, was Japanese which militates against inferring that the deceased may have changed his intention to retire in Canada to that of Luxembourg. Such an inference may have been more readily drawn if the plaintiff had been a citizen of Luxembourg. The deceased still had family in British Columbia. Finally, other than the one enquiry as to eligibility regarding a Luxembourg old age pension, there is no email, letter, official filing, or other written document which reflects an intention by the deceased to change his intention to retire to Canada to that of Luxembourg.

[158]     I have noted that in the 2011 Will, the deceased stated his home address to be in Luxembourg. Such is consistent with the facts and with the deceased being a resident of Luxembourg.

[159]     I recognize that the deceased did not talk specifically with the plaintiff about where he planned to retire, and that while in the deceased’s hospital room, the plaintiff said to Ms. Go that the deceased had a “desire” to retire in Japan.

[160]     I also recognize that Mr. G. Wiersinga, a friend of the deceased, has stated that the deceased told him many times that if he retired, “he would choose to retire in Japan so that he would be close to his mother, Samiko”. Samiko was the deceased’s step-mother. She moved back to Japan in 1984 which was well before the plaintiff’s certified statement to the CRA.

[161]     In regards to an intention to retire in Japan, I note that this further supports the proposition that the deceased did not intend to reside in Luxembourg indefinitely.

[162]     In sum, I am not satisfied on a balance of probabilities that the deceased changed his intention to retire to Canada to that of Luxembourg on or before his marriage to the plaintiff in April 2013 (until his death, the deceased’s domicile also continued to be British Columbia). The plaintiff succeeds on this basis.

[163]     Defendant’s counsel, in his written submission, states:

5.         Although there may have been some uncertainty about Rex’s intent during the 15 years that he was “posted” outside B.C. by his Canadian employer RBC, it was Rex’s clear personal choice to end his work with RBC, and move to Luxembourg to make his home and career for the indefinite future. The fact that Rex entertained uncertain ideas about his retirement (whether in Luxembourg, Canada or Japan) only illustrates the nature of “domicile of choice”, in that it is subject to change in the future by a new choice. It is only required that Rex have the intent to remain indefinitely until he makes a future choice. Rex had no pre-determined end point. As of 2008, Rex’s domicile was Luxembourg.

[164]     With respect, I cannot accede to defendant’s counsel’s submission. The deceased expected to retire. Retirement was not an “unexpected” something. A war or a natural disaster may be examples of an “unexpected” something or “the happening of which is uncertain”: Osvath-Latkoczy at 753; see also Inland Revenue Commissioner v. Bullock, [1976] 1 W.L.R. 1178 at 1186.

[165]     Defendant’s counsel’s submission also does not meet the test stated by the Alberta Court of Appeal in Foote Estate CA and adopted by the Saskatchewan Court of Appeal in Scott.

[166]     At its highest, the defendant’s case points to the possibility of the defendant retiring in Japan. As plaintiff’s counsel noted, Mr. G. Wiersinga’s statement as set forth above serves to show that Luxembourg, in any event, was not the deceased’s domicile of choice.