The Gazette 1995

GAZETTE

DECEMBER

1995

With regard to (1) it was pointed out

that the Trustees were given the

widest powers in relation to the

residuary Estate in the Will of X.

In relation to (2) the Revenue

Commissioners opinion was that the

21 March 1991 (the date of issue of

the Grant of Probate) was the earliest

upon which the Trustees were entitled

to retain the lands for the benefit of

the successor. However, the dictum of

Lord Fleming in the

Lord Advocate -

v- Wotherspoons Trustees

1930 SLT

82 states clearly that "retainer is

something of an analogous character

to actual delivery or payment" and as

the Estate of the deceased had not

i been administered in March 1991 then I

I it was not possible for the residue of

the Estate to be in existence at that

date. Accordingly the valuation date

selected was not in the circumstances

of the administration inappropriate.

, In relation to (3) the spouse of Y, Mr.

Y had a domicile of origin in New

Í York, while Mrs. Y had a domicile of

origin in a domicile area of England

and Wales. After some time abroad

and subsequent to their marriage in

1968 they returned in 1970 to England

and set up home. Mr. Y accordingly

; acquired a domicile of choice in

England and Wales.

I Section (1) (2) of the Domicile and

Matrimonial Proceedings Act 1973

provides that where immediately

before the Section came into force (1

January 1974) a woman who was

married and then had her husband's

domicile by dependence was to be

treated as retaining that domicile as a

domicile of choice if it is not also her

domicile of origin, unless and until it

is changed by acquisition or revival of

I another domicile either on or after the

j coming into force of the Section of the

! Act. As already mentioned Mrs. Y

took up permanent residence in

I Ireland on 1 July 1992 with the

intention of establishing a permanent

i home here and accordingly acquired a

domicile of choice in this country.

! The UK case of

IRC

-v-

Duchess of

! Portland

(1982)

1 All ER 784

\ considered the effect of Section 1(2)

of the 1973 Act mentioned above. The

Section operated to deem the Duchess

as retaining her husband's English

domicile unless or until she changed

that domicile by the acquisition or

revival of another domicile after the

coming into force of Section 1(1).

Nourse J.

was of the view that she

could only free herself from the

shackles of dependency by choosing

to leave her husband for permanent

residence in another country". He

rejected the notion that spending

1 0 - 1 2 weeks annually in Quebec

amounted to permanent residence

and that she did not abandon her

domicile of choice in England and

Wales imposed on her by the Act of

1973. The same tests apply to

the facts in the Mrs. Y case but

she

did

take up permanent residence in

Ireland and acquired a domicile of

choice here.

With regard to the concept of domicile

of dependency the Irish Domicile and

Recognition of Foreign Divorces Act

1986 provides in Section 1 that:

"The domicile of a married woman

shall be an independent domicile and

shall be determined by reference to

the same factors as in the case of any

other person capable of having an

independent domicile and accordingly

the rule of law whereby upon

marriage a woman acquires the

domicile of her husband and is during

the subsistence of the marriage

incapable of having any other

domicile is hereby abolished".

The Section states further that Section

1 above applies to the parties of every

marriage irrespective of where and

under what law the marriage has taken

place and irrespective of the domicile

of the parties at the time of the

marriage. Furthermore the Supreme

Court held forcefully that the concept

of the domicile of a married woman

being the same as that of her husband

did not survive the enactment of the

Constitution and was specifically

contrary to Article 40 (1) per

O'Hanlon J.

W.V.W.

[1993] ILRM

294; [1993] 2 IR 476. Accordingly the

two tests required to establish a

domicile of choice namely Animus

and Factum were satisfied by Mrs. Y

on 15 September 1992. However, her

husband Mr. Y retains his domicile of

choice in England and Wales.

Finally in Spring 1995 as a result of

Mrs. Y having acquired at the

valuation date:

A. A domicile of choice in Ireland and

B. having converted non-agricultural

property to agricultural property,

Mrs. Y qualified for Section 19

relief as £ 150,000 (i.e. £300,000 -

50%) now dropped out of charge at

55%, thereby saving £82,500.

*Eamonn O'Connor is a solicitor

with S.S. & E. Reeves, Solicitors,

Dublin, and is a member of the Law

Society's Taxation Committee.

•

Excel Legal Services

The Stonehouse,

Old Blessington Road, Dublin 24

Phone: 462 2807 Fax: 462 2808

Specialists in Legal

Secretarial Services

# Fully Computerised

# Complete Legal Software Package

# Ideal to assist existing staff

at busier times, holiday

leave etc.

# To assist Sole Practitioners /

Barristers

# Why have the hassle of

Temporary Staff and

PAYE/PRSI

when we

provide a competent service

without the hassle!

# Collection / Delivery service.

COMPLETE CONFIDENTIALITY

ASSURED.

AN ACCOUNTANT

ALTERNATIVE

Is your firm considering

hiring an accountant?

Maybe a full-time

appointment is too costly

or not necessary.

Why not consider a

2 day week permanent

appointment.

(Dublin City - Nth. Wicklow)

Phone: 287 6782

307