The case of D Austin v. G Mitchell and another [2020] is an interesting, unusual and affecting non-tax case involving questions of domicile. Domicile questions are always bound up with the detail of individuals’ lives. This case involved several interesting applications of the law of domicile in respect of facts which could form the plot of a television drama and which are inutterably sad.
It involved an application to the High Court by a mother whose name in the case title is given as Denise Mary Austin but who is referred to in the body of the Case Report by her later married name of Mrs Allan. We do likewise. The application was for the court to declare that her son was to be presumed to be dead.
Mrs Allan’s domicile
On 21st August 1986 Mrs Allan had a son, Charles, by her then husband, Max Horvath (‘Mr Horvath’). It is unclear whether on that date Mr Horvath was domiciled for the purposes of English Law in Hungary or Canada but, in any event, whatever was his country of domicile at that time, it became Charles’ domicile of origin (see Udny v. Udny [1869]).
Mrs Allan had, at her birth, a domicile of origin in England. At the time of her marriage, however, when a woman married she acquired the domicile, at that time, of her husband as her domicile of dependency. Whatever was Mr Horvath’s country of domicile at the time of his marriage to Mrs Allan, therefore, became Mrs Allan’s domicile of dependency.
Mr Horvath and Mrs Allan separated in 1972 and Mrs Allan returned to England with Charles intending to live here permanently or indefinitely. At all relevant times thereafter, although he visited his father on occasions, Charles lived and made his permanent home in England with his mother, Mrs Allan.
The Domicile and Matrimonial Proceedings Act 1973 (the ‘DMPA 1973’) came into force on 1st January 1974. On its coming into force, under s. 1(2), wives’ existing domiciles of dependency became domiciles of choice. The Court found, on the authority of IRC v. Duchess of Portland [1982], that, because Mrs Allan before that date had taken up residence in the UK with the intention of making it her permanent home and that state continued, her domicile of choice on 1st January 1974 became the country of England. The report does not say so but one presumes that was because on the 1st January 1974 she became capable of acquiring a new independent domicile of choice so that the transformation of her domicile of dependency which had followed Mr Horvath’s domicile into a domicile of choice happened instantaneously with her acquisition of a new domicile of choice in England.
Acquisition of the Property
Mrs Allan and Charles had a strong and affectionate mother and son relationship. Mrs Allan had acquired the freehold of a property in Halifax (the ‘Property’). In order ‘to give Charles long-term financial security’, on 6th October 1988 she transferred a joint interest in the Property to Charles.
Charles’ travels to Canada
In September 1988, Charles had gone backpacking in Canada. Whilst away he contacted his mother regularly by telephone, postcard and faxed letters. Mrs Allan and Charles met in Montreal in December 1988 for an early Christmas. In a faxed letter to his mother on 11th May 1989, he wrote of his plans to meet her in Hong Kong to celebrate his 21st and her 40th birthday in August 1989. It was the last communication which Mrs Allan received from her son.
Some time in May 1989 Charles had gone to a campsite cum trailer park in British Colombia known as ‘Tiny Town’. When she visited it subsequently, Mrs Allan said that it was ‘a rough campsite and not a pleasant place to stay … it was very dark, neglected, overgrown and accommodated unsavoury residents’. Constable Blaney of the Canadian Mounted Police, who subsequently investigated Charles’ disappearance, described the site’s residents as ‘evil’.
The last confirmed siting of Charles was at a party on the campsite on 26th May 1989.
Half a lifetime spent in seeking facts about her son’s disappearance
Over the more than 30 years which have passed since then, Mrs Allan has made strenuous efforts, both in Canada and in England, to find out what happened to her son and, in order to do so, to maintain public interest in the case through books, newspaper interviews and magazine articles. Initially she had to put pressure on the Canadian Police to take his disappearance seriously.
She visited Tiny Town on more than one occasion. On her first visit, the campsite manager, Keith Flett, said that ‘almost all of Charles’ other belongings, his tent, his sleeping bag, his backpack, his personal papers, his photographs, his clothing and his ID had been stored in a shed that had been thrown away in the spring of 1990’. He gave no reason as to why that was done.
On the same visit she met a Tiny Town resident, Trent Egan, who claimed not to have any of Charles’ possessions.
Mrs Allan passed the information she had received from Egan and Flett to the Canadian Police who subsequently found some of Charles’ possessions amongst Egan’s possessions and some in the possession of Egan’s former girlfriend.
Mrs Allan visited Tiny Town again in March 1992. She received an anonymous note telling her that two people had killed her son at the party on 26th May 1989 and that his body was in the site’s lake by a bridge. Whilst the lake was being searched, she received another note saying ‘Your [sic] diving on the wrong side of the bridge’. A body was indeed found in the lake but it was not that of Charles.
An unsolved mystery
The mystery of his disappearance has never been solved.
The purpose of the application
Mrs Allan’s application under the Presumption of Death Act 2013 {‘PDA 2013’) s. 1(2) was heard in August 2020 when she was 71 years old. The decision did not say why she made the application but it was, one presumes, so that she could deal with the Property.
Satisfying the conditions of PDA 2013 s. 1(3)
Under the PDA 2013 the court has jurisdiction to hear and determine an application under the Act if one of two conditions in s. 1(3) is satisfied. The relevant condition in respect of Mrs Allan’s application was that:
‘the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive’.
The Court found that Charles was last known to be alive on 26th May 1989. In what country was he domiciled on that date?
Charles’ domicile
The Court’s decision explains that under the DMPA 1973 s. 4:
‘a child whose parents are alive but living apart will have the domicile of his mother if “…he then has his home with her and has no home with his father”’.
We have seen that in the period from 1972 to his 16th birthday Charles lived with his mother, Mrs Allan, in a home in England and not with his father, Mr Horvath. The Court decided, therefore, that during that period his domicile of dependency was the same as his mother’s domicile of choice; that is in England. It further found that when Charles reached 16 under the DMPA 1973 s. 3(1) he became capable of acquiring a new domicile of choice but ‘although Charles joined the French Foreign Legion at about the age of 17 or 18 for 6 months his home remained with his mother in West Yorkshire’. The Court held that when he went to Canada he did not go there with the intention of permanently residing in Canada and so at all times up to and including the date on which he was last known to be alive his domicile was in England.
Conditions for the making of a declaration
The Court therefore had jurisdiction to hear and determine Mrs Allan’s application. It could make a declaration under the PDA 2013 s. 2(1) if it was satisfied that the missing person:
‘(a) has died, or
(b) has not been known to be alive for a period of at least 7 years’.
The Court found, on the balance of probabilities, that the condition in (a) above was satisfied. Where the Court makes a declaration under PDA 2013 s. 1(2), its declaration must include a finding as to the date and time of the missing person’s death. Where the Court is satisfied that the missing person has died, but is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period.
The Court found on the balance of probabilities that Charles died sometime between the time on 26th May 1989 when he was last seen alive and noon on 27th May 1989 (both times being British Columbia time). It therefore found that Charles was to be presumed to have died at 12:01pm on 27th May 1989 British Columbia time.
Declaration in respect of the ownership of the Property
Mrs Allan had also sought a declaration that she held the entire legal and beneficial interest in the Property by survivorship.
Immediately before the presumed time of Charles’ death Mrs Allan and Charles held the Property as legal joint tenants. The Court found that there was no evidence to suggest that the beneficial interest in the Property was held otherwise than as joint tenants. The Court therefore declared that immediately before his death the Property was held by Charles and Mrs Allan as legal and beneficial joint tenants and, because he was to be presumed to have died on 27th May 1989, his beneficial interest in the Property automatically passed to Mrs Allan by survivorship on that day with the result that, at the time of the application, she held the entire beneficial interest in the Property.
A small element of justice for a tenacious and unfortunate lady
So Mrs Allan’s application was granted and she will, therefore, be able to deal with the Property in her old age. The Court has provided what small element of justice it can to a loving mother and a tenacious and unfortunate lady.
