Foote Estate, Re, 502 W.A.C. 354

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Côté, Paperny and McDonald, JJ.A.
• Citation: 502 W.A.C. 354,2011 ABCA 1
• Date: 03 November 2010

Foote Estate, Re (2011), 493A.R. 354 (CA);

      502 W.A.C. 354

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JA.055

Anne Foote (appellant/applicant/plaintiff) v. The Estate of Eldon Douglas Foote, The Lord Mayor's Charitable Fund and The Edmonton Community Foundation (respondents/respondents/defendants) and Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote, Laurie Evans (not parties to the Appeal/applicants/plaintiffs)

(1003-0040-AC)

Trudy David, Douglas Foote, Debbie Entwistle, Dean Foote and Laurie Evans (appellants/applicants/plaintiffs) v. The Estate of Eldon Douglas Foote, The Lord Mayor's Charitable Fund and The Edmonton Community Foundation (respondents/respondents/defendants) and Anne Foote (not a party to the Appeal/applicant/plaintiff)

(1003-0041-AC; 2011 ABCA 1)

Indexed As: Foote Estate, Re

Alberta Court of Appeal

Côté, Paperny and McDonald, JJ.A.

January 11, 2011.

Summary:

A testator's family, which wished to pursue family relief claims, applied for a determination of the testator's domicile at the time of his death (i.e., Alberta or British Columbia). The testator's estate and his charitable foundations claimed his domicile was the Norfolk Island (an island off Australia). A preliminary issue arose as to whether the Alberta court had jurisdiction, or should exercise jurisdiction, to determine the domicile issue.

The Alberta Court of Queen's Bench, in a decision reported 431 A.R. 338, held that the issue of where the testator was domiciled as at the date of his death would be determined in Alberta. The matter proceeded.

The Alberta Court of Queen's Bench, in a decision reported at 475 A.R. 273, found that the testator's domicile at death was Norfolk Island. He had adopted that domicile at the time he became a resident of that island, in April 1972. His family appealed.

The Alberta Court of Appeal dismissed the appeals.

Conflict of Laws - Topic 243

Domicile - Change of domicile - Domicile of origin - Foote was born in Alberta in 1924 (domicile of origin) - In 1967 he gave up his law practice to pursue business interests abroad - He took steps to cease to be a Canadian resident for income tax purposes and purchased property on Norfolk Island - He was often away from Norfolk Island often for business reasons - He remained a Canadian citizen - The Alberta Court of Queen's Bench concluded that Foote abandoned his domicile of origin in favour of a domicile of choice in Norfolk Island in 1972 - In reaching this conclusion, the court considered Foote's ongoing connections to Alberta and Canada, his intention to make a life outside Alberta, his buying property and establishing a residence in Norfolk Island (1972) and his intentions in doing so, and his acquiring permanent resident status in the Norfolk Island in 1977 - He had the intention to establish an indefinite residence on Norfolk Island - The court held further, that he neither adopted a new domicile of choice in British Columbia in his final years when he considered relocating to Canada and took a number of steps in that regard, including purchasing a condominium in Victoria, nor did he abandon his Norfolk Island domicile - The Victoria residence was not his chief or principal residence - Further, his returning to Alberta for cancer treatments shortly before he died in 2004 did not establish a new domicile of choice in Alberta or revive his domicile of origin in Alberta - Foote's domicile at death was Norfolk Island - His family appealed - The Alberta Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - The Alberta Court of Appeal stated that "One's domicile of origin can be displaced by a 'domicile of choice', a place where a person has chosen to live. The classic description of domicile of choice is found in Udny v. Udny (1886), L.R. 1 Sc. & Div. 441: 'Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. ... There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation'" - See paragraph 20.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - The Alberta Court of Appeal stated that a choice to change domicile must be voluntary, not dictated by business, debts or health - The court stated that "Some authorities speak of one's domicile of choice as a place where one intends to 'end one's days'. That language is unhelpful where, as here, a person with a fatal and fast-moving illness makes a trip shortly before his death for treatment. Determining an intention to change domiciles in such a situation is not a simple matter of saying the deceased intended to 'live out his days' in the new location. It could not, in most cases, be described as a voluntary move. The acquisition of a domicile of choice involves two factors: 'the acquisition of residence in fact in a new place and the intention of permanently settling there ... in the sense of making that place [one's] principal residence indefinitely'" - See paragraphs 21 and 22.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - The Alberta Court of Appeal discussed the criteria for determining whether a domicile of choice had been abandoned - See paragraphs 24 to 27.

Conflict of Laws - Topic 244

Domicile - Change of domicile - Domicile of choice - [See Conflict of Laws - Topic 243 ].

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - A trial judge determined that a testator's domicile at the time of his death was Norfolk Island - His family appealed, arguing that the trial judge erred in law by using incorrect tests to assess abandonment and acquisition of domicile of choice - The Alberta Court of Appeal stated that while the family's arguments were carefully couched to suggest that they were pure questions of law, distilled down, they were not - Whether the testator had acquired a new domicile of choice in British Columbia or Alberta, or whether he abandoned his domicile of choice by leaving Norfolk Island and going to Edmonton for cancer treatment, thereby reverting back to his domicile of origin of Alberta, were questions of mixed fact and law reviewable on the basis of palpable and overriding error - The court found no extricable error of law that would warrant a standard of review of correctness.

Cases Noticed:

Udny v. Udny (1886), L.R. 1 Sc. & Div. 441, refd to. [para. 20].

Trottier v. Rajotte, [1940] S.C.R. 203; [1940] 1 D.L.R. 433, refd to. [para. 22].

Authors and Works Noticed:

Castel, Jean-Gabriel, and Walker, Janet, Canadian Conflict of Laws (2006), s. 4.8 [para. 27].

Dicey, Morris and Collins on the Conflict of Laws (14th Ed. 2006), p. 151 [para. 25].

Counsel:

S.J. Hammel and S.L. Hawes, for the appellant, Anne Foote;

J.M. Hope, Q.C., and B.A. Kwan, for the appellants, Trudy David, Douglas Foote, Debbie Entwistle, Dean Foot and Laurie Evans;

D.W. Hagg, Q.C., for the respondent, The Estate of Eldon Douglas Foote;

G.B. Comba, for the respondent, The Lord Mayor's Charitable Fund;

K.A. Platten, Q.C., and A. Mohan, for the respondent, The Edmonton Community Foundation.

This appeal was heard on November 3, 2010, before Côté, Paperny and McDonald, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court in Edmonton, Alberta, on January 11, 2011.