Re Flynn (deceased)

Flynn v Flynn
CIVIL PROCEDURE
CHANCERY DIVISION
MEGARRY J
8, 9, 10, 13 NOVEMBER 1967
Domicile – Abandonment of domicile of choice – Intention – Standard of proof – Whether absence of
intention to return sufficed or positive intention not to
return had to be established.

Given a person’s physical departure from the country of his domicile of choice, the ending of his
intention to return there, as distinct from the forming of any
positive intention not to return there, is sufficient to bring to an end that domicile, with the consequence
that his domicile of origin revives until ousted by the
subsequent acquisition of another domicile of choice; and the standard of proof of abandonment of a
domicile of choice is the standard of a balance of
probabilities not lightly inferred (see p 58, letterse and h, p 59, lettersh and i, p 61, letter h, and p 62,
letter b, post).
Dictum of Lord Hatherley LC in Udny v Udny (1869) LR 1 Sc & Div at p 450) applied.
Notes
Although the law on the question whether, when a testator who has acquired a domicile of choice
departs from the country of that domicile, it is necessary, for
the purpose of establishing abandonment of the domicile, to show that he had a positive intention not
to return, or whether it suffices to show absence of
intention on his part to return, was decided in the present case in the way stated above, yet on the facts
the court concluded that the testator had formed a
positive intention after 1952 not to return to California, which was the country where he had acquired a
domicile of choice by August, 1942 (see p 59, letter b,
post).
As to abandonment of domicile of choice, see 7 Halsbury’s Laws (3rd Edn) 17, 18, para 32; and for cases
on change of domicile, see 11 Digest (Repl)
326–334, 21–27; 328–331, 30–52.
Cases referred to in judgment
Evans, Re, National Provincial Bank v Evans [1947] Ch 695, [1948] LJR 498, 177 LT 585, 11 Digest (Repl)
358, 270.
Fuld (decd) (No 3), In the estate of, Hartley v Fuld (Fuld intervening) [1965] 3 All ER 776, [1966] 2 WLR
717, Digest (Cont Vol B) 126, 666a.
Indian Chief, The (1801), 3 Ch Rob 12, 11 Digest (Repl) 361, 296.
King v Foxwell (1876), 3 ChD 518, 45 LJCh 693, 11 Digest (Repl) 330, 48.
Marrett, Re, Chalmers v Wingfield [1886–90] All ER Rep 816, (1887), 36 ChD 400, 57 LT 896, 11 Digest
(Repl) 329, 40.
Udny v Udny (1869), LR 1 Sc & Div 441, 11 Digest (Repl) 326, 22.
Administration Action
By originating summons dated 20 March 1964, to which Theodore Thomson Flynn, his wife Morelle
Flynn, and Justin Merton Golenbock (executors of the
will of Errol Flynn, deceased) were defendants, the plaintiff Patricia Wymore Flynn, the testator’s widow
and an executrix of his will, claimed an account of
his debts and administration of his estate. Probate of the will of the testator was granted on 19 March
1964, to the plaintiff, and double probate thereof was
granted on 11 May 1964, to Mr Golenbock. By an order dated 3 December 1964, made in both actions
on summonses issued by each plaintiff an
administration order was made in respect of the testator’s estate, his widow admitting assets, and it was
ordered that all further proceedings in the second
action should be stayed. The administration order directed an inquiry where the testator was domiciled
at the time of his death. None of the other inquiries
and accounts directed by the administration order, save the account of what was due to creditors, was to
be prosecuted without the leave of the judge. The
question of the testator’s domicile thus came before the court pursuant to the inquiry so directed.
49
J W Mills QC and P G Clough for the plaintiff.
P R Oliver QC and J A R Finlay for the third defendant.
Cur adv vult
13 November 1967. The following judgment was delivered.
MEGARRY J read the following judgment. Errol Flynn was a film actor whose performances gave pleasure
to many millions. On 20 June 1909, he was
born in Hobart, Tasmania; and on 14 October 1959, he died in Vancouver, British Columbia. When he
was seventeen he was expelled from school in Sydney;
and in the next thirty-three years he lived a life which was full, lusty, restless and colourful. In his career,
in his three marriages, in his friendships, in his
quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of
film stars are not cast in the ordinary mould; and in
some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I
have to decide: Where was he domiciled at the date
of his death?
This question has arisen because some of his assets are in England and his two executors disagree as to
his domicile. On 3 December 1964, Pennycuick J
made a full administration order, directing certain accounts and enquiries to be taken and made. One of
these enquiries was as to his domicile; and the
importance of this is at least in part based on the fact that the debts recoverable out of the English
assets appear to differ substantially according to the
domicile. On 8 February 1967, Ungoed-Thomas J gave certain directions as to the evidence to be
adduced on this issue.
Of those directions I need mention only one. During the last year and a half of his life, Errol (as I shall call
him) wrote an autobiography which in
England was published shortly after his death under the title of “My Wicked Wicked Ways“. He wrote this
in collaboration with an American journalist and
author named Earl Conrad, who spent some ten weeks with Errol in the Titchfield Hotel, Port Antonio,
Jamaica in the autumn of 1958 working on the book.
One direction given by Ungoed-Thomas J related to this book. It was that the book was to be admitted as
evidence subject to Mr Conrad verifying the
statements in the book made by Errol; and this Mr Conrad duly did.
I have been referred to a number of specific passages in the book and I have also looked through it as a
whole. Errol would, I think, have been the last
person to claim that it was a serious study. It is plainly a book intended to entertain and to sell; and I do
not doubt that it has done both. I am not covertly
suggesting that what is said in the book is untrue; but truth is many-sided, and a wrong impression is
perhaps more often conveyed by what is omitted than by
what is said. Nor is it unknown that in the telling a story intended to entertain should grow and be
refined. The resemblance between a tombstone and an
autobiography may not be very close; but just as in lapidary inscriptions a man is not upon oath, so may
autobiographies, even though verified by the oath of a
collaborator, fail accurately to convey the truth, the whole truth and nothing but the truth, as the author
knows it. Accordingly I accept the book both as giving a general impression of an unusual man and as
containing the self-portrait which Errol wished the public to see. I accept it as containing many true
statements
of fact and intention, even if at times these are somewhat flamboyant and highly coloured. I would not,
however, accept it in toto without corroboration. As a
sexual athlete Errol may in truth have achieved Olympic standards; but the evident probability that this
was part of the public image which the book was
intended to foster (an image perhaps accentuated rather than weakened by his overt denials) inevitably
induces reservations in the reader. On the other hand,
in many matters there seems to be no reason for not accepting the substance of what is said, subject to
due allowance being made for the style and nature of the
publication and for the frailties inherent in the human recollections of a man who had lived a life such as
his. At least in the sphere of intention and state of
mind, an autobiography written near the end of a man’s life may be of assistance 50 in resolving
discrepancies between statements of intention which he is
alleged to have made to different people at different times; and I do not forget the perils which lie in
seeking too zealously for consistency of statement and
fixity of intention in one so mercurial as he.
The issue of domicile was argued before me in chambers during the latter part of last week, and I have
adjourned the case into open court for judgment.
The plaintiff, Mrs Patricia Wymore Flynn, is Errol’s widow. She was his third wife and is one of the two
executors appointed by Errol’s last will, made in
New York and dated 27 April 1954. This will was prepared for him by the third defendant, a Mr Justin
Merton Golenbock, who is an attorney-at-law
practising in the State and City of New York. In broad terms, counsel for the plaintiff contended for
Jamaica as Error’s domicile of choice, or failing that
Tasmania as his domicile of origin. Counsel for the third defendant, on the other hand, contended for
either California or New York, each as Errol’s domicile
of choice. I am indebted to them for their assistance; and as the case was argued in chambers, it may be
convenient if I state that in addition to the other
authorities which will be cited in this judgment, I was referred to the authorities noted belowa. I do not
think that I need say anything about these save that it
seems possible that the headnote to King v Foxwell may be misleading. It begins with the words—“In
order to change his domicile of origin, a man must … ”
Reading what Sir George Jessel MM said in its context, I do not find anything which supports the notion
that a man may change his domicile of origin so as to
replace it by another, different, domicile of origin. If the headnote began—“In order to change his
domicile from that of his domicile of origin, a man must …
”—this possibility of misunderstanding would be removed.
________________________________________

Bell v Kennedy (1868) LR 1 Sc & Div 307, Re Craignish [1892] 3 Ch 180, Douglas v Douglas
(1871) LR 12 Eq 617, Gatty v A-G [1951] P 444, Harrison v Harrison [1953]
a
1 WLR 865, Henderson v Henderson [1965] 1 All ER 179, [1967] P 77, King v Foxwell (1876)
3 ChD 518, Moorhouse v Lord (1863) 10 HL Cas 272, Winans v A-G

[1904–07] All ER Rep 410 [1904] AC 287.

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With the evidence in the form directed by Ungoed-Thomas J I am satisfied, subject to one qualification,
that the evidence now before me suffices to
determine the issue and that it is unnecessary to direct further enquiries. In one sense there is no end to
the evidence that may be adduced; for the whole of a
man’s life and all that he has said and done, however trivial, may be prayed in aid in determining what
his intention was at any given moment of time. The
state of a man’s mind may be as much a fact as the state of his digestion; but, as Harman LJ is reputed to
have observed, “the doctors know precious little
about the one and the judges know nothing about the other“. The difficulty is as old as the Year Books
and the celebrated dictum of Brian CJ in 1477, uttered
in theological terms which have waned in fashion: “Le Diable n’ad conusance de l’entent de home”b. All
that the court can do is to draw inferences from
what has been said and done; and in doing this, too much detail may stultify.
________________________________________
b
Year Book, 17 Edw 4, Easter, fo 2, pl 2.
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The one qualification that I make is in relation to Errol’s domicile of origin. This, of course, is determined
by the domicile of Errol’s father when Errol
was born in Hobart on 20 June 1909. His birth was registered there on 31 July 1909. The Registrar of
Births described his father as “Lecturer in Biology”,
and his father’s affidavit filed on 23 November 1965, describes his own position thus:
“I was born in Coraki, New South Wales, Australia on Oct. 11, 1883, of parents born and domiciled in
New South Wales where I lived during my
infancy. I graduated from Sydney University in 1906 and in 1908 I married the second defendant. In 1909
I left New South Wales to take up a
lectureship in the biology faculty of the University of Tasmania in Hobart and in 1911 I was appointed
Ralston Professor of Biology at the same
university. 51 I held the Ralston professorship until 1931 and between 1909 and 1931 I had my home in
Tasmania, although I was engaged in
research work at London University between 1920 and 1924 and again from about the middle of 1930 to
about the middle of 1931.”
As counsel for the third defendant pointed out, it seems that Professor Flynn went from New South
Wales to Hobart only shortly before Errol’s birth, and there
is nothing to show what the state of mind of Professor Flynn was or had been then. Did he go to Hobart
intending to make his home there and acquire a
domicile of choice in Tasmania before Errol was born; or did he take up his lectureship without the
animus manendi necessary for the acquisition of a domicile
of choice, and form that intention only after Errol’s birth? The probability, I think, is that Errol’s domicile
of origin was Tasmanian; but I see no reason to rely
on mere probability when it seems so likely that the point may easily be resolved. Professor Flynn,
though no longer young, is happily still living; and I have
little doubt that even at this distance of time he can remember the circumstances of so important an
event as his first teaching appointment. I accept counsel
for the plaintiff’s suggestion that the matter may be dealt with by referring the point back to the master
in chambers if it becomes necessary to decide it. In
view of Professor Flynn’s age and the possibility that, whatever my decision, the point may hereafter
become material, I direct that such an affidavit be
obtained and filed in any event. I do not at this stage refer the point back to chambers.
If Errol’s domicile of origin was Tasmanian, then it was clearly his domicile of origin in truth and in
substance, and not merely in law; for he spent the
first eleven years of his life in Hobart with his parents and Hobart must have been the first real home he
ever had. I say this because, of course, domicile of
origin may sometimes be a purely technical concept, with no foundation in substance. A legitimate child
automatically takes as his domicile of origin the
domicile which, at the moment of his birth, is his father’s domicile. Thus a father may leave his wife
enceinte and go to make a new home in a new country
before sending for his wife and child to join him. They may never come; yet that child will have as his
domicile of origin a country which he has never seen
and has no real connection with. There are many authorities which establish that a domicile of origin is
more durable and more difficult to change than a
domicile of choice; and it is trite law in England (though not in most jurisdictions in the United States of
America) that if one domicile of choice is abandoned
without another being acquired, the domicile of origin revives. During the course of the argument I
enquired whether this doctrine extended to what I may call
a purely technical domicile of origin or whether it is confined to a domicile of origin which is bottomed in
reality; and it did not appear that there was authority
on the point. The facts of this case make it unnecessary for me to explore this possibility; and I obey the
high authority which proclaims that it is the duty of a
judge to send forth into the world not doubts, but decisions.
The main events of Errol’s life are conveniently summarised in two exhibits, DHAN 19 and PTT 2,
exhibited to the affidavits of the Hon David Henry Arthur Nicolson and Mr Philip Temple respectively and
filed on behalf of the plaintiff and the third defendant respectively. Exhibit DHAN 19 covers the
whole of Errol’s life in outline whereas PTT 2 covers the last seven years of his life in some detail. Mr
Nicolson is a partner in the firm of solicitors acting for
the plaintiff; Mr Temple is an attorney-at-law in the firm in New York in which the third defendant is a
partner. I accept both these documents for what they
purport to be, namely, convenient summaries. As I observed during argument, exhibit PTT 2 has in places
a somewhat tendentious aspect. Thus on the last
page the word “live” (in phrases such as “living at” or “lives in”) is reserved exclusively for places in New
York, in apposition to which it appears five times;
other places, including Jamaica (which of course is a rival to New York on the 52 issue of domicile)
attract only phrases such as “goes to” or “in“. I have
discounted exhibit PTT 2 accordingly.
From these documents and the other evidence I find that the course of Errol’s life after his first eleven
years was as follows. From eleven to fifteen he
was at school in London, when Professor Flynn was engaged in research at University College, London.
The family (including Errol) returned to Hobart in
1924, and Errol was sent to school in Sydney, New South Wales, where he remained for two years. In his
father’s words, as a boy, Errol “revealed an
adventurous and impetuous spirit which was responsible for the premature termination of his school
life”; and, he adds, “in adult life he remained impetuous
and irresponsible being seemingly incapable of settling down in any one place. His emotional
relationships with women were numerous but not enduring, and
although he achieved great success as a film actor in Hollywood, California, for some years his manner
and scale of living were such that he never managed to
conserve his very substantial earnings“.
His boyhood ended, Errol spent some seven years of his adolescence and his early manhood wandering
in Australasia and the Pacific, with a substantial
period in New Guinea. He spent much time on his yacht and indulged the love of the sea which never
deserted him. In 1931, Professor Flynn was appointed
Professor of Zoology at Queen’s University, Belfast and left Hobart for good; and in Belfast he remained
until he retired in 1947. Errol ultimately came to the
United Kingdom in 1933, and apart from some periods with his parents in Belfast he was principally
engaged in a repertory theatrical company in
Northampton, where he spent some eighteen months. He also had some parts in plays at the Malvern
Festival and in the West End of London. In 1935, when
he was twenty-five or twenty-six, Warner Brothers offered him a six months’ contract in Hollywood. He
accepted this; and the career which was to engage
him for the rest of his life had begun.
On the Atlantic crossing he met an established film star known as Lili Damita. In June, 1935, he married
her in Yuma, Arizona, and for some eight years
their tempestuous marriage endured. Until 1938, Errol lived in Hollywood, more or less together with his
wife. He spent part of 1938 as a war correspondent
in Spain, partly to escape her. Later in the year he returned and in New York was temporarily reconciled
to his wife. After a cruise in the Caribbean together
they returned to Hollywood, but lived apart. Even in the act of living apart Errol was not as other men;
for he and his wife, though in separate establishments,
came together from time to time: and on 10 May 1941, their son was born. During that year he had a
house built for him to his own design, Mulholland
House (or Mulholland Farm, as his notepaper described it); this was at No 7,740 Mulholland Drive,
Hollywood, and it became his home, though not his wife’s.
In August, 1942, he became a naturalised citizen of the United States of America.
In my judgment, by this time Errol had acquired a domicile of choice in California. So far as he ever
settled anywhere he had settled there. His home,
his work, his new nationality, his life in the film world, his wife (in law, though only intermittently in fact)
and his only child, were all there; and Hollywood
has never been deficient in what was then, as always, one of Errol’s great interests in life, namely, a
generous pool of available pulchritude.
On 6 April 1942, a few months before Errol was naturalised, his wife obtained an interlocutory judgment
for divorce from him in the Superior Court of
the State of California; and a year later, on 7 April 1943, a final judgment of divorce was granted
providing for substantial periodical payments to his former
wife for alimony and child support. On 14 September 1944, he married his second wife, Nora Eddington.
This from the start was a marriage after Errol’s
fashion. The ceremony was performed by proxy in Mexico; he also bought a separate house for her in
Hollywood, so that from the outset they never lived
together in any save an intermittent sexual sense. Her stepmother acted as Errol’s housekeeper 53 in
Mulholland House, and man and wife met each other
from time to time by arrangement. Of this second marriage, two daughters were born, one in January,
1945, and the other in March, 1947.
Meanwhile the war had ended and Errol had bought the yacht Zaca, which was to be his for the rest of
his life. On a cruise in her in 1946 or 1947, bad
weather made him put into Jamaica; and at once he fell in love with the island. Indeed, this was perhaps
the most enduring love of his life; and counsel for the
third defendant made no attempt to dispute the indisputable, but fully acknowledged it. Almost at once
Errol began buying property in Jamaica. He bought
Navy Island, in the harbour of Port Antonio on the north-east coast of the Island, and on 11 February
1947, wrote a glowing letter to his parents about the
“dream spot” that he had bought and urging them to come to it and “live like kings“. He was not forgetful
of the return that the island could bring from crops,
sheep, cattle and chickens; but nobody could read his letter as being dominated by economics. Later that
year he bought a larger estate, the Boston Estate, for
£33,000; and on 22 September 1947, he again wrote to his father a letter of enthusiasm, which obviously
related to a visit which his parents were to make to
Jamaica. Shortly afterwards his parents in fact came to Jamaica; and for ten years they lived on Errol’s
property there, in Boston Great House. His father
helped to manage Errol’s estates in Jamaica, which included two houses and various outbuildings and
were substantial in extent. Professor Flynn put them at
some 2,300 acres; Errol (at p 344 of his book) at five thousand acres.
On 27 March 1950, the Superior Court of the State of California established as a foreign judgment in the
State a judgment of divorce between Errol and
his second wife, given in the neighbouring State of Nevada on an unspecified date; this no doubt was in
obedience to the “full faith and credit” clause of the
Constitution of the United States of America, Art Iv, s 1. Six months later, on 23 October 1950, he
married his third wife, the plaintiff, in a civil ceremony in
Monte Carlo; but he was still making films in Hollywood and elsewhere for Warner Brothers. In June he
made a film for the company in England, leaving
Mulholland House in the care of his housekeepers. Not long after this, in 1952, he quarrelled with
Warner Brothers and his contract with them was terminated
by mutual consent. He went with the plaintiff to Italy and made a film called “Cross Swords” for his own
and another company; and he was by then fully
aware of the tax advantages under the United States law for those who resided outside the United States
for seventeen out of any eighteen consecutive months.
He then began the production in Northern Italy of a film called “William Tell”, in which he sank much of
his own money; but this production ran out of funds
(owing, he says in his book, to the default of his business associates). Much of 1953 and some of 1954
was spent first in making part of this film and then in
unsuccessful attempts to raise the money needed to complete it; and he and his wife spent much time in
Rome. At about this time an income tax assessment
for over eight hundred thousand dollars was made on him by the United States authorities; and he
ascribes this to malversation by a former business manager
of his, who had just died.
At this stage Errol’s financial position was indeed precarious. He no longer had a salary from Warner
Brothers; much, if not most, of his own money was
tied up in the incomplete “William Tell”; and he faced a heavy claim for income tax in the United States
of America. Further troubles were to follow: for his
first wife had claims against him for arrears of payments for alimony and child support, which ultimately
led to her purchasing Mulholland House in a
foreclosure sale on 18 November 1954. A year later the time during which Errol could redeem the house
expired; and after negotiations during 1955 an
agreement between Errol and his first wife made on 16 February 1956, settled her claims. Under this
agreement he relinquished all claims to the house but
became entitled to keep certain items of personal property and furnishings (then stored in warehouses
in Los Angeles) which his third wife, the plaintiff,
selected. Meanwhile, 54 on Christmas Day, 1953, Errol had a daughter by the plaintiff in Rome. He was
now doing sporadic work on films and television in New York, Brazil and elsewhere; but much of his time
was spent cruising and living in the Mediterranean and Caribbean. From 14 March to 26 April 1954,
he and his wife and daughter were living on his estate in Boston House, in the suite which he had
reserved for himself there. On this I prefer the evidence of
his father, who was there, to the evidence of the third defendant and Mr Temple, who were not. During
that visit Errol sold the Titchfield Hotel in Jamaica,
which he had bought many years before; and as part of the transaction of sale he reserved the right to
free room and board whenever he chose to stay at the
hotel. During that period, on 18 April Errol and the plaintiff had their daughter baptised at St Mark’s
Church, Boston, in Jamaica.
On 27 April 1954, the day after he left Jamaica, Errol executed his will in New York. It is in American form
to the extent that the phrase “in the event
that” is used throughout as a substitute for “if“. It begins by stating that he is a citizen of the United
States of America, “presently residing in and domiciled in
the Republic of Italy“. Nobody, however, attaches much weight to this recital of domicile; and I attach
none. He had no settled home in Italy, and apart from
the wonderful setting he had for “William Tell” in Courmayeur at the head of the Aosta Valley in
Northern Italy, hard up under the Alps, I can find nothing to
give him any enduring interest in living in that country; The recital is at least consistent with his desire to
mitigate his liability for further income tax in the
United States of America; and I accept the third defendant’s statement on this point in para 9(8)(a) of his
first affidavit. Nor, may I add, do I attach the least
importance to the recital in the Monaco Register of Acts of Marriage that on Errol’s marriage to the
plaintiff on 23 October 1950, he was “demeurent et
domicilié à Monaco“. They were at the time living on his yacht, the Zaca; and any confidence in the
accuracy of this entry in the register is sapped by the
statement in the same document that Errol’s parents were “domiciliés à Mulholland (Etats Unis
D’amerique)“. Even if “Mulholland, USA.” were a sufficient
and accurate address, Errol’s parents had for some years been living thousands of miles away in Jamaica.
Statements of this kind, made for an immediate and
limited purpose, and sometimes with the attention of all concerned directed mainly to other matters,
cannot be expected always to reflect the ultimate verities.
Between April, 1954, and the final agreement with his first wife on 16 February 1956, Errol’s life was
mainly one of films and television. He was in
New York, England, Rome, Paris, North Africa, Monte Carlo, England again, back in Monte Carlo,
Barcelona, back in England, Palma, New York again,
Palma and France, back in New York once more and then, in January, 1956, in Hollywood. After that he
returned to England, and after two days in the USA
he made a film in Cuba. Then he came back to England and some while later returned to Palma. During
this period, Errol began to encounter difficulties with
his passport and his nationality. Subject to certain qualifications the law was that a naturalised United
States citizen lost his nationality if he had “a continuous
residence for five years in any other foreign state or states”: United States Code, Title 8, ch 12, s 1484.
The United States passport authorities naturally
concerned themselves with this provision, and renewals of passports were limited so as to reflect it. The
upshot of various negotiations with the authorities,
conducted by Errol and the third defendant, was that in order to preserve his nationality Errol had to
return to the United States of America not later than 1
October 1957. If the thoughts of income tax impelled Errol abroad, thoughts of nationality drew him
back to the United States. The international pattern
exhibited by the first nine months of 1957 was thus not continued into the last three.
From the beginning of 1957 until the end of September, Errol had continued in films, television and other
activities, going to New York, the western parts
of the United States, Mexico, Dominica, New York, Washington, France, Palma, 55 West Berlin, Palma,
France, Palma, New York, Dominica, France,
Palma and England. On 1 October he was back in New York staying in Mr Huntington Hartford’s
apartment; soon he went to California again for film and
television work, staying at the Huntington Hartford estates in Los Angeles. By then his marriage to his
third wife, the plaintiff, was in difficulties. The year
1957 had also seen a change in Jamaica, for after ten years there his parents had returned to England,
leaving behind them some of their furniture, books and
other possessions in Boston Great House on his estate.
The year 1958 opened with a stage play by Mr Huntington Hartford, The Master of Thornfield, with Errol
rehearsing it in New York and then taking part
in try-out performances in Detroit and Cincinnati. He then left the play and returned to films. He spent
some three months in the spring in filming in Africa
on a temporary passport and then a month in Paris for further filming. He next went to Jamaica for some
ten weeks (including the months of August and
September); he went with Mr Earl Conrad, both of them staying at the Titchfield Hotel: and for some
three weeks of that period his sister, Mrs Warner, was
there too. He had wanted to stay at his own house, Boston Great House; but that had been left by his
parents over a year before, and was not in a suitable state
for occupation. During this period in Jamaica, he was working on his autobiography with Mr Conrad, who
was his collaborator; and while he was there
Boston Great House was burned down. On this, I prefer the evidence of Mr Conrad and Mrs Warner, who
were there, to that of the third defendant who was
not, but says that the house was burned down in the previous year. In addition to his work on his book
he was actively engaged in finding a suitable site for a
house which he wished to build for himself. Boston Great House was to be for his parents, whom he
hoped would return to Jamaica.
After a month or six weeks in New York, Errol went to Cuba for six weeks, returning to New York on 10
January 1959, and staying in an apartment there
until in February he went back to Cuba to make a film. While in Cuba he was seeking to arrange for his
furniture to be sent from California to Jamaica; to this
I shall return. After some three months in Cuba he has a few days in New York and a few more in Miami,
and then went back to his property in Jamaica for a
month or so during May or June. He next spent six weeks in New York and over a month in California
rehearsing for the “Red Shelton Show”, in which he
duly appeared. On 10 October, he went to Vancouver to arrange the sale of his yacht Zaca, and four days
later he died suddenly.
On these facts, the first question is whether Errol ever lost the Californian domicile of choice which in my
judgment he had acquired by August, 1942.
There is no dispute that this domicile could be lost either by abandonment or by the acquisition of a new
domicile of choice; but a curious point has arisen as
to the intention required for abandonment. Given the necessary factor of a physical departure from the
country of domicile, is it necessary to demonstrate that
the departure was animo non revertendi, or does it suffice if it was since animo revertendi? In other
words, is it necessary to establish a positive intention not
to return to reside in the country, or will it suffice if there is a merely negative absence of any intention
to continue residing there? No doubt in the great
majority of cases it will make no difference; but sometimes it may. A devoted daughter who has looked
after her aged mother for many years may, when her
mother dies and the family home is sold, leave England in order to tour the world and make up her mind
whether to settle elsewhere or whether to return to
England. It cannot be said that she leaves animo non revertendi; but she leaves sine animo revertendi.
Has she abandoned her English domicile?
The point has been argued before me at some length, and although on the facts of this case as they
appear to me I do not think that it makes much
difference which test is applied, I think that I should express my views on the point. The books and the
authorities speak with divided voice. Dicey and
Morris on the Conflict of Laws (8th Edn, 1967) in r 10(1) lays down the less stringent 56 rule; the
statement is that “a person abandons a domicile of
choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or
indefinitely, and not otherwise.” This repeats the rule as
it was in the 7th Edn of Dicey, p 112, where it appeared for the first time as a rule, constructed out of the
material contained in the commentary in the 6th Edn
to r8 in that edition. On the other hand, there appears to be much support for the more stringent
version. Thus Cheshire’s Private International Law (7th Edn
1965) p 162 seems to support it. This states:
“Since a domicile of choice is voluntarily acquired animo et facto, so it is extinguishable in the same
manner, i.e., merely by a removal from the
country animo non revertendi and even without acquiring a fresh domicile.”
Then 7 Halsbury’s Laws Of England (3rd Edn), in the part contributed by Wynn-Parry J and Mr McMaster,
seems also to support it. At p 178 para 32, it is stated that
“A domicile of choice continues until it is abandoned; it may be retained by residence alone, although an
intention to abandon it has been formed, or
by an intention to return, although the residence has been temporarily interrupted. It is divested only
when the country of domicile has been actually
abandoned with the intention of abandoning it for ever, and this process is the exact converse of the
process of its acquisition.”
Some of the cases are in this form. Thus in Re Marrett, Chalmers v Wingfield ([1886–90] All ER Rep 816
at p 818, (1887) 36 ChD 400 at p 407.), Cotton LJ
said that
”… in order to lose the domicile of choice once acquired, it is not only necessary that a man should be
dissatisfied with his domicile of choice, and
form an intention to leave it, but he must have left it, with the intention of leaving it permanently.”
Again, in In the Estate of Fuld (decd) (No 3), Hartley v Fuld (fuld intervening) ([1966] 2 WLR 717 at p 725.),
Scarman J speaks of a man leaving the territory
of his domicile (it was there a domicile of origin) “with the intention of never returning”, a phrase which I
think must be read sub modo and as relating merely
to an intention of never returning to live there, as distinct from returning on a visit. Even so, this
supports the more stringent rule. In the next sentence of the
judgment however, the judge speaks of a man abandoning a domicil of choice in a country “because he
no longer intends to reside there indefinitely”; and this
supports the less stringent rule.
I turn to the leading case of Udny v Udny. There the language used fluctuates. Lord Hatherley LC spoke of
((1869) LR 1 Sc & Div at p 448.) “the
intention not to return” and ((1869) LR 1 Sc & Div at p 450.) “the intention to abandon the new domicil”
and also of the animus being ((1869) LR 1 Sc & Div
at p 452.) “that of never returning“. Yet, he quoted ((1869) LR 1 Sc & Div at p 451.), apparently with
approval, the phrase used by Sir William Scott in The
Indian Chief ((1801) 3 Ch Rob 12 at p 21.), of a man putting himself in motion “bona fide to quit the
country sine animo revertendi“. Lord Chelmsford
((1869) LR 1 Sc & Dib at p 454.) repeated the same phrase immediately after referring to a person
carrying out his intention “by removing animo non
revertendi“. In appraising the facts of the case ((1869) LR 1 Sc & Dib at p 456.) he spoke of Colonel Udny
giving up his house in London and returning to
Boulogne “where he remained for nine years without any apparent intention of again taking up
residence in England“. Lord Westbury ((1869) LR 1 Sc & Dib
at p 459.) took as an illustration a man domiciled in Holland who “quits Holland, declaring that he will
never return to it again“. When he considered the facts
of the case, he spoke of Colonel Udny ((1869) LR 1 Sc & Div at p 460.) “leaving London in a manner 57
which removes all doubt of his ever intending to
return there for the purpose of residence“.
So far as mere words are concerned, the cases are inconclusive. As I have said, in most cases it will not
matter which test is applied, and where this is the
case the different phrases may have been used interchangeably. Any case in which there is a departure
animo non revertendi will be a fortiori; and the facts of
Udny v Udny certainly did not require a decision on the point. But I think that Udny v Udny nevertheless
establishes a principle by which the true rule may be
determined. Lord Hatherley LC said ((1869) LR 1 Sc & Dib at p 450.):
“It seems reasonable to say that if the choice of a new abode and actual settlement there constitutes a
change of the original domicile, then the exact
converse of such a procedure, viz., the intention to abandon the new domicile, and an actual
abandonment of it, ought to be equally effective to destroy
the new domicile. That which may be acquired may surely be abandoned, and though a man cannot, for
civil reasons, be left without a domicile, no
such difficulty arises if it be simply held that the original domicile revives.”
Acquisition and abandonment are correlatives; in Lord Westbury’s words ((1869) LR 1 Sc & Div at p 458.),
“Domicile of choice, as it is gained animo et
facto, so it may be put an end to in the same manner“. When animus and factum are each no more,
domicile perishes also; for there is nothing to sustain it. If
a man has already departed from the country, his domicile of choice there will continue so long as he has
the necessary animus. When he no longer has this, in
my judgment this domicile of choice is at an end, for it has been abandoned; and this is so even if his
intention of returning has merely withered away and he
has not formed any positive intention never to return to live in the country. In short, the death of the old
intention suffices, without the birth of any new
intention. In this way abandonment dovetails in with acquisition. It follows that in my view the true rule
is correctly stated in Dicey and Morris on the
Conflict of Laws (8th Edn, 1967) r 10(1).
In considering the evidence of abandonment I bear in mind the words of Wynn-Parry J in Re Evans,
National Provincial Bank Ltd v Evans ([1947] Ch
695 at p 707.). In order to establish the abandonment of a domicile of choice, he said, “it is essential to
demonstrate that abandonment by unequivocal
intention and act.” Many acts and declarations are indeed equivocal; and evidence which establishes
that a man was or might have been in two minds does not
show an unequivocal intention.
I have also to bear in mind the standard of proof required; it is not questioned that the burden of proof
lies on those who assent that a change of domicile
has taken place. In In the Estate of Fuld (decd) (No 3) ([1966] 2 WLR at p 726.), which I have already cited,
Scarman J had to consider the abandonment of a
domicile established by a domicile of origin; and he rejected any requirement of proof beyond
reasonable doubt. The standard of proof is, I think, the civil
standard of a balance of probabilities, subject to the overriding consideration (which I borrow from the
judgment of Scarman J) that so serious a matter as the
acquisition of a domicile of choice (or for that matter, I think, the abandonment of a domicile) is “not to
be lightly inferred from slight indications or casual
words“.
With these consideration in mind, I feel no doubt that Errol’s Californian domicile of choice persisted
until 1952, but that at some time thereafter it
ended. After the breach with Warner Brothers in 1952, he left California and did not return to it, at any
rate for any substantial period, until 1956. During
these four 58 years he was in monetary difficulties and anxious to escape the financial clutches of his
third wife, who was still in California. He may
indeed have retained some indefinite idea of returning to California one day when he had resolved his
difficulties; for he seems to have made no effort to
dispose of his house there. But after his first wife had purchased his house on 18 November 1954, and
then a year later the time for redeeming it had expired,
his last link with California had gone. The final settlement with his first wife on 16 February1956, seems
to have made it possible for him to return to
California without peril from her; but thereafter his only substantial visits to California seem to have
been for film and television work. I think that during
those years an absence of any intention to return to California as a home had ripened into a positive
intention not to return to California. Certainly this was so
a year or two later. The third defendant deals with the matter in his affidavit; he states:
“Upon the testator’s return to the United States in 1957, it became necessary for him to adopt a
permanent place of residence in the United States.
The testator informed me that he had decided that he would not return to California because of the fact
that the and Mrs. Flynn had already become estranged [I pause there to say that “Mrs. Flynn” there
plainly means the plaintiff in this case, Errol’s third wife]. California is a so-called ‘community
property’ State in which a wife is entitled to share one-half in all of a spouse’s earnings and the testator
was concerned that were he to go back to
California, he would increase his financial problems with his estranged wife. In addition, the testator was
concerned, and he so informed me, that were
he to return to California, he would be in jeopardy by reason of the number of creditors which he had in
California.”
The third defendant goes on: “Accordingly, the testator, as he informed me, determined in October,
1957, to adopt New York as his residence and domicil”:
to that last sentence I shall have to return shortly. Mr Barry Mahon, who was Errol’s personal business
agent and manager from 1952 or 1953, and a film
producer, also refers to the matter. He says:
“During the latter part of 1957, after he had returned to the United States, the decedent told me that
New York was the most likely place to make his
home. He was separated from his wife, Patrice Wymore Flynn, and their daughter and did not want to
suffer under the California community property
law.”
Mr Earl Conrad was emphatic in his evidence; he said:
“The only place he ever specified as being totally anathema to him was Hollywood which he hated and
viewed only as a necessary evil in making
pictures and making money.”
Accordingly, in my judgment Errol abandoned his Californian domicile at some time in the period 1952 to
1956. If the mere absence of any animus revertendi
suffices (as I think it does), I hold that the change occurred when he left Warner Brothers and went to
Italy, and this seems to have been in October, 1952. If,
contrary to my opinion, a positive intention not to return is requisite, I think that intention was formed
when he heard of his first wife taking his house in
November, 1954. Whichever the date, his domicile of origin, which in all probability was Tasmanian but
might, as I have mentioned, have been in New South
Wales, thereupon revived.
Did Errol thereafter obtain a domicile of choice, and if so, where? Counsel for the third defendant
contended for New York and prayed in aid the third
defendant’s evidence in particular. I do not think that this contention is right. Apart from a short
subtenancy of an apartment in New York which he had in the
spring of 1959, he seems to have spent his time there in a variety of hotels, or staying in Mr Huntington
Hartford’s apartment there. His visits all seem to have
been connected with actual or prospective appearances on television, the stage or films 59 and, of
course, obtaining advice from the third defendant. There
is nothing which suggests to me that Errol ever had any present intention of a permanent or indefinite
residence in New York. To Mr Mahon he spoke
prospectively:
“During the latter part of 1957, after he had returned to the United States, the decedent told me that
New York was the most likely place to make his
home.”
True, there is the declaration which the third defendant says that Errol made to him in October, 1957;
but one must remember the circumstances in which this
was made. The third defendant was acting for Errol in the negotiations with the authorities over his
passport and citizenship; and whatever Errol’s true
intentions were, he could not afford to embarrass the third defendant with the knowledge that he meant
to live in neither California nor New York nor any
other part of the United States. I accept that Errol made this declaration but I nevertheless, without
disregarding it altogether, treat it with great caution,
standing as it does with little or no extraneous indication of intention to support it. In this approach I
adopt the attitude which Scarman J took towards a
declaration made by Mr Fuld to the tax authorities in In the Estate of Fuld (decd) (No 3) ([1966] 2 WLR at
p 731.). I think that Mr Conrad is right when he
said, speaking of a period nearly a year later:
“To the best of my knowledge and belief the testator had no intention of ever living permanently in the
United States or in England. He regarded
New York City as a place that for him spelled violent living and which he hated and from which he was
always in a hurry to depart.”
I bear in mind, of course, that Mr Conrad is a wholly independent witness. Accordingly, I hold that Errol
never became domiciled in the State of New York.
I turn, then, to Jamaica. Errol’s love for the island has not been questioned and is, I think,
unquestionable. Yet he made his first acquisitions there when
he was, as I have held, still domiciled in California; and counsel for the third defendant has pointed to a
number of passages in the evidence which indicate that
Errol regarded his estate there as an investment, a holiday home and a place for his ultimate retirement.
I think that in this counsel is probably right; but I do
not think that it is the whole picture. For it is possible for property acquired for these purposes
nevertheless also to become the owner’s present home at some
later date. The question is whether that is what happened here.
Counsel for the third defendant has very properly emphasised the limited periods of time which Errol
actually spent in Jamaica. In the last two years of
his life, he was there for some ten weeks in the late summer and early autumn of 1958, and again for a
month in the summer of 1959. I agree that such visits
are consonant with holiday visits and with the inspection and management of his property as an
investment. But during this period two events occurred on
which counsel for the plaintiff strongly relied. First, Errol embarked on the building of a house on his
Jamaican estate. It was no ordinary house, but one
which the architect, Mr Tamminga, designed on Errol’s instructions to meet his detailed requirements on
matters such as the siting of his bedroom and the
swimming pool, and the provision of a storage vault with humidity control for Errol’s films. The final plan
of the house was dated 23 January 1959, and Errol
personally guaranteed the cost up to sixty-five thousand dollars, though technically the house was
owned by a company. When he died, this house was still in
course of erection. Secondly, in the spring of 1959 Errol was trying to have some furniture and effects of
his still in California sent to Jamaica. Counsel for
the third defendant stresses that Errol’s motive was to get the furniture and effects out of the potential
clutches of his third wife, the plaintiff. “Now is the time
to spring all this stuff”, wrote Errol in a letter dated 30 March 1959. There is, I 60 think much force in
this. But human motives are often complex, rather
than single and undivided. The motive for getting the furniture out of California may well have been this;
but the fact remains that the furniture was to go to
Errol in Jamaica, and not into storage elsewhere.
It seems to me that Errol had gradually come more and more to treat his property in Jamaica as his
home as well as an investment, a holiday home and a
place to retire to. By 1958, the greater part of his possessions were concentrated there. Much was at
Boston Great House. His sister, Mrs Warner, says:
“My brother kept a considerable amount of personal property and effects at Boston Great House against
the time when he would have his permanent home in Jamaica. In the guest room at that house there
were stored clothes belonging to both his wife and himself. A part of the furniture and
furnishings at Boston Great House also belonged to my brother and in the locked storage rooms under
the house he kept his deep-sea fishing equipment,
saddles, much wine and imported tin goods. Also belonging to him at Boston Great House were many
pictures, books and some nice old things he had
picked up abroad and which he thought would suit a home in Jamaica and which he was keeping there
for that purpose. One incident I remember
vividly is that at one time around the end of 1957 or the early part of 1958 one of the crates in his house
broke open revealing an old copper measuring
vessel. Rather than to leave such an easily stolen article unguarded, I brought it back to Washington, D.C.
with me. When I told my brother what I had
done he was quite put out and told me that he would expect me to bring it back to him in Jamaica when
his house was built. On many occasions my
brother told me that he planned to settle permanently in Jamaica and to spend the rest of his life there.
He said he loved everything about that island
from the first moment he saw it. In the summer of 1958 he told me he was making all the necessary
arrangements to move to Jamaica permanently and
that the balance of his furniture and his personal property that was not already in Jamaica was being
created to be shipped there. My brother also
discussed plans with me to erect guest cottages for his family on his estate at Boston, Port Antonio, so
that they could visit him. He also told me that he
ultimately wanted to be buried in Boston Church in Port Antonio. My brother loved the outdoor informal
life. He disliked cities where he had to dress
and, as before stated, he did not care for hotels. He told me he had no intention of ever living in
California or New York; in fact, he said he loathed New
York City and the life there. I also knew that my brother had many tax problems in the United States
which kept him out of that country.”
His father’s evidence is similar; and in Mr Conrad’s expressive phrase “legally, spiritually, actually he
viewed Jamaica as his place, his home, his spot“.
The totality of the evidence satisfies me that probably by August, 1958, and certainly by the time of his
last arrival in May or June, 1959, Jamaica had
become Errol’s home and that he was domiciled there. His Jamaican domicile thereupon ousted his
domicile of origin. His work might continue to take him
to many parts of the world for long periods; but Jamaica had become his centre of gravity. What at first,
while he was still domiciled in California, may
merely have been an investment, a dearly loved holiday resort and possibly a place of future retirement
had in addition, when he had abandoned his
Californian domicile, become his permanent home. Indeed, it would have been strange if, loving the
place as he did, Errol had not regarded it as his home
when he had no other, and was making and putting into effect such expensive plans for erecting a house
there to his exact specification. Why should he shrink
from treating as his present home a place which he loved and which had long been his holiday resort and
perhaps the home to which he would in time retire?
His professional engagements might be relied upon to keep him in the United States for sufficient
periods 61 to satisfy the authorities in regard to his
nationality and his passport; and in Jamaica he could have all this, and haven too. During his absences he
may well have intended to let his new house to
visitors as the third defendant says. That, however, is in no way inconsistent with its being his home, but
might well be an economic recognition of the life he
was leading and the state of his finances.
Accordingly I answer the inquiry by saying that at the time of his death Errol was domiciled in Jamaica.
Solicitors: Clifford-Turner & Co (for the plaintiff); Harbottle & Lewis (for the third defendant) D988C01:.