Why Where You Live Matters for Estates Law

Ian Keay

June 5, 2026

The Importance of Where You Are Domiciled

When someone dies, one of the first questions that may need to be answered is: Where was this person legally considered to live? In legal terms, this is called a person's domicile.

 

A domicile is more than just where someone happens to be living. It is the place that is considered their true, permanent home.  It’s common for a person to own homes in different places, spend time in several provinces or countries, and even have residences in more than one jurisdiction. However, at any given time, they can have only one domicile.

 

Many estate administrators assume a person's domicile is obvious and move on without giving it much thought. However, in today's world, people often divide their time between multiple locations, making the issue more complicated than it once was. Determining a person's domicile at the time of death can be very important. For example, it may determine:

 

  • Whether a will is legally valid
  • Which province's or country's estate laws apply
  • How assets are distributed if the person died without a will

 

Ontario's Succession Law Reform Act uses the concept of domicile in several situations, but it does not define the term. As a result, courts rely on legal principles that have developed over time.

 

Types of Domicile

 

There are two main types of domicile that arise in estate matters:

 

1.   Domicile of Origin. Every person receives a domicile of origin at birth. This is usually based on their parents' domicile.

 

2.   Domicile of Choice. Later in life, a person may establish a domicile of choice by making a new place their permanent home. 

 

How Does Someone Change Their Domicile?

 

The law assumes that a person's domicile of origin continues unless there is clear evidence that it has been replaced. To establish a new domicile of choice, two things must be shown: (1) Actually living in the location, and (2) A settled and fixed intention to make the location their permanent home - see Taylor v. Taylor, 1929 CanLII 65 (SCC).

 

The first requirement is usually straightforward. The second is often much harder to prove. Courts look at the person's overall circumstances to determine whether they genuinely intended to settle permanently in the new location. No single factor decides the issue. Evidence may include:

 

  • Statements the person made about where they considered home;
  • How long they lived in the new location;
  • Whether they kept or sold property in their former home jurisdiction;
  • Whether they bought or rented a residence in the new location;
  • Their immigration or residency status;
  • The reasons they moved.

 

Someone who relocates for a temporary work assignment may not necessarily have changed their domicile. Or moving a loved one to a care facility in a different county or province could be a move dictated by circumstance. What if there is an intention to return? Compare those situations to someone who moves, establishes connections to the new community and their stay in the new location is indefinite with no plans to leave – they may have acquired a new domicile even where they continue to own a property in the place they just left. Maintaining ties to a former domicile does not automatically prevent a change of domicile.

 

Can a Domicile Be Abandoned?

 

Yes. A person can abandon a domicile of choice, but changing their mind is not enough. They must actually leave the jurisdiction where that domicile exists. If a domicile of choice is abandoned and no new domicile of choice has been established, the person's original domicile generally comes back into effect.

 

Why Does This Matter?

 

For estate planners, understanding a client's domicile can be important when preparing wills that involve assets in multiple provinces or countries. For estate trustees and lawyers handling estates, determining domicile may be essential to ensuring the correct laws are applied and that the estate is administered properly. As people increasingly live, work, retire, and own property in multiple jurisdictions, questions about domicile are becoming more common—and more important—in estate administration.

 

-      Ian Keay

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In the Will, the lawyer prepares a clause that causes the share of the estate destined for the disabled child to be placed in the Henson Trust rather than go directly to the disabled child. By doing so, the parent is taking the correct steps to protect their disabled child’s qualification for their Benefits. 6. Important Considerations i. ODSP in particular has rules about income / gifts received during a disabled person’s qualification – not following the rules will result in disqualification ii. Whomever is appointed trustee must be reliable – a poorly managed Henson Trust can result in all kinds of different problems, not the least of which is disqualification from the Benefits iii. Registered Disability Savings Plan (RDSP) is an investment that could be used by the Trustee – but is not typically used instead of a Henson Trust iv. If a person has a family member who: a. receives ODSP (or might in the future) b. is or could be financially vulnerable (i.e. susceptible to influence or exploitation) c. makes poor / questionable financial decisions d. requires support then a Henson Trust may make sense in those circumstances. 7. Final Thoughts on Henson Trusts A Henson Trust is about more than the money. It’s created by someone who wants to provide an inheritance to a vulnerable person in order to: i. preserve dignity ii. provide stability iii. provide necessary supports iv. avoid interruption of government supports v. ensure that the support provided endures for years and decades The best time to set up a Henson Trust is before the crisis occurs – you do not want to die and leave your executors / beneficiaries scrambling. A well-crafted estate plan will protect both your estate assets and your vulnerable loved one. - Ian Keay