1 “In the Matter of the Estate of Eldon Foote” Ryan Robert Gutierrez-Flores

In the Matter of the Estate of Eldon Foote A Summary on the Judgment of the Queen’s Bench of Alberta regarding the Domicile of Eldon Foote

The case of In Re: The Matter of the Estate of Eldon Foote was decided in the Queen’s

Bench of Alberta in the judicial district of Edmonton in 2009. The case concerns the estate of

one Eldon Douglas Foote, the decedent. The action was brought to court by the decedent’s third

wife and widow, Anne Foote, and five of his six children, Judgment penned by the Honorable

Mr. Justice Robert A. Grasser.

The facts of the case are summarized thus: Eldon Douglas Foote was born in 1924 in

Hanna, Alberta in Western Canada. He has lived in Alberta for 43 years since his birth until a

business opportunity opened up in Australia and the Far East in 1967 onwards. While in

Australia, Foote, along with his entire family (from two marriages, the first bearing him five

children, and the second with a step-daughter), established a business selling cleaning and hair

products under the brand name HomCare. From 1970 to 1997, the bulk of Foote’s business was

centered in Japan, however, he had no interest in establishing residency in Japan for tax purposes

(Foote chose Norfolk Island, the same being a tax haven for businesses and individuals).

His business endeavors proved to be lucrative and he earned a considerable fortune which

allowed Foote to contribute heavily to several charities (Specifically: The Australia-based Lord

Mayor’s Charitable Fund and the Edmonton Community Foundation, herein respondents to the

case). In the early 1970’s, Foote invested in a substantial amount of property in Norfolk Island, a

protectorate of Australia, and likewise secured the status of a “permanent resident”. In 1999,

Foote and his wife Anne purchased a condominium in Victoria, British Columbia and spent the

summers there in 2001, 2001 and 2003. After years of working at building HomCare, Foote sold

the company to the Dutch conglomerate Sara Lee, however, the agreement did not cover the

hasrd assets, hence Foote was left with properties in Japan and in Hong Kong.

Foote’s health began to fail and he left Norfolk Island to have tests done in Australia

where it was discovered that he had Lung Cancer. He travelled back to Edmonton to receive

treatment, but he succumbed to his condition in May 2004.

There were three separate wills filed in September 5, 2003 in the British Virgin Islands,

Norfolk and Alberta, Foote, according to the provisions of the wills, wished to bequeath his

family a certain amount of money and some personal properties. To his wife, he arranged for a

monthly allotment. However, the rest of his money constituting the bulk of his estate was to be

used to establish a foundation which is then tasked to divide the money between the two

respondent charitable institutions.

Statements of Claim were filed on behalf of Anne Foote and on behalf of his children on

January 30, 2008, seeking a declaration that Foote died domiciled in Alberta, or British

2 “In the Matter of the Estate of Eldon Foote” Ryan Robert Gutierrez-Flores

Columbia. The beneficiary charities, as well as the executor of the wills filed by the decedent

sought to have Foote declared as having died while domiciled in Norfolk Island.

Five of his six children: Trudy David (nee: Foote), Douglas Foote, Dean Foote, Debbie

Entswistle and Laurie Evans (nee: Foote) along with Foote’s widow, Anne Foote filed a case

questioning the appropriate law which would apply since Foote’s domiciliary is open to question.

The case presents many issues but the final determination of the Queen’s Bench of

Alberta is that Eldon Foote died while domiciled in Norfolk Island.

The issues of the case may be summarized as follows:

a.) Did Eldon Foote abandon his domicile of origin in favor of Norfolk Island in 1967?

b.) If so;

a. Did he then abandon Norfolk Island in favor of British Columbia in 2001 by

his express intention?

c.) If the reverse of the first premise was true, did he however abandon his domicile of

origin in favor of a domicile of choice in British Columbia?

First: Did Eldon Foote abandon his domicile of origin after 1967 in favor of a domicile of

choice in Norfolk Island? The evidence points to his ongoing connections to Canada, including

not giving up his Canadian citizenship, despite his long absence from Alberta. He maintained

strong connections with the people he grew up with, including members of his family, his friends

and his fraternity. And a considerable number of his causes benefited Alberta institutions.

However, there is also evidence which shows that he in fact intended to leave Alberta

indefinitely. Even after arriving in Australia, there was no definite plan to go back. And even

according to the testimony offered during the hearings, it was made clear that Norfolk Island

presented an idyllic place where Eldon sought to build a new life. The residence established

likewise represented a significant investment, tantamount to the implication that it was meant to

be a long-term residence. Foote likewise actively sought Norfolk residency, so much so that he

extended this to his wives.

There was little connection post-1967 with Alberta in favor of Norfolk Island, hence, to

answer the first question, the evidence seemed to point unequivocally to yes.

There were two requirements for Foote to have validly abandoned Alberta as his domicile

as laid down by the Trottier v. Rajotte Case: first: the acquisition of a residence in a new place,

and second: the intention of permanently settling there.1 The court considered that Foot Nort is

not only Foote’s residence in Norfolk Island, but is his “chief residence” with the exclusion of all

others.2 Apart from this, the court also found that Foote not only wished to acquire another

1 S.C.R. 203, [1940] 1 D.L.R. 433

2 Udny v. Udny (1869), L.R. 1 & Sc. 441 (H.L.); Plummer v. IRC, (1988) 1 W.L.R. 292

3 “In the Matter of the Estate of Eldon Foote” Ryan Robert Gutierrez-Flores

residence, but his acts such as leaving the law firm, divorcing his wife, and putting his children

in different boarding schools (and calling them together in places other that Alberta, for

holidays) are indicators that there was no desire to return to Alberta for the long-term.3

As to the subsequent abandonment of Norfolk Island in favor of Canada, the court held

that an obvious intention to leave one’s domicile reinforces the likelihood that a person intends

to adopt a new domicile. In the present case, the court decided that while certain pieces of

evidence would support his intention to return to Canada, this intention has “not yet developed to

the point of crystallizing an intent to relocate to Victoria”4 The question as to what extent of

intent was required was elucidated in Lauderdale Peerage5 which calls for no change of

residence until an actual residence is established in the new place. Hence, even with the

establishment of the condominium in Victoria, Foote has not sufficiently severed his ties to

Norfolk Island just yet to claim that Victoria was his chief residence. Thus, it could only be

reasonably inferred that he died as a resident of Norfolk Island, and he is considered to be

domiciled there.

It was made clear by his intention that there were plans to actually return to Canada,

however, these were under-developed ideas which are insufficient to form a basis to prove intent.

Changing one’s domicile or residence entails the concurrence of certain facts which should be

present prior to its effectivity. As it stands, Foote was declared a resident of Norfolk Island upon

his death, and is considered to be domiciled thereat.

Ryan Robert Gutierrez-Flores

September 20, 2011

Pasig City, Republic of the Philippines

3 Foote Estate (Re), 2009 ABQB 654 [249-254]

4 Supra [420]

5 10 App. Cas. 692, 1885 [740]