Morina v Scherbakova

While the bitter family probate dispute around the will of Russian oligarch Vladimir Scherbakov received considerable attention recently, the practical lesson to be learned from this high-profile case has been less scrutinised.

At the root of the court battle is a concrete illustration of why keeping track of an original will in hard copy form is just as essential now in the electronic era as it has ever been. Even though most important documents are now stored electronically, the case, in which judgment has yet to be passed, shows that if a will is missing then the starting point is that it will be presumed revoked.

This was a trial in which the central allegation was that Scherbakov’s will has been deliberately concealed. At the time of his death, the billionaire, who was being investigated by the Kremlin for fraud, left behind a huge trail of assets throughout the globe – including the rights to a £12 million mansion in Weybridge, Surrey, where he lived with his girlfriend Brigita Morina, 42, and their two children, Luca and Olivya. The couple met in 2009 and were said to be engaged when Scherbakov died in Belgium, where he had been living. Prior to that relationship, he had two children with his ex-wife Elena, whom he had married in 1989. Following his divorce around 2015, Scherbakov made a new will in which 90% of his £100 million English estate was left to Brigita and her children.

Since his death, Brigita has claimed that the deceased’s older children from his marriage – Olga Scherbakova, 34, and Alexander Scherbakov, 25 – have hidden or destroyed the original will in a deliberate attempt to chase their father’s wealth overseas. She has asked the court to grant probate of a copy of the will dated 2015.  Olga and Alexander, meanwhile, rely on the presumption of revocation, as the original will is missing. They contend that their father intended to share his immense fortune with them in the event of his death.

Scherbakov’s domicile is a key issue in this dispute and impacts which succession laws apply. He was living in England until 2016, when he fled to Belgium, which he had described as a ‘prison’, to avoid being extradited to face criminal proceedings in Moscow.  According to Brigita’s lawyers, he was excited to return to England after the criminal proceedings were dropped but died by hanging in 2017 before he got the opportunity to do so.

The reason the case is so unusual is that it is easy to say a missing will must have been destroyed by the deceased, given that there is a presumption of revocation if the original can’t be found, and that it is difficult to prove that someone deliberately concealed a will. The strength of this presumption turns on the facts of each case and what evidence can be found to demonstrate (i) what happened and (ii) what the deceased intended. If it can be shown that the will was most likely lost or destroyed by mistake, this can be enough to rebut the presumption and admit a copy will for probate.

The inherent difficulty in these cases is that the key witness – the deceased – self-evidently cannot testify, so the court is forced to make its own inferences from the surrounding evidence. The court has to follow the evidential trail and make a finding of fact about what is most likely to have happened, on the balance of probabilities, notwithstanding that it is likely missing several key pieces of the puzzle.

What follows logically from the fraught dispute is a reminder of how it is indisputably imperative to store an original will somewhere safe, ideally with a solicitor who will be required to keep records. Probate solicitors who store original wills must make sure they keep a note of who the original will is being released to, and when.

As this case undoubtedly shows, whether this was before or after a testator’s death could have significant, and even life-altering, consequences.

Mark Keeley is a partner and contentious trust and probate expert at national law firm Freeths

Read more stories

Join over 6,000 wills and probate practitioners – Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Friday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.