High Court Rules on Domicile, Will Validity & Revocation in Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors

Citation: [2023] EWHC 3253 (Ch)
Judgment on

Introduction

The High Court’s decision in Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors provides a comprehensive examination of issues surrounding domicile, applicable law for succession, and will validity and revocation. This article dissects the legal principles applied and highlights the court’s findings, elucidating the rationale behind the final judgement.

Key Facts

The case involves the estate of the late Vladimir Alekseyevich Scherbakova, a Russian businessman who had spent significant time in various countries and whose last years were spent between England and Belgium. The claimants sought to establish the validity of a will dated 28 October 2015 and to prove that Vladimir died domiciled in Russia, with England as his permanent residence, making English law the applicable law of succession. The defendants, including Vladimir’s former wife and children from that marriage, contended he died domiciled in Belgium and that the 2015 Will had been revoked.

The court applied the following key legal principles:

Domicile and Applicable Law of Succession

The court reaffirmed the principle that a person can only have one domicile at a time which is not easily displaced and that domicile of choice is acquired by residence coupled with an intention to reside indefinitely. In assessing domicile, the court considers the entirety of the circumstances, including the individual’s actions, family connections, social life, and expressed intentions.

The court also clarified that the domicile at death dictates the law applicable to the succession of moveable assets, rejecting the contention that the European Succession Regulation applied since the deceased retained an English domicile of choice.

Will Validity

The court referred to the Wills Act 1963, stating that a will must be executed with the formalities required by the jurisdiction where it was created. Moreover, it evaluated evidence to determine that the 2015 Will met the formal validity requirements under English law, as it was executed in England.

Revocation of Will

For revocation, the court considered Section 20 of the Wills Act 1837 and whether there was evidence suggesting the 2015 Will’s revocation by the testator. It noted the presumption of revocation where a will, last known to be in the testator’s possession, cannot be found. However, if evidence suggests the will was suppressed or destroyed without the testator’s knowledge, the presumption does not arise.

Outcomes

The High Court concluded that:

  1. Vladimir did not acquire a Belgian domicile of choice but did acquire an English domicile of choice by the summer of 2015, which he retained at his death, making English law govern his worldwide moveable assets.
  2. The 2015 Will was formally valid and met the execution requirements of English law.
  3. The 2015 Will existed at Vladimir’s death and had not been revoked. The claimants demonstrated that it was last held by a third party who extorted for its return, implicating Elena, Olga, and Alexander in its suppression.

Conclusion

The Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors case affirms the durability of domicile of choice and the importance of intentionality behind a testator’s actions concerning their will. The court’s detailed assessment of the facts and application of legal principles to those facts, notably regarding the non-revocation of a will under duress, provides a notable precedence in probate law. The judgement offers reassurance that the legal system can effectively adjudicate complex cross-border estate matters, ensuring fidelity to the testator’s intentions and preventing undue interference with testamentary documents.

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