The missing will of Russian billionaire Vladimir Scherbakov
By Mark Keeley
Mark Keeley discusses the recent case before the High Court and the key takeaways for probate solicitors and the public
The probate dispute relating to the missing will of Russian billionaire Vladimir Scherbakov is one of the most unique of its kind to appear before the High Court in London in recent times. While cases in which wills are forged or go missing crop up regularly, it is unusual for a case to go to trial which turns on whether a will has been deliberately concealed.
The background facts of the case are significant, with the will of the oligarch, who was found hanged at the age of 56 while fighting extradition back to Russia, at the heart of the proceedings. At the time of his death, Vladimir, who was being investigated by the Kremlin for fraud, left behind a huge trail of assets throughout the globe – including the rights to a £12m mansion in 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 Vladimir died in Belgium, where he had been living.
Many years beforehand, Vladimir had had two children with his ex-wife Elena, whom he married in 1989. In 2015/16, Vladimir and Elena sought a divorce and Vladimir made a new will, leaving 90 per cent of his £100m English estate to Brigita and his two children with her. Brigita alleges that Vladimir’s older children, Olga Scherbakova, 34, and Alexander Scherbakov, 25, hid or destroyed the original will after Vladimir’s death 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. Their contention is that their father intended to share his immense fortune with them in the event of his death. Brigita, however, alleges that Olga and Alexander are deliberately concealing the original will and that they previously offered her €35m to produce the document, at a meeting in Paris.
Vladimir’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, Vladimir was excited to return to England after the criminal proceedings were dropped but died mysteriously by hanging in 2017, before he had the opportunity to do so.
Hodge Malek KC told the hearing that Vladimir ‘desperately wanted’ to be back with Elena and their children at their mansion in Weybridge. He even noted that the oligarch was ‘integrated in British life’ and was a ‘great admirer of our late Queen’. By contrast, the siblings from the first marriage argued throughout the two-week trial that their father had never followed through with his promise to marry Brigita and was living separately from her in Belgium when he died.
The nuances of the case
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 far more difficult to prove that someone has deliberately concealed a will. The strength of this presumption turns on the facts of each case and what evidence can be found to demonstrate: (1) what happened and (2) 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. In these cases, credibility is absolutely crucial, so evidence from independent witnesses can make all the difference. With regard to the specifics of this case, the deaths of two of Vladimir’s lawyers and the somewhat opaque political backdrop add an extra challenge for the court in unpicking what truly happened to the original will.
This case serves as an excellent example of why it remains essential to keep track of original wills, even in an age when most documents are kept electronically, and original paperwork is in decline. The key takeaway is that wills are presumed revoked if they go missing. If you have a document that might be an original will, make sure that it is stored somewhere secure and ideally with a solicitor who will be required to keep records. If you are a probate solicitor who stores original wills, make sure that you keep a note of who the original will is being released to, and when.
As this case undoubtedly shows, whether the original will was last seen 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 Freeths