Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors

A domicile of choice requires both residence in the jurisdiction and a fixed intention to reside there permanently or indefinitely. The court must assess all the circumstances, including the quality of residence, family and social connections, and the motive for residing there. A residence adopted under compulsion to avoid extradition will not ordinarily establish a domicile of choice where the person intends to return home. Formal declarations, citizenship and property ownership are relevant but not decisive. A lost will may be admitted to probate where its execution and contents are proved. The presumption that a missing will was destroyed with an intention to revoke it arises only where it was last in the testator’s possession and cannot be found after reasonable search. It does not arise where the evidence establishes that the will was in the hands of a third party after the testator’s death.

This was a probate claim concerning the worldwide estate of Vladimir Alekseyevich Scherbakov. The claimants sought probate in solemn form of a copy of his will dated 28 October 2015, declarations concerning his domicile and the applicable law of succession, and findings that the original will had been suppressed after Vladimir’s death.

The principal issues were whether Vladimir acquired and retained an English or Belgian domicile of choice; whether the 2015 Will was formally valid; whether it existed at his death; and whether it had been revoked. The defendants disputed the will’s validity and alleged, among other matters, that it had been revoked or that the claimants and others were involved in an extortion scheme.

1. Domicile. Acquisition of a domicile of choice required residence and an intention of permanent or indefinite residence. Vladimir’s family life, home, business and social connections showed that England had become the centre of his life by 2013–2016. His English domicile of choice had crystallised by the summer of 2015. Citizenship, tax declarations and formal registrations were relevant but not decisive.
2. Vladimir did not acquire a Belgian domicile of choice. His move to Belgium in January 2016 was compelled by the Russian extradition risk. His hotel and rented accommodation, unhappiness there, continuing family life in England and intention to return showed that the residence was temporary. The length of time spent in Belgium did not alter that conclusion.
3. Vladimir therefore died domiciled in England. English law governed succession to his worldwide moveable assets. The European Succession Regulation was inapplicable, and the Belgian court’s findings in related proceedings were not binding under the parties’ agreement.
4. The 2015 Will was executed in England and was formally valid under s. 9 of the Wills Act 1937. The handwritten clause added by the solicitor and Vladimir’s own amendments formed part of the will because they were made before execution and were signed or initialled by Vladimir and the witnesses. The unpleaded allegation of undue influence was rejected.
5. The evidence established that the original will existed after Vladimir’s death and was the document inspected in Paris in 2021. The court inferred that Elena, Olga and Alexander were involved in its suppression. Under English law, the presumption of revocation did not arise because the will was shown to have existed in third-party hands after death. The requirements for reliance on a copy under Belgian law were also satisfied.
6. The 2015 Will was not revoked. The claims that Mr K or Brigita had participated in suppressing it were rejected. The claimants were entitled to probate of the copy and the related declarations.

Not an appeal. The judgment records related Belgian, Russian and BVI proceedings, but none formed an appellate stage of this claim.