Haider v. Kalugin

The recent decision of Mr. Justice Wilson in Haider v. Kalugin, 2008 BCSC 930 is about the vexing problem of a missing original will.

James Kalugin made a will on July 11, 1955, leaving his estate to “my brothers and sisters, surviving me in equal shares, share and share alike….” After he died, almost 52 years later, on February 25, 2007, no one could find his original will. He had a copy of the will, together with cash, in a strong box at his home, but no original. The lawyer who drew the will had died, and neither the law firm that eventually acquired some of his files, nor the Law Society of British Columbia, had any records showing that the lawyer had kept the original, or where it was stored.

Could the copy be treated as an original will, or did James Kalugin die intestate, or in other words, without a valid will?

Mr. Kalugin did not have a spouse, children, or other descendants on his death. Some of his siblings survived him, but some had died before him with children. If he died without a will, then the children of the deceased siblings would be entitled to share in the estate. On the other hand, if the copy of the will were recognized, then the nieces and nephews would be excluded by the provisions of the will, and the estate would be divided only among the brothers and sisters who survived James Kalugin.

In British Columbia, there is a presumption that if a will can be last traced to the possession of the testator, and it is missing, the testator destroyed the will with the intention of revoking it. But this is a presumption only, and it can be rebutted by evidence that the testator did not intend to revoke the will.

Mr. Justice Wilson summarized some of the factors the courts have considered in other cases to decide whether a copy of a will may be proved in place of the original as follows:

[13] Some of the factors considered in determining whether the presumption has been overcome are:
· whether the terms of the Will itself were reasonable: Pigeon Estate v. Major, [1930] S.C.R. 252 (S.C.C.);
· whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death: Pigeon, supra;
· where personal effects of the deceased were destroyed prior to the search for the Will being carried out: Pigeon, supra;
· the nature and character of the deceased in taking care of personal effects: Pigeon, supra;
· whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated: MacBurnie v. Patriquin, supra; Anderson v. Kahan Estate [2006], B.C.J. No. 716 (B.C.S.C.);
· statements made by the testator which confirm or contradict the terms of distribution set out in the will: Bobersky Estate, supra, Anderson, supra, Holst Estate v. Holst [2001], B.C.J. No. 1560 (B.C.S.C.), Re Green Estate [2001], A.J. No. 1253 (Alta Q.B.);
· whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers: Bobersky Estate, supra, Brimicombe v. Brimicombe Estate [2000], N.S.J. No. 157 (N.S.C.A.);
· whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy: Bobersky Estate, supra;
· whether the testator made statements to the effect that he had a will: Bobersky Estate, supra

[14] However, the presumption of revocation does not apply where the Will cannot be traced to the possession of the testator: Brimicombe v. Brimicombe Estate, supra, at paragraph 7.

Mr. Justice Wilson found that the presumption that James Kalugin revoked the will does not apply. The evidence did not show that it was last in his possession. The lawyer who drew the will might have kept the original.

The court also found that the will likely reflected Mr. Kalugin’s intentions when he died. Some witnesses said that Mr. Kalugin told them that he intended the children of deceased siblings to inherit shares of his estate, but there was also evidence that he just wanted his siblings to inherit. Mr. Justice Wilson reasoned that if James Kalugin wanted to revoke his will, he would not have left a copy in his strong box. Furthermore, if he wanted to include nieces and nephews, it is more likely that Mr. Kalugin would have made a new will, than to die without a will.

In the result, only the siblings will receive James Kalugin’s estate.