2008 BCSC 930 Haider v. Kalugin

Before: The Honourable Mr. Justice A.F. Wilson

In Chambers

Reasons for Judgment

Counsel for the Plaintiffs:	R. Hornquist
Counsel for Anna Reid, James Kalugin, Caroline DeWaal, Steven Kalugin, Julie Ursic, Arlene Stromsten, Calvin Petersen, Elaine Courneya and Deborah Kazakoff	M. Wasserman
Counsel for Fred Kalugin	H. Fisher
Date and Place of Hearing:	April 9, 2008
	Nanaimo, B.C.

I. Introduction

[1] By Notice of Motion dated November 13, 2007, the plaintiffs sought orders that:

1. the Last Will and Testament of James Kalugin executed July 11, 1955, be pronounced valid;

2. Paula Haider and Marie Moore be declared administrators of the Estate of the late James Kalugin with Will annexed and without bond;

3. probate of a copy of the last Will of James Kalugin bearing the date of July 11, 1955, and marked Exhibit “A” to the Affidavit of Paula Haider and Marie Haider (sic), sworn May 30, 2007, be granted to Paula Haider and Marie Moore, until the original Will, or a more authentic copy thereof, be brought into and left in the registry;

4. the Port Alberni Supreme Court File No. 20592 be transferred to the Nanaimo Registry of the Supreme Court and joined with this file for all purposes.

[2] The plaintiffs are surviving siblings of the late James Kalugin, who passed away in Port Alberni, British Columbia, on January 15, 2007. The defendant, Fred Kalugin, is also a surviving sibling, but did not consent to becoming a plaintiff in the action. All of the other defendants are nephews and nieces of James Kalugin, being children of siblings of James Kalugin who predeceased him. The plaintiffs and defendants are thus all of the persons who would share in his estate on an intestacy.

[3] James Kalugin executed a Last Will and Testament in the law offices of William E. McLeod, in Port Alberni, on July 11, 1955. There is no evidence of what happened to the original of that Will. A copy of it was found in a strong box he kept at his home, together with other personal papers, and cash, after his death. That copy has been submitted for probate by two of James Kalugin’s sisters, Paula Haider and Marie Moore, because the named executors, his parents, or the survivor of them, and the alternate executors, two of his brothers, all predeceased James Kalugin.

II. If matter appropriate for determination under Rule 18A

[4] In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1999), 36 B.C.L.R. (2d) 202 (C.A.) at pages 214 – 215, McEachern C.J., said that while Rule 18A may not furnish perfect justice, if the chambers judge is able to make the findings necessary to reach a decision, he or she should do so, unless it would be unjust to make such decision.

[5] I am satisfied that I can make the necessary findings of fact and law to deal with this matter. I do not consider that either a trial or cross examination on affidavits is likely to assist in the determination of the matter. However, I did adjourn the hearing generally to enable further evidence to be obtained as follows:

1. Information from Madge McLeod, the widow of William E. McLeod, who assisted in his practice in the mid 1950s, with respect to the practice of that firm regarding originals of Wills, insofar as she was able to provide that information;

2. Information from the Law Society of British Columbia as to whether it had the files of Mr. McLeod, and, if so, if there is any reference in them to the Will of James Kalugin;

3. Any other evidence available with respect to what happened to Mr. McLeod’s files.

I have now received an Agreed Statement of Facts, signed by counsel for all parties, dealing with those matters. With that information, I consider that I have sufficient information to enable the matter to be determined.

III. Issues

[6] Four issues arise on this application:

1. If the Will of July 11, 1955 is valid, in that it was properly executed, and James Kalugin had the capacity to make a Will at that time;

2. If the 1955 Will was revoked;

3. The contents of that Will, if it is valid;

4. If Paula Haider and Marie Moore should be appointed as administrators of the estate without bond.

[7] On the hearing, the only contested issue was whether the Will was revoked.

IV. Law

[8] The applicable law is not in dispute. When an original will has been lost, mislaid or destroyed or is not available, an application may be made for an order admitting the will to probate by a copy, a completed draft, a reconstruction or evidence of its content: British Columbia Probate and Estate Administration Manual, 2nd edition, 2007, s.5.61.

[9] If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10] In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:

[49] It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11] In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:

[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

[12] As stated by MacKeigan, C.J.N.S. in McBurnie v. Patriquin [1975] N.S.J. No. 447, at paragraph 10:

[10] I should emphasize that the burden on the person who is trying to rebut the presumption is a very heavy burden.

[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.

V. Validity of Will

[15] Based on the copy of the Will, it is valid on its face. It is stated to be executed by the testator in the presence of two witnesses, both present at the same time, who both signed as witnesses. As set out in the affidavit of Madge McLeod, sworn October 31, 2007, she does not remember the circumstances of execution of this particular Will, but can identify the writing of her late husband and her own signature as witnesses on the copy of the Will. In paragraph 16 of her affidavit, she says that on the occasions when she witnessed execution of a Will prepared by her husband, that he ensured that the testator was aware of the contents of the Will, and what it purported to do, and that both her husband and herself were present in the same room when the testator signed his Will. She and her husband would then sign the Will to complete the process. However, as set out in that affidavit and the Agreed Statement of Facts, she could not remember Mr. McLeod’s practice as to whether he retained original Wills in general, or the original of this one in particular. She did not recall him having a fireproof vault where he would have kept important documents such as original Wills.

[16] I accept that evidence goes not only to execution of the Will, but also to testamentary capacity. It is the duty of a solicitor taking instructions, and attending upon execution of the Will, to ensure that the testator had testamentary capacity. In absence of any evidence to the contrary, I find that James Kalugin did have testamentary capacity at the time of executing the 1955 Will. I thus find that the Will was valid when executed.

VI. Whether Will Revoked

[17] In the Statement of Claim, the plaintiffs pled that the original Will was in the possession of James Kalugin and was destroyed in a house file of 1959. That was denied by the defendants other than Fred Kalugin and Timothy Petersen (who has not filed an Appearance in the action). There is, however, no direct evidence that James Kalugin ever had possession of the original Will, or, if he did, that it was destroyed in the house fire in 1959. The plaintiffs adjusted their position on the hearing accordingly.

[18] As noted above, Madge McLeod was unable to give evidence with respect to her husband’s practice regarding possession of original Wills. A search has been made by the Law Society of British Columbia as to the present location of Mr. McLeod’s wills with no results The position of the plaintiffs on this hearing was thus that, as there is no evidence James Kalugin ever had custody of the original of his Will, after its execution in 1955, the presumption of revocation does not apply and the court should admit the copy of the Will to probate if the court is satisfied, on a balance of probabilities, that the copy represents his true intentions and that the Will was validly executed by him at a time he was competent to do so.

[19] It is uncontradicted that almost 52 years after the execution of the Will, in July, 1955, a copy of it was found in a strong box in his home with other personal papers and a large sum of cash. That does provide some evidence that it indicated his intention with respect to the disposition of his estate. On the other hand, the affidavit of Fred Kalugin, while indicating that his brother was a private person, says that he had several conversations with him about Wills and estates in general. He says that his brother never disclosed to him that he had a Will, but that his brother said that his estate would go to his surviving brothers and sisters and to the children of any predeceased brothers and sisters. As this evidence is contrary to Fred Kalugin’s pecuniary interest, in that he will receive less if the estate is distributed on an intestacy than under the Will, I give that evidence considerable weight. However, he was not aware of the copy of the Will; apparently his brother had never told him about it. There is also evidence, from Paula Haider, Fatinia Reynolds, and Tina Johnson, that James Kalugin indicated to each of them that he had a Will, and, in the case of Ms. Haider, that he was leaving his estate to his surviving brothers and sisters. Two of the respondents, Steven Kalugin and Caroline DeWaal, say James Kalugin made comments to the effect that the government would take care of things. I do not, however, take that to mean that he intended he would die intestate. All of the parties agree that he was a private man. That could just have been a way to avoid further inquiries.

[20] With respect to the fire at the house occupied by James Kalugin in 1959, I do not consider the evidence relating to it to be particularly helpful. I accept the evidence of Fred Kalugin that he and his brother were the first on the scene, and that they, together with James Kalugin, were able to retrieve all of James’ personal belongings, including his papers. I prefer that evidence to the evidence of Marie Moore, who arrived only after the upper floor was ablaze. I thus find there is no evidence that the original Will was destroyed in that fire. Nor is there any evidence that James Kalugin said it was destroyed in the fire.

[21] Information obtained from the Law Society indicates that Mr. McLeod’s successor was William Scott Pearson. When he ceased to practice law in January, 1987, the files were assumed by the law firm of Badovinac, Scoffield & Moseley of Port Alberni. That firm has a record of assuming all of the files of Scott Pearson, which included some of the files of William McLeod. Mr. Moseley, of Badovinac, Scoffield & Moseley searched the closed files assumed from Mr. Pearson, and could find no files pertaining to James Kalugin. Mr. Moseley also reviewed files assumed from Mr. McLeod’s practice, and noted that there were files in which Mr. McLeod did retain original Wills, which original wills went back as far as 1959.

[22] In those circumstances, I am not satisfied that it has been established that James Kalugin ever had possession of the original of the Will executed July 11, 1955. There is evidence that, on at least some of his files, Mr. McLeod retained the original Wills. Further, the fact that James Kalugin retained a copy of a Will for approximately 52 years, which was found in a strong box in his home with other personal papers and a large sum of cash, is also an indication that he did not have the original of the Will. If he did have the original, that is where one would expect it to be found, rather than a copy of the Will. If he had destroyed the original, there would be no reason to retain the copy with his other personal papers. I thus find that the presumption of revocation does not apply: Brimicombe v. Brimicombe Estate supra, paragraph 7.

[23] As to the evidence of James Kalugin’s intentions, it is equivocal. As noted above, three of his siblings say that he told them that he had a Will, and one, Ms. Haider, that he was leaving his estate to his surviving brothers and sisters. I do not consider it significant that he referred to having a Will, rather than having a copy of the Will. Although Fred Kalugin, in his affidavit, says that his brother never disclosed to him that he had a Will, he also does not say that James Kalugin ever told him that he did not have a Will. As to the statements that the nephews and nieces would benefit in the estate, and that the government would take care of it, I give little weight to those comments. If he had intended that the children of predeceased brothers and sisters would share in the estate, the normal way to provide for that would be by preparing a new Will. Although he had some experience with intestacy, it would take a fairly sophisticated understanding of that law to expect that children of predeceased siblings would share in the estate, and to deliberately not make a new will accordingly.

[24] It cannot be said that the terms of the Will itself are not reasonable. It specifically provides that the residue of the estate be transferred:

To my brothers and sisters, surviving me in equal shares, share and share alike, for their own use absolutely.

It thus specifically deals with the issue of what would occur in the event that some of those brothers and sisters predeceased him.

[25] In the result, I am satisfied, on a balance of probabilities, that the Will dated July 11, 1955, does express the intentions of James Kalugin with respect to the distribution of his estate. I am not satisfied that there is any evidence that the Will was revoked.

VII. Contents of Will

[26] There is no dispute as to the contents of the Will: it is in the form as attached as Exhibit “A” to the affidavit of Paula Haider.

[27] As both the original executors, his parents, and the alternate executors, his brothers Sam and Tony Kalugin, are predeceased, it is appropriate that there be a grant of Letters of Administration with Will annexed to one or more of the surviving siblings, who are the beneficiaries pursuant to paragraph 4(c) of the Will.

VIII. Whether Paula Haider and Marie Moore should be appointed as administrators

[28] As noted, both the original executors and the alternate executors are predeceased. By order dated June 11, 2007, Paula Haider and Marie Moore were appointed administrators pendente lite of the estate of James Kalugin, without bond.

[29] Concerns have been raised with respect to the administration of the estate by Ms. Haider and Ms. Moore. Specifically, they have failed to provide a proper inventory of the contents of the safes. They have also made a distribution of cash before the grant of Letters of Administration with Will annexed.

[30] Notwithstanding those defects in the administration of the estate, I consider it appropriate to appoint Paula Haider and Marie Moore as the administrators. They are supported by all of the surviving siblings, the beneficiaries under the Will, with the exception of Fred Kalugin. Further, in light of my findings that the copy of the Will should be admitted to probate, the distributions were made to the persons who are the named beneficiaries under that Will. However, in light of those concerns with respect to the administration of the estate, I consider it appropriate that there be a bond posted. Ms. Haider and Ms. Moore will thus be required to post a bond in the amount of $200,000 as a term of the grant of the Letters of Administration with Will annexed.

IX. Orders

[31] There will thus be a declaration that the Last Will and Testament of James Kalugin executed July 11, 1955 is valid.

[32] There will be an order that Paula Haider and Marie Moore be appointed administrators of the estate of the late James Kalugin with Will annexed, with a bond in the amount of $200,000.

[33] There will be an order that probate of a copy of the Last Will and Testament of James Kalugin bearing the date of July 11, 1955, be granted to Paula Haider and Marie Moore until the original Will is deposited in the registry.

[34] There will also be an order that Port Alberni Supreme Court file Number 20592 be transferred to the Nanaimo Registry of this court and joined with this file for all purposes.

[35] If in issue, the parties will have liberty to apply with respect to costs.

________________________________

A.F. Wilson, J.

Citation:	*Haider v. Kalugin,*
	2008 BCSC 930