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BC Supreme Court declares will invalid after son "failed to show" it was duly executed

Wednesday, 22 July, 2015

Supreme Court of British Columbia (Harshenin v Khadikin)

In the case of Harshenin v Khadikin (2015 BCSC 1213) the Supreme Court of British Columbia held a will invalid because the defendant had failed to prove that it was "duly executed in compliance with the requisite statutory formalities" and therefore revoked a grant of probate issued to the defendant with regard to his late father's estate.

Walter Khadikin (WK) died in 2009, having executed a will before his death naming his son Ronald Walter Khadikin (RWK) as sole executor and beneficiary of his estate. In 2008 the late Walter Khadikin had also executed a transfer of his home in favour of himself and RWK as joint tenants.

The plaintiffs, RWK's nephews (WK's grandchildren), claimed that WK's will was invalid (they questioned the authenticity of their grandfather's signature), that probate in favour of RWK should be revoked and the property should be distributed according to the law of intestate succession.

In holding WK's will invalid, the judge held that RWK had not "discharged his burden of showing, on a balance of probabilities, that the Alleged Will was duly executed by the deceased" in accordance to the law as it was not established that "two witnesses saw the Deceased sign or acknowledge his signature on the Alleged Will". The judge also stated that there was no reliable evidence that WK "read and appeared to understand the Alleged Will".

The judge held that the grant of probate issued to the defendant should be revoked and that, as a result, WK's estate "shall devolve according to the law of intestate succession in British Columbia".

  • The judge dismissed, however, the plaintiffs' claim that RWK held his interest in WK's property in trust for the deceased's estate as the judge was "satisfied that the Deceased intended to give an undivided one-half interest in the Property to his son in his lifetime and that he intended that on his death, his son would receive the entirety of the Property by right of survivorship".

Sources