Carlson v. Lazicki et al., 2010 SKQB 445

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 03, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKQB 445;(2010), 376 Sask.R. 237 (QB)

Carlson v. Lazicki (2010), 376 Sask.R. 237 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. DE.014

Kenneth Carlson (plaintiff) v. Janina Elizabeth Lazicki, and Janina Elizabeth Lazicki as Executrix of the Estate of Cornelius Edward Schellenberg, deceased, and Ronald Price-Jones (defendants)

(2009 Q.B.G. No. 462; 2010 SKQB 445)

Indexed As: Carlson v. Lazicki et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

McMurtry, J.

December 3, 2010.

Summary:

The plaintiff commenced an action by statement of claim against the defendants. He claimed that their conduct respecting the preparation of a will and power of attorney was an abuse of trust of the deceased, Schellenberg. The defendants applied to, inter alia, strike the statement of claim in its entirety.

The Saskatchewan Court of Queen's Bench held that the statement of claim respecting the will disclosed reasonable causes of action against the defendants arising from their conduct related to the will's preparation. However, the plaintiff was directed to apply for an order requiring the defendant Lazicki to show cause why the grant of Letters Probate should not be revoked in the manner prescribed by rules 734 and 735 of the Queen's Bench Rules. The court was not persuaded that it was plain and obvious that the plaintiff's novel cause of action alleging negligence against the defendant Price-Jones, the lawyer who prepared the power of attorney and will, could not succeed.

Barristers and Solicitors - Topic 2503

Negligence - General principles - Scope of liability - [See Barristers and Solicitors - Topic 2590.1 ].

Barristers and Solicitors - Topic 2590.1

Negligence - Particular negligent acts - Wills - Disappointed beneficiary - The plaintiff commenced an action by statement of claim against the defendants - He claimed that their conduct respecting the preparation of a will and power of attorney was an abuse of trust of the deceased - He was not a beneficiary under the will - The defendant Price-Jones was a lawyer who had drafted the will and power of attorney - He applied to strike the statement of claim on the basis that he owed no duty to the plaintiff - The plaintiff acknowledged that his claim was novel, but drew a parallel between his claim and the "disappointed beneficiary" line of cases - The Saskatchewan Court of Queen's Bench was not persuaded that it was plain and obvious that the novel cause of action alleging negligence against the defendant Price-Jones could not succeed - It might be that the same arguments for recognizing a duty of care towards the disappointed beneficiary would apply also to someone in the plaintiff's position - See paragraphs 34 to 44.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - The plaintiff commenced an action by statement of claim against the defendants - He claimed that their conduct respecting the preparation of a will and power of attorney was an abuse of trust of the deceased - The plaintiff sought, inter alia, to revoke the grant of Letters Probate issued to the defendant executrix Lazicki - The defendants argued that, when challenging the validity of a will, the plaintiff had to follow the procedure specified by the Queen's Bench Rules (i.e., a motion under Rule 35) - The plaintiff argued that it was not mandatory that he proceed by motion as opposed to an action - The Saskatchewan Court of Queen's Bench held that  the plaintiff has raised interrelated questions concerning the validity of the power of attorney, the exercise of authority under it, the testamentary capacity of a testator and the validity of a will - Although the action had been validly commenced, the issue of testamentary capacity alone had to be advanced by notice of motion pursuant to rule 735 - That would not affect the validity of the broader claim - The causes of action which related to proving the will in solemn form were stayed unless and until the plaintiff successfully obtained orders under rules 734 and 735 - See paragraphs 20 to 33 and 44.

Executors and Administrators - Topic 5201

Actions by and against representatives - Actions against executors - General - [See Executors and Administrators - Topic 1139 ].

Cases Noticed:

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 14].

Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership (2010), 353 Sask.R. 217; 2010 SKQB 106, refd to. [para. 15].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 16].

Dieno (Inez) Estate v. Dieno (Jacob) Estate, [1996] 10 W.W.R. 375; 147 Sask.R. 14 (Q.B.), refd to. [para. 21].

Royal Trust Corp. of Canada v. Ritchie - see Ritchie Estate, Re.

Ritchie Estate, Re (2007), 293 Sask.R. 238; 397 W.A.C. 238; 2007 SKCA 64, refd to. [para. 26].

Fisher v. Fisher Estate (2007), 309 Sask.R. 62; 2007 SKQB 407, affd. (2008), 314 Sask.R. 315; 435 W.A.C. 315; 2008 SKCA 165, refd to. [para. 28].

Sherman Estate v. Sherman et al. (1989), 74 Sask.R. 246 (Q.B.), affd. (1990), 81 Sask.R. 252 (C.A.), refd to. [para. 31].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 35].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 37].

Wilhelm v. Hickson - see Earl v. Wilhelm et al.

Earl v. Wilhelm et al. (2000), 189 Sask.R. 71; 216 W.A.C. 71; 2000 SKCA 1, refd to. [para. 38].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 39].

Authors and Works Noticed:

Hull, Rodney, and Cullity, Probate Practice (3rd Ed. 1981), p. 335 [para. 23].

Counsel:

Richard W. Danyliuk, Q.C., for Kenneth Carlson;

Benjamin J. Partyka, for Janina Lazicki;

Robert G. Kennedy, Q.C., for Ronald Price-Jones.

This application was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following reasons for judgment on December 3, 2010.