Digest: Kyrylchuk Estate, Re, 2018 SKQB 132

• Date: May 01, 2018

Reported as: 2018 SKQB 132

Docket Number: QBG 2673/15 JCR , QB17519

Court: Court of Queen's Bench

Date: 2018-05-01

Judges:

• Leurer

Subjects:

• Civil Procedure � Queen�s Bench Rules, Rule 7-9(2)(e), Rule 16-46, Rule 16-47

Digest: The defendants, the executors of the estate of Michal Kyrylchuk, applied to have the plaintiff�s action struck out and dismissed on the ground it is an abuse of process, contrary to Queen�s Bench rule 7-9(2)(e). After the death of the testator, letters probate were issued and the plaintiff commenced his action, which challenged the validity of the will and also claimed relief premised on the existence of causes of actions directly against the estate. The plaintiff then determined that the questions regarding the validity of the will could not be determined in the context of the action and brought an application in separate proceedings that sought orders against the defendants that they should show cause why the grant should not be revoked and the will proved in solemn form. The application was dismissed (see: 2017 SKQB 353). The defendants argued that the plaintiff was trying to relitigate issues already decided against him. The plaintiff agreed that the validity of the will had been established but that there were other issues and relief claimed that were not determined in his earlier application. The plaintiff alleged that he had been promised by the testator that he would leave him his house, home quarter and other land and property upon his death. They had farmed together from 1989 until 2013. HELD: The application was dismissed. The court found that the existence of the second claim would not offend the doctrine of abuse of process by re-litigation because issues raised by the plaintiff were not and could not be determined in the prior proceeding. The application regarding the validity of the will was made pursuant to Queen�s Bench rules 16-46 and rule 16-47, under which the litigant has no right to define the issues tried by the court. The judge hearing the previous application could not have considered any issues relating to other claims the plaintiff made against the estate. The court then struck portions of the statement of claim that related solely to the challenge to the will but, otherwise, the plaintiff was entitled to pursue the claim.

Rules Considered:

• QB Rule 7-9(2)(e)
• QB Rule 16-46
• QB Rule 16-47
• QB Rule 16-47(1)

Cases Considered:

• Bachman v Scheidt Estate...