Henry Estate v. Henry,

• Jurisdiction: Manitoba
• Judge: Beard,McKelvey,Monnin
• Neutral Citation: 2012 MBCA 4
• Citation: (2012), 275 Man.R.(2d) 90 (CA),2012 MBCA 4,275 ManR(2d) 90,(2012), 275 ManR(2d) 90 (CA),275 Man.R.(2d) 90
• Date: 28 October 2011
• Court: Court of Appeal (Manitoba)

Henry Estate v. Henry (2012), 275 Man.R.(2d) 90 (CA);

      538 W.A.C. 90

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JA.036

Lenworth Henry and Pearlitia Wafer, as Executors of the Estate of the late Adelaide Henry, deceased (plaintiffs/respondents) v. Joseph Henry (defendant/appellant)

(AI 11-30-07544; 2012 MBCA 4)

Indexed As: Henry Estate v. Henry

Manitoba Court of Appeal

Beard, Monnin, JJ.A., and McKelvey, J. (ad hoc)

January 12, 2012.

Summary:

The will of the deceased, Adelaide Henry, was executed in Jamaica where she lived. It left her estate to seven of her nine children. Her son Joseph was disinherited. Her son Rupert, who had been living in England, had predeceased her. Joseph had applied to administer Rupert's estate and he had the English solicitors forward the money to him in Winnipeg. The executors of Adelaide's estate claimed that Adelaide was Rupert's sole heir-at-law and inherited his entire estate. They brought an action against Joseph for the payment of funds owed to Adelaide's estate, for an accounting of all funds and for disclosure as to the conversion of such funds into other property. Joseph defended the claim on the basis that the will was invalid on the grounds of lack of testamentary capacity, duress and undue influence, suspicious circumstances and, alternatively, forgery. He also alleged that Adelaide owed him $312,000. The executors obtained an order to garnish funds in Joseph's bank account, pursuant to which $264,981.78 was paid into court. Joseph moved for: (i) an order dismissing the executors' claim on the basis that Manitoba was not a convenient forum for the hearing of the proceedings and that Jamaica was a more appropriate forum; and (ii) an order requiring the plaintiffs to pay security for costs.

The Manitoba Court of Queen's Bench, in a decision reported at (2010), 261 Man.R.(2d) 26, dismissed the first motion. The Manitoba court had jurisdiction simpliciter and the court was not satisfied that Jamaica was a clearly more appropriate forum. The court allowed the second motion, and ordered the executors to provide security for costs in the sum of $7,500, by instalments of $500 per month. Joseph appealed. The executors cross-appealed, arguing that the motion judge erred in finding that success on the motion was divided and ordering no costs.

The Manitoba Court of Appeal dismissed the appeal and the cross-appeal.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The will of the deceased, Adelaide Henry, was executed in Jamaica where she lived - It left her estate to seven of her nine children - Her son Joseph was disinherited - Her son Rupert, who lived in England, had predeceased her - Joseph had applied to administer Rupert's estate and he had the English solicitors forward the money to him in Winnipeg - The executors of Adelaide's estate claimed that Adelaide was Rupert's sole heir-at-law and inherited his entire estate - They sued Joseph for the payment of funds owed to Adelaide's estate - Joseph defended the claim on the basis that the will was invalid - He also alleged that Adelaide owed him $312,000 - Joseph moved to dismiss the executors' claim on the basis that Jamaica was a more appropriate forum - The motion was dismissed - Joseph appealed - The Manitoba Court of Appeal dismissed the appeal - The court stated, inter alia, that Joseph's opposition to the executors' claim on the basis that Adelaide's will was invalid was not a defence to the claim, as the estate would have a claim to the funds whether there was a valid will or an intestacy - Rather, its relevance to this proceeding was that it challenged the executors' authority to act on behalf of the estate - The court stated that "Given that this defence challenges the executors' legal capacity to pursue this litigation, it cannot be resolved as part of this litigation, as the litigation must be brought by a person(s) or an entity entitled to act on behalf of the estate. Further, there would be little economy in having one proceeding to determine the validity of both the will and the alleged debt, even if it were possible" - See paragraphs 43 to 46.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The will of the deceased, Adelaide Henry, was executed in Jamaica where she lived - It left her estate to seven of her nine children - Her son Joseph was disinherited - Her son Rupert, who lived in England, had predeceased her - Joseph had applied to administer Rupert's estate and he had the English solicitors forward the money to him in Winnipeg - The executors of Adelaide's estate claimed that Adelaide was Rupert's sole heir-at-law and inherited his entire estate - They sued Joseph for the payment of funds owed to Adelaide's estate - Joseph defended the claim on the basis that the will was invalid - He also alleged that Adelaide owed him $312,000 - The executors obtained an order to garnish funds in Joseph's bank account, pursuant to which $264,981.78 was paid into court - Joseph moved to dismiss the executors' claim on the basis that Jamaica was a more appropriate forum - The motion was dismissed - Joseph appealed - The Manitoba Court of Appeal dismissed the appeal - The court stated, inter alia, "Joseph argues that the motion judge was wrong to conclude that a Jamaican court would refuse to hear this claim in Jamaica. The motion judge did not find that a Jamaican court would refuse to hear the executors' claim; rather, he stated that, while a Manitoba court could hear the claim, there is no evidence that a Jamaican court would do so, given that the defendant is not ordinarily resident in Jamaica and the breach arguably occurred outside of Jamaica. To this one must add the fact that the funds in issue are in Manitoba and not in Jamaica. In any event, this was not an important factor for the motion judge. It was considered in relation to the question of avoiding a multiplicity of proceedings. More important to that issue is his finding that, if the matter were litigated in Jamaica, that would not end the matter because there is no reciprocal enforcement legislation that would permit a Jamaican judgment to be recognized in Manitoba" - The motion judge did err or come to an unreasonable conclusion regarding this issue - See paragraphs 58 to 60.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The defendant moved to dismiss the plaintiffs' claim on the basis that Manitoba was not a convenient forum for the hearing of the proceedings and that Jamaica was a more appropriate forum - The motion was dismissed - The defendant appealed - The defendant argued that the motion judge's reference to juridical advantage was wrong as it referred to a postjudgment advantage and not to any advantage gained or lost in the litigation itself - The Manitoba Court of Appeal dismissed the appeal - A postjudgment advantage consisting of prejudgment garnishment was a legitimate juridical advantage and the motion judge was correct in considering it as a factor relevant to the determination of the issue of forum non conveniens - See paragraphs 61 to 65.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The will of the deceased, Adelaide Henry, was executed in Jamaica where she lived - It left her estate to seven of her nine children - Her son Joseph was disinherited - Her son Rupert, who lived in England, had predeceased her - Joseph had applied to administer Rupert's estate and he had the English solicitors forward the money to him in Winnipeg - The executors of Adelaide's estate claimed that Adelaide was Rupert's sole heir-at-law and inherited his entire estate - They sued Joseph for the payment of funds owed to Adelaide's estate - Joseph defended the claim on the basis that the will was invalid on the grounds of lack of testamentary capacity, duress and undue influence, suspicious circumstances and, alternatively, forgery - He also alleged that Adelaide owed him $312,000 - The executors obtained an order to garnish funds in Joseph's bank account, pursuant to which $264,981.78 was paid into court - Joseph moved to dismiss the executors' claim on the basis that Jamaica was a more appropriate forum - The motion was dismissed - Joseph appealed - The Manitoba Court of Appeal dismissed the appeal - Joseph failed to satisfy the motion judge that Jamaica was clearly a more appropriate forum than Manitoba - The motion judge considered the proper authorities and applied the correct legal principles - The motion judge did not commit a reversible error of fact or arrive at a decision that was so clearly wrong as to amount to a truly unjust result - See paragraphs 10 to 68.

Conflict of Laws - Topic 1665

Actions - General - Forum conveniens - Procedure for determining forum conveniens - The defendant applied to dismiss the action pursuant to Queen's Bench Rule 17.06(2) on the basis that Manitoba was not a convenient forum for the hearing of the proceedings and Jamaica was a more appropriate forum - The Manitoba Court of Appeal stated that "Subrule 17.06(2) does not appear to apply in this case, as [the defendant] is a resident of Manitoba and was served in Manitoba, while rule 17 deals with service outside of Manitoba and rule 17.06 deals with setting aside service outside of Manitoba. Subrule 17.06(2) does not contain words that limit its application to a party who has been served outside of Manitoba, but it must be read in the context of rule 17 as a whole which deals specifically with service outside of Manitoba. Further, subrule 17.06(2) refers back to subrule 17.06(1), which applies only where there has been service outside Manitoba, stating that '[a] party who has been served with an originating process outside Manitoba may move ...' This wording would appear to exclude [the defendant] ... That said, [the defendant] is still entitled to raise the issue of whether there is a more convenient forum in which this matter should be litigated" - While rule 17.06(2) did not appear to apply, the defendant could still proceed with his motion - See paragraphs 14 to 18.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - The defendant moved to dismiss the plaintiffs' claim on the basis that Manitoba was not an appropriate or convenient forum - The defendant also moved for security for costs - The first motion was dismissed and the second was granted - The motion judge ordered that, as success was divided, there would be no award of costs - The plaintiffs cross-appealed from the cost order on the basis that the first motion was vital to the proceedings and the more important motion - They argued that the basic practice was to grant costs to the successful party on a forum non conveniens motion - They also argued that they did not fail on the second motion as they acknowledged that the court had jurisdiction to grant the order, but that it should be in a modest amount or not at all - The Manitoba Court of Appeal dismissed the cross-appeal - The court was not satisfied that there was a basic practice to grant costs to the successful party on a motion regarding forum non conveniens - The court stated that "While I do not think that I would have come to the same decision as did the motion judge, that is not the standard of review. He made no reversible errors of fact or law, and his decision is not so clearly wrong as to amount to a truly unjust result" - See paragraphs 69 to 74.

Practice - Topic 7364

Costs - Party and party costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 7030 ].

Cases Noticed:

Caspian Construction Inc. v. Drake Surveys Ltd. (2004), 184 Man.R.(2d) 284; 318 W.A.C. 284; 2004 MBCA 71, refd to. [para. 10].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 11].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 12].

Pulse Ventures Inc. v. Ogee Tables and Chairs Inc. et al. (2008), 231 Man.R.(2d) 68; 437 W.A.C. 68; 2008 BCA 107, refd to. [para. 12].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 17].

Craig Broadcast Systems Inc. v. Magid (Frank N.) Associates Inc. (1998), 123 Man.R.(2d) 252; 159 W.A.C. 252 (C.A.), refd to. [para. 21].

Antares Shipping Corp. v. Ship Capricorn et al., [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 33].

Young v. Tyco International of Canada Ltd. et al., [2008] O.AC. Uned. 670; 92 O.R.(3d) 161; 2008 ONCA 709, refd to. [para. 34].

Aikmac Holdings Ltd. v. Loewen (1989), 66 Man.R.(2d) 295 (C.A.), refd to. [para. 63].

Counsel:

P.V. Walsh, Q.C., for the appellant;

C.R. Huband and J.S. Michaels, for the respondents.

This appeal and cross-appeal were heard on October 28, 2011, before Beard and Monnin, JJ.A., and McKelvey, J.(ad hoc), of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Beard, J.A., on January 12, 2012.