Kolacz v. Burdeinei et al., (1997) 205 A.R. 54 (QB)

• Judge: P.L.J. Smith, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 15, 1997
• Citations: (1997), 205 A.R. 54 (QB)

Kolacz v. Burdeinei (1997), 205 A.R. 54 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. MY.058

John Kolacz (plaintiff/defendant by counterclaim) v. Anna Burdeinei (defendant) and Anna Burdeinei, executrix of the Estate of Peter Myziuk, deceased and the said Anna Burdeinei (plaintiffs by counterclaim) and Ann Losinski also known as Annie Lezinsky, Betty Arthur, Walter Myziuk, Gerry Myziuk also known as Garry Myziuk, John Doe, the Estate of Michael Myziuk, deceased, Annie Myziuk, executrix of the Estate of Michael Myziuk, deceased and the said Annie Myziuk (defendants by counterclaim)

(Action No. 9503 04143)

Indexed As: Kolacz v. Burdeinei et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

P.L.J. Smith, J.

May 15, 1997.

Summary:

Myziuk died in 1994 at the age of 91. He was survived by his common law wife of 41 years (now 88). Although she had indepen­dent grown children when they began co­habiting, Myziuk had no children. The plaintiff and Myziuk's family were close family friends since the 1950's. In the five years before 1994, Myziuk made substantial inter vivos gifts to relatives and the plaintiff. More than one year before his death, Myziuk executed a new will, naming the plaintiff as executor and leaving nothing to his common law wife. Myziuk previously transferred title to the home to the wife and she had $185,000 in cash upon his death. Myziuk's estate was worth $350,000. The plaintiff applied for probate. At issue was (1) whether Myziuk had testamentary capacity when he executed his new will; (2) whether the plaintiff exerted undue influence respecting the gifts and new will; (3) whether the plain­tiff and gift recipients were guilty of fraud or conspiracy respecting the gifts; and (4) whether the court should impose a con­struc­tive trust in the common law wife's favour.

The Alberta Court of Queen's Bench, in a decision reported 194 A.R. 321, held that the plaintiff proved that Myziuk had testamen­tary capacity. Although the presumption of undue influence applied, it had been rebutted. No fraud or conspiracy was proved. Although the common law wife was not the traditional farm wife left with nothing, the court did impose a constructive trust in her favour respecting a portion of the estate ($85,000). Subsequently, the court delivered the following decision regarding costs.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - Gen­eral - [See second Practice - Topic 7455 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Myziuk died at the age of 91 - He was survived by Burdeinei, his common law wife of 41 years (now 88) - Myziuk had no children - In the five years before 1994, Myziuk made substantial inter vivos gifts to rela­tives and to Kolacz - More than one year before his death, Myziuk executed a new will, naming Kolacz exec­utor and as one of the beneficiaries - He left nothing to Burdeinei - Myziuk's estate was worth $350,000 - Kolacz applied for probate - Burdeinei submitted that, inter alia, Myziuk lacked capacity to execute the will - Kolacz and the others made Bur­deinei a settlement offer - She refused to accept - The trial court awarded Burdeinei $85,000 under a constructive trust (sub­stantially less than the offer to settle) - Kolacz and the other beneficiaries applied for double costs from Burdeinei for the period fol­lowing the offer to settle - The Alberta Court of Queen's Bench allowed the appli­cation - See paragraphs 32 to 35.

Practice - Topic 7455

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Estates - Myziuk died at the age of 91 - He was survived by Burdeinei, his com­mon law wife of 41 years (now 88) - Myziuk had no children - More than one year before his death, Myziuk executed a new will, naming Kolacz executor and as one of the benefi­ciaries - He left nothing to Burdeinei - Myziuk's estate was worth $350,000 - Kolacz applied for probate - Burdeinei submitted that, inter alia, Myziuk lacked capacity to execute the will - Burdeinei also counterclaimed for a portion of the estate - Kolacz and the others made Burdeinei a settlement offer - She refused to accept - The trial court awarded Burdeinei $85,000 under a con­structive trust (substantially less than the offer to settle) - Burdeinei applied for costs against the estate - The Alberta Court of Queen's Bench declined to award Bur­deinei costs - See para­graphs 25 to 28.

Practice - Topic 7455

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Estates - Myziuk died at the age of 91 - He was survived by Burdeinei, his com­mon law wife of 41 years (now 88) - Myziuk had no children - In the five years before 1994, Myziuk made substantial inter vivos gifts to relatives and to Kolacz - More than one year before his death, Myziuk executed a new will, naming Kolacz executor and as a beneficiary - He left nothing to Burdeinei - However, My­ziuk previously transferred title to the home to Burdeinei and she had $185,000 in cash upon his death - Myziuk's estate was worth $350,000 - Kolacz applied for probate - Mack, Burdeinei's daughter, made allegations of fraud involving Kolacz - The trial court found no fraud or con­spiracy - Kolacz applied for solicitor and client costs against Mack personally as well as Burdeinei's lawyer - The Alberta Court of Queen's Bench awarded Kolacz, inter alia, costs of $85,000 from the estate and $30,000 from Burdeinei.

Practice - Topic 7470

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Unproved allegation of fraud - [See sec­ond Prac­tice - Topic 7455 ].

Cases Noticed:

Stewart v. Stewart (1982), 37 A.R. 57; 20 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 1].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank (1989), 95 A.R. 1; 64 Alta. L.R.(2d) 322 (Q.B.), refd to. [para. 1].

Dingwall, Re (1968), 65 D.L.R.(2d) 43 (Ont. H.C.), refd to. [para. 1].

Elgindata Ltd. (No. 2), Re, [1993] 1 All E.R. 232 (C.A.), refd to. [para. 1].

McAllister v. McMillan (1911), 25 O.L.R. 1, refd to. [para. 1].

Nickle, Re, [1973] 3 W.W.R. 97 (Alta. C.A.), refd to. [para. 1].

Scramstad et al. v. Stannard (1996), 190 A.R. 1; 42 Alta. L.R.(3d) 360 (Q.B.), refd to. [paras. 1, 2].

Cutcliffe Estate, Re; Le Duc v. Veness et al., [1958] 3 All E.R. 642 (C.A.), refd to. [para. 1].

Timmons Estate, Re (1991), 137 A.R. 161 (Q.B.), refd to. [para. 1].

De Clevercal v. Jones (1908), 1 Alta. L.R. 286, refd to. [para. 1].

Orleski and Kruger v. Reid, [1985] 3 W.W.R. 560; 38 Sask.R. 38 (Q.B.), refd to. [para. 1].

Toronto General Trusts Corp. v. Maryfield (Rural Municipality), [1945] 3 W.W.R. 625 (Sask. C.A.), refd to. [para. 1].

Van Brabant Estate, Re (1987), 76 A.R. 204; 50 Alta. L.R.(2d) 174 (Surr. Ct.), refd to. [para. 1].

Vanderclay Development Co. v. Inducon Engineering Ltd., [1969] 1 O.R. 41; 1 D.L.R.(3d) 337 (H.C.), refd to. [para. 1].

Arrotta et al. v. AWA Light Corp. (1995), 177 A.R. 316; 36 Alta. L.R.(3d) 134 (Q.B.), refd to. [para. 1].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 1].

Boyko v. Sitter (1964), 50 W.W.R.(N.S.) 616 (Sask. C.A.), refd to. [para. 1].

McCardell Estate v. Cushman (1990), 104 A.R. 23 (Q.B.), refd to. [paras. 1, 2].

Conway v. George's Farm Centre Ltd. (1986), 69 A.R. 82; 44 Alta. L.R.(2d) 115 (Q.B.), refd to. [para. 1].

Whittle v. Davies (1987), 104 A.R. 336; 55 Alta. L.R.(2d) 391 (C.A.), refd to. [paras. 1, 2].

North American Systemshops Ltd. v. King & Co. et al. (1989), 99 A.R. 138 (Q.B.), refd to. [para. 1].

Seal v. Ketza (1993), 142 A.R. 386; 12 Alta. L.R.(3d) 41 (Q.B.), refd to. [para. 1].

Bray Associates Inc. v. Electrical Contacts Ltd. (1988), 30 C.P.C.(2d) 265 (Ont. H.C.), refd to. [para. 1].

Simpson v. Bender et al. (1996), 180 A.R. 220 (Q.B.), refd to. [para. 1].

Dilcon Constructors Ltd. v. ANC Developments Inc. (1996), 188 A.R. 241; 42 Alta. L.R.(3d) 132 (Q.B.), refd to. [para. 1].

Public School Boards' Association (Alta.) et al. v. Alberta (Attorney General) (1996), 42 Alta. L.R.(3d) 443 (C.A.), refd to. [para. 1].

Myers v. Elman, [1940] All E.R. 484 (H.L.), refd to. [para. 1].

Jones, Re, [1870] 6 L.R. Ch. App. 497, refd to. [para. 1].

Semenoff v. Pidwerbisky (1955), 14 W.W.R.(N.S.) 322 (Sask. Q.B.), refd to. [para. 1].

Davy-Chiesman v. Davy-Chiesman, [1984] Fam. 48; [1984] 2 W.L.R. 291; [1984] 1 All E.R. 321 (C.A.), refd to. [para. 1].

Pearson v. Pearson, [1969] 3 W.L.R. 722, refd to. [para. 1].

Atchison v. Inkster (1983), 47 B.C.L.R. 222; 15 E.T.R. 1 (C.A.), refd to. [para. 2].

Brown and 154360 Alberta Ltd. v. Shortreed Estate and Shortreed, Shoctor & Co. (1988), 86 A.R. 265 (C.A.), refd to. [para. 2].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al., [1995] 3 W.W.R. 716; 170 A.R. 341 (Q.B.), refd to. [para. 2].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al., [1994] 8 W.W.R. 237; 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 2].

Kiffiak and Kiffiak v. Whipple's Estate; Dagenstein v. Whipple Estate (1979), 16 A.R. 460 (T.D.), refd to. [para. 2].

Rosin v. Rosin (1994), 162 A.R. 162; 83 W.A.C. 162 (C.A.), refd to. [para. 2].

Twist v. Tye, [1902] P. 92, refd to. [para. 2].

Statutes Noticed:

Rules of Court (Alta.), rule 601 [para. 30].

Authors and Works Noticed:

Alberta Civil Procedure Handbook (1997), p. 329 [para. 1].

Schnurr, Brian, Estate Litigation - Who Pays the Costs? (1990-91), 11 E. & T.J. 52, generally [para. 1].

Stevenson and Côté, Civil Procedure Guide (1992), pp. 516, 517 [para. 1].

Counsel:

Brian S. Sussman and David W. Hrycun (Biamonte Cairo & Shortreed), for the plaintiff;

Peter B. Michalyshyn (Chatwin Cox) and Travis Huckell (Huckell Taskey & Belzil), for the defendant/plaintiff by counterclaim;

Remi G. St. Pierre (McCuaig Desrochers), for the defendants by counterclaim;

Louis M. Belzil (Shores Belzil), for Travis Huckell;

Gordon D. Honey, for Mack.

This case was heard before P.L.J. Smith, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 15, 1997.