Melendy v. Drodge et al., (2015) 369 Nfld. & P.E.I.R. 105 (NLTD(G))

JudgeButler, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateJune 30, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 369 Nfld. & P.E.I.R. 105 (NLTD(G))

Melendy v. Drodge (2015), 369 Nfld. & P.E.I.R. 105 (NLTD(G));

    1150 A.P.R. 105

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.012

Judy Melendy (first plaintiff) and Lloyd Melendy (second plaintiff) v. Lisa Drodge (first defendant), Tonia Rowe (second defendant), Cheryl Rowe (third defendant) and Lisa Green (fourth defendant)

(201201G5271; 2015 NLTD(G) 96)

Indexed As: Melendy v. Drodge et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Butler, J.

June 30, 2015.

Summary:

The plaintiffs, proponents of a will, brought an action for proof of the will in solemn form. The defendants challenged the will on the ground of capacity. The fourth defendant moved for nonsuit under rule 42.08 of the Rules of the Supreme Court after Phase 1 of the trial (i.e., the stage where the plaintiffs had the opportunity to present evidence to prove on a balance of probabilities that the will was executed with the necessary formalities and that it was read over to or by a testator who appeared to understand it).

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the motion for nonsuit.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available - [See all Practice - Topic 5390.3 ].

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that a non-suit application had to be brought before a defendant opened their case - See paragraph 16.

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The plaintiffs, proponents of a will, sought proof in solemn form - After the first phase of the trial, the fourth defendant moved for non-suit (Rules of the Supreme Court, rule 42.08) - The plaintiffs argued that the non-suit motion was precluded because the defendant's counsel had already opened her case by entering exhibits through cross-examination of the plaintiffs' witness, on which the defendant sought to rely to ground the non-suit application - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the plaintiffs had not satisfied the court that the defendant had in fact opened her case and that the preliminary objection to the timing of the defendant's non-suit motion had merit - The court also rejected the plaintiffs' alternative position that the defendant's motion was premature - See paragraphs 11 to 28.

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The Newfoundland and Labrador Supreme Court, Trial Division (General), discussed the judge's role on a non-suit under rule 42.08 of the Rules of the Supreme Court - See paragraphs 29 to 34.

Practice - Topic 5390.3

Dismissal of action - Application or motion for dismissal - Nonsuit - At time other than after close of plaintiff's case - The plaintiffs, proponents of a will, sought proof of the will in solemn form - The defendants challenged the will on the ground of capacity - Phase 1 of the trial proceeded with the plaintiffs having a chance to present evidence to prove formalities and that the will was read over to or by a testator who appeared to understand it - After Phase 1, the fourth defendant moved for nonsuit - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the motion - It could be inferred that the formalities were met; therefore, the presumption that the testator approved the wills contents and had testamentary capacity applied - For purposes of the non-suit motion, on the facts and the law, the defendant had not established that "no case had been made out" in Phase 1 of the trial - In case it was mistaken on the extent of the presumption, the court determined that a reasonable trier of the fact could infer from the evidence the deceased had the required mental capacity and knowledge of the extent of her estate - See paragraphs 34 to 99.

Cases Noticed:

Lethbridge Estate v. McCormack et al. (2009), 287 Nfld. & P.E.I.R. 183; 885 A.P.R. 183; 2009 NLTD 86, refd to. [para. 2].

Fennell v. Fennell (2012), 319 Nfld. & P.E.I.R. 269; 992 A.P.R. 269; 2012 NLTD(G) 26, refd to. [para. 2].

Doyle v. Roberts et al. (2015), 361 Nfld. & P.E.I.R. 127; 1122 A.P.R. 127; 2015 PESC 2, refd to. [para. 12].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 24].

Vout v. Hay - see Hay Estate, Re.

Pike v. Loblaws Inc. T/A Dominion (2005), 244 Nfld. & P.E.I.R. 181; 726 A.P.R. 181; 2005 NLCA 9, refd to. [para. 29].

Hodder et al. v. Waddleton et al. (1990), 87 Nfld. & P.E.I.R. 52; 271 A.P.R. 52 (Nfld. C.A.), refd to. [para. 29].

Rowsell v. Shubayoga Homes Inc. (2013), 339 Nfld. & P.E.I.R. 296; 1054 A.P.R. 296; 2013 NLTD(G) 113, refd to. [para. 31].

Coleman v. Coleman Estate (2008), 272 N.S.R.(2d) 347; 69 A.P.R. 347; 2008 NSSC 396, refd to. [para. 42].

Beal v. Henri, [1950] O.R. 780; [1951] 1 D.L.R. 260 (C.A.), refd to. [para. 68].

Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, refd to. [para. 74].

Ouderkirk v. Ouderkirk, [1936] S.C.R. 619, refd to. [para. 75].

Schwartz, Re, [1970] 2 O.R. 61 (C.A.), refd to. [para. 76].

Russell v. Fraser (1980), 118 D.L.R.(3d) 733 (B.C.C.A.), refd to. [para. 77].

Martin Estate, Re; MacGregor v. Ryan et al., [1965] S.C.R. 757; 53 D.L.R.(2d) 126; 1965 CarswellOnt 72, refd to. [para. 79].

MacGregor v. Ryan et al. - see Martin Estate, Re.

Laszlo et al. v. Lawton et al., [2013] B.C.T.C. Uned. 305; 2013 BCSC 305, refd to. [para. 87].

Kournossoff Estate, Re, [2000] B.C.T.C. 563; 2000 BCSC 1195, refd to. [para. 88].

Pike v. Stone et al. (1999), 179 Nfld. & P.E.I.R. 218; 546 A.P.R. 218; 29 E.T.R.(2d) 292 1999 CarswellNfld 191 (T.D.), refd to. [para. 90].

Statutes Noticed:

Rules of Court (Nfld. & Lab.), Supreme Court Rules, 1986, rule 42.08 [para. 10].

Supreme Court Rules (Nfld. & Lab.) - see Rules of Court (Nfld. & Lab.), Supreme Court Rules.

Wills Act, R.S.N.L. 1990, W-10, sect. 2(1) [para. 2].

Counsel:

Philip J. Buckingham, for the plaintiffs;

Lisa Drodge, on her own behalf;

Tonia Rowe, on her own behalf;

Cheryl Rowe, on her own behalf;

Paul D. Dicks, Q.C., for Lisa Green.

This motion was heard on June 9-12 and 15, 2015, in St. John's, NL, before Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on June 30, 2015.

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