Mical Estate, Re, 2014 MBQB 202

JudgeMcCawley, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateOctober 17, 2014
JurisdictionManitoba
Citations2014 MBQB 202;(2014), 309 Man.R.(2d) 317 (QB)

Mical Estate, Re (2014), 309 Man.R.(2d) 317 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. OC.019

In The Matter Of: The Estate of Stephen Walter Mical, Deceased.

Rosa Bergamorto, as Executrix (Not Appointed) of The Estate of Stephen Walter Mical (applicant) v. The Estate of Stephen Walter Mical (respondent)

Orest Stanley Mical (applicant) v. Rosa Bergamorto, as Executrix of The Estate of Stephen Walter Mical (respondent)

(PR 13-01-96027; 2014 MBQB 202)

Indexed As: Mical Estate, Re

Manitoba Court of Queen's Bench

Winnipeg Centre

McCawley, J.

October 17, 2014.

Summary:

Mical executed a will under which Bergamorto was appointed executrix. Under the will, 75% of the estate went to charities and 25% to Bergamorto. Mical's son, Orest, filed a caveat, claiming an interest in the estate and alleging lack of testamentary capacity, undue influence, etc. Bergamorto applied for probate. Orest filed a notice of application, requesting extensive relief. Orest asserted that Mical had always said that he would "take care of" Orest's mother when he died. Bergamorto asserted that Orest lacked standing to bring the application and, even if he had standing, the caveat should be struck as having been filed vexatiously.

The Manitoba Court of Queen's Bench agreed that Orest lacked standing. However, as Orest had been acting for his mother under a power of attorney, he could have brought the proceedings on her behalf. That was a matter that could be rectified by the necessary amendment to the pleadings. Determination of whether the caveat was filed vexatiously required a consideration of a number of matters that should not be decided on an application. Queen's Bench Rule 15.02(5) gave the court the power to direct a trial. The pleadings were to be amended as indicated and a pretrial conference was directed.

Practice - Topic 217

Persons who can sue and be sued - Individuals and corporations - Status or standing - Persons having interest in an estate - Mical executed a will under which Bergamorto was appointed executrix - Under the will, 75% of the estate went to charities and 25% to Bergamorto - Mical's son, Orest, filed a caveat, claiming an interest in the estate and alleging lack of testamentary capacity, undue influence, etc. - Bergamorto applied for probate - Orest filed a notice of application, requesting extensive relief - Orest asserted that Mical had always said that he would "take care of" Orest's mother when he died - Bergamorto asserted that Orest lacked standing to bring the application and, even if he had standing, the caveat should be struck as having been filed vexatiously - The Manitoba Court of Queen's Bench agreed that Orest lacked standing - If the will was invalidated, Orest's mother, as the only next of kin of Mical, was the sole beneficiary - At best, Orest had a "mere expectancy - of acquiring a right" if the estate flowed to his mother - However, as Orest had been acting for his mother under a power of attorney, he could have brought the proceedings on her behalf - That was a matter that could be rectified by the necessary amendment to the pleadings - Fairness to all concerned weighed in favour of doing so - Determination of whether the caveat was filed vexatiously required a consideration of a number of matters that should not be decided on an application - Queen's Bench Rule 15.02(5) gave the court the power to direct a trial - The pleadings were to be amended as indicated and a pretrial conference was directed.

Practice - Topic 222

Persons who can sue and be sued - Individuals and corporations - Status or standing - Persons interested under written instrument (Will, Deed, etc.) - [See Practice - Topic 217 ].

Practice - Topic 651

Parties - Adding or substituting parties - Adding or substituting plaintiffs - Circumstances when allowed - [See Practice - Topic 217 ].

Practice - Topic 3082

Applications and motions - Applications - Disposition - Application to proceed as action - [See Practice - Topic 217 ].

Cases Noticed:

Dabkus v. Dabkus Estate, [1997] O.T.C. Uned. 23 (Gen. Div.), refd to. [para. 14].

Byrne and O'Reilly et al. v. Power (1988), 75 Nfld. & P.E.I.R. 153; 234 A.P.R. 153 (Nfld. T.D.), refd to. [para. 14].

Kidd et al. v. Canada Life Assurance Co. et al., [2010] O.T.C. Uned. 1097; 2010 ONSC 1097, refd to. [para. 15].

Garwood v. Garwood Estate (2007), 225 Man.R.(2d) 30; 419 W.A.C. 30; 2007 MBCA 160, refd to. [para. 19].

Counsel:

Candace A. Grammond, for R. Bergamorto;

Michelle A. Laham Szutiak, for O.S. Mical.

These applications were heard by McCawley, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 17, 2014.

To continue reading

Request your trial
2 practice notes
  • Digest: Wilson v Adams Estate, 2018 SKQB 245
    • Canada
    • Saskatchewan Law Society Case Digests
    • 18 Septiembre 2019
    ...Cases Considered: 101043147 Saskatchewan Ltd. v Colliers McClocklin Real Estate Corp., 2004 SKQB 323, 251 Sask R 285 Bergamorto v Mical, 2014 MBQB 202, 309 Man R (2d) 317 Black v Cross, 2011 BCSC 735 British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, [2017] 2 SCR 795 Carlson v L......
  • WILSON v. STAPLES, 2018 SKQB 245
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 12 Septiembre 2018
    ...validity of a will: Dabkus v Dabkus Estate, [1997] OJ No 96 (Ont Ct J) (QL), aff’d [1999] OJ No 2978 (QL) (Ont CA); Bergamorto v Mical, 2014 MBQB 202, 309 Man R (2d) [51] Where a party will be in no different position, from a legal standpoint, whether or not their application is successful,......
1 cases
  • WILSON v. STAPLES, 2018 SKQB 245
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 12 Septiembre 2018
    ...validity of a will: Dabkus v Dabkus Estate, [1997] OJ No 96 (Ont Ct J) (QL), aff’d [1999] OJ No 2978 (QL) (Ont CA); Bergamorto v Mical, 2014 MBQB 202, 309 Man R (2d) [51] Where a party will be in no different position, from a legal standpoint, whether or not their application is successful,......
1 books & journal articles
  • Digest: Wilson v Adams Estate, 2018 SKQB 245
    • Canada
    • Saskatchewan Law Society Case Digests
    • 18 Septiembre 2019
    ...Cases Considered: 101043147 Saskatchewan Ltd. v Colliers McClocklin Real Estate Corp., 2004 SKQB 323, 251 Sask R 285 Bergamorto v Mical, 2014 MBQB 202, 309 Man R (2d) 317 Black v Cross, 2011 BCSC 735 British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, [2017] 2 SCR 795 Carlson v L......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT