Perzan v. Struk, (2006) 205 Man.R.(2d) 20 (CA)

• Judge: Huband, Monnin and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 13, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 205 Man.R.(2d) 20 (CA);2006 MBCA 32

Perzan v. Struk (2006), 205 Man.R.(2d) 20 (CA);

    375 W.A.C. 20

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. MR.010

Yvonne Perzan (applicant/respondent) v. Mildred Ina Struk (respondent/respondent)

Jeremy Justin Perzan (applicant/appellant) v. Mildred Ina Struk (respondent/respondent)

(AI 05-30-06283; 2006 MBCA 32)

Indexed As: Perzan v. Struk

Manitoba Court of Appeal

Huband, Monnin and Freedman, JJ.A.

March 15, 2006.

Summary:

An affidavit filed in support of a committeeship application by Jeremy Perzan referred to the will of the person alleged to be incompetent (his grandmother). The will was attached to the affidavit as an exhibit. Jeremy Perzan's mother, who had filed a competing committeeship application, sought to have reference to the will struck and the will declared inadmissible.

A Master of the Manitoba Court of Queen's Bench, without providing reasons, allowed the motion to strike the offending paragraph and the will. Jeremy Perzan appealed.

The Manitoba Court of Queen's Bench, in oral reasons for decision not reported in this series of reports, dismissed the appeal on the grounds of relevance and public policy. Jeremy Perzan appealed again.

The Manitoba Court of Appeal dismissed the appeal.

Editor's Note: For a related case see 202 Man.R.(2d) 181.

Persons of Unsound Mind - Topic 728.1

Committees (incl. substitute decision maker) - Appointment - Considerations - Incompetent's will - At issue on this appeal was whether the will of a person who was the subject of competing committeeship applications should be admitted as part of the affidavit evidence advanced by one of the applicants - A motions judge held that the reference to the will in the affidavit and the will should be struck on the grounds of relevance and public policy - On appeal, the Manitoba Court of Appeal held that the motions judge was wrong in concluding at the preliminary stage that the document was not relevant to the committeeship applications - However the judge was correct in ruling the will to be inadmissible - There was no general rule that the will of a person who was still alive could not, under any circumstances, be tendered as an exhibit in a legal proceeding - The court noted that there were cases where the wills had been admitted for a collateral purpose where the validity of the document was either undisputed or of no real significance - In this case, the will should be excluded because, if the will remained as an exhibit, there was a very real danger that the committeeship hearing would be diverted into a hearing to establish the validity of the will.

Cases Noticed:

Marlborough (Duke) v. Godolphin (Lord) (1750), 2 Ves. Sen. 61; 28 E.R. 41 (H.C. of Ch.), refd to. [para. 18].

Schroeder, Re (1965), 8 C.B.R.(N.S.) 156 (Ont. S.C. Bktcy.), refd to. [para. 20].

B.R.A. et al. v. M.S. et al. (2005), 383 A.R. 264; 16 C.P.C.(6th) 374; 2005 ABQB 549, refd to. [para. 21].

Westminster's Deed of Appointment, Re, [1959] Ch. 265 (C.A.), refd to. [para. 22].

Smith (deceased), Re, [2001] 3 All E.R. 552 (Ch. D.), refd to. [para. 23].

Fraser v. Giguere, [1995] M.J. No. 479 (Q.B.), refd to. [para. 24].

Petrykanyn v. Shwaluk (1996), 108 Man.R.(2d) 65 (Q.B.), refd to. [para. 29].

Del Grande v. Sebastian (1999), 96 O.T.C. 374; 27 E.T.R.(2d) 295 (Sup. Ct.), refd to. [para. 30].

Todosichuk v. Daviduik (2004), 190 Man.R.(2d) 254; 335 W.A.C. 254; 2004 MBCA 191, refd to. [para. 32].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1976), vol. 17, p. 154, para. 216 [para. 16].

Williams on Wills (7th Ed. 1995), vol. 1, p. 8 [para. 30].

Counsel:

B.R. Mayes, for the appellant;

W.W. Riedel, Q.C., for the respondent, Y. Perzan.

This appeal was heard on February 13, 2006, before Huband, Monnin, and Freedman, JJ.A., of the Manitoba Court of Appeal. Huband, J.A., delivered the following judgment for the court on March 15, 2006.