Prokopetz Estate, Re, 2008 SKQB 276

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Ottenbreit, J.
• Citation: 2008 SKQB 276,(2008), 319 Sask.R. 238 (QB)
• Date: 04 July 2008

Prokopetz Estate, Re (2008), 319 Sask.R. 238 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JL.022

In The Matter Of the Estate of Sherry Lynn Prokopetz

Gerald Prokopetz (applicant) v. Trena Ruf (respondent)

(2007 SUR No. 618)

Trena Ruf (plaintiff) v. Gerald Prokopetz (defendant) and Hunter Miller LLP (respondents)

(2006 Q.B.G. No. 1171; 2008 SKQB 276)

Indexed As: Prokopetz Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ottenbreit, J.

July 4, 2008.

Summary:

The late Sherry Prokopetz allegedly signed last wills and testaments dated September 17, 2005, January 31, 2005 and May 5, 2004. There were two related actions. McMurtry, J., directed a trial of an issue to determine the legitimacy of the wills and an insurance beneficiary designation. Gerald Prokopetz applied for, inter alia, an order removing a law firm as solicitors for Ruf, on the basis that a lawyer from that firm had prepared and witnessed one of the impugned wills and a power of attorney and would be required to testify.

The Saskatchewan Court of Queen's Bench granted an order restraining the law firm from acting for Ruf.

Barristers and Solicitors - Topic 787

Duty to court - Disqualification of counsel - When available (incl. grounds) - The late Sherry Prokopetz allegedly signed last wills and testaments dated September 17, 2005, January 31, 2005 and May 5, 2004 - There were two related actions - McMurtry, J., directed a trial of an issue to determine the legitimacy of the wills and an insurance beneficiary designation - The wills were to be proved in reverse chronological order - Gerald Prokopetz applied for, inter alia, an order removing a law firm as solicitors for Ruf, on the basis that a lawyer (Hunter) from that firm had prepared and witnessed the January 31, 2005 will and a power of attorney dated April 21, 2005 and would be required to testify (Code of Professional Conduct (Sask.), Chapter IX, rule 10) - Ruf conceded that at some point Hunter might have to give evidence but argued that it was early in the litigation process - She argued that the first issue was whether the September 2005 will was valid and Hunter had nothing to do with the execution of that will and therefore would not be a witness respecting that will - She argued that it was only if and when it was necessary to move on to proof of the other two wills that Hunter would be necessary as a witness - The Saskatchewan Court of Queen's Bench granted an order restraining the law firm from acting for Ruf - McMurtry, J.'s, order contemplated one hearing respecting the wills, not three separate ones - As the matter moved forward to discovery and to possible trial, it was inappropriate for the law firm to continue to act for Ruf - This was even more so since the action also included a trial of the issue of whether Sherry Prokopetz had the capacity to understand the nature and effect of the power of attorney dated April 21, 2005 for which Hunter would most assuredly be required to testify - See paragraphs 10 to 12.

Barristers and Solicitors - Topic 803

Duty to court - Counsel as a witness - Effect of - [See Barristers and Solicitors - Topic 787 ].

Barristers and Solicitors - Topic 808

Duty to court - Counsel as a witness - Order of disqualification - [See Barristers and Solicitors - Topic 787 ].

Cases Noticed:

Saskatoon Credit Union Ltd. v. Creighton Holdings Ltd. (1987), 64 Sask.R. 297 (Q.B.), refd to. [para. 10].

Coe v. Sturgeon General Hospital District No. 100 et al., [2002] 2 W.W.R. 334; 274 A.R. 313; 2000 ABQB 698, refd to. [para. 10].

Szeto (George S.) Investments Ltd. et al. v. Ott et al., [2006] O.T.C. 308; 147 C.W.S.(3d) 27 (Sup. Ct.), refd to. [para. 10].

Authors and Works Noticed:

Law Society of Saskatchewan, Code of Professional Conduct, c. 9, rule 10 [para. 10].

Counsel:

Timothy Stodalka, for the applicant/defendant;

Rani L. Grewall, for the respondents.

This application was heard before Ottenbreit, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who released the following judgment on July 4, 2008.