Zilberman Estate, Re; Chochinov v. Davis, (1980) 4 Man.R.(2d) 325 (CA)

JudgeMatas, O'Sullivan and Huband, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateJune 25, 1980
JurisdictionManitoba
Citations(1980), 4 Man.R.(2d) 325 (CA)

Zilberman Estate, Re (1980), 4 Man.R.(2d) 325 (CA)

MLB headnote and full text

Re Zilberman's Estate; Chochinov v. Davis, Davis and Davis

Indexed As: Zilberman Estate, Re; Chochinov v. Davis

Manitoba Court of Appeal

Matas, O'Sullivan and Huband, JJ.A.

June 25, 1980.

Summary:

This case arose out of the defendants' motion for dismissal of the plaintiff's claim or alternatively for an order staying the action. An old woman, who had been domiciled in Manitoba, died in Israel after living there for a year. She left a will made in Israel, which left her estate to a daughter living in Israel. The plaintiff, who was a daughter of the old woman and lived in Manitoba, challenged the validity of the will in actions brought in both Israel and Manitoba against the Israeli daughter, her husband and son. There were substantial assets in both places. The defendants applied for a dismissal or stay of the plaintiff's Manitoba action.

The Manitoba Surrogate Court in a judgment reported at paragraphs 36 to 77 below dismissed the application. The defendants appealed.

The Manitoba Court of Appeal dismissed the appeal and affirmed the judgment of the Surrogate Court.

Conflict of Laws - Topic 6084

Succession - Wills - Actions - Forum conveniens - An old woman, who had been domiciled in Manitoba, died in Israel after living there for a year - She left a will made in Israel, which left her estate to a daughter living in Israel - The will was challenged by a daughter in Manitoba by actions against the Israeli daughter, her husband and son in both Israel and Manitoba - There were substantial assets in both places - The defendants moved for a dismissal of the Manitoba action on the ground that the matter should be determined by the Israel action - The Manitoba Surrogate Court refused to dismiss the action - The Surrogate Court held that there was no doubt about the jurisdiction of the Manitoba Court over the matter, because of the location of assets in Manitoba and the possible domicile of the deceased in Manitoba - See paragraphs 52 to 56.

Executors and Administrators - Topic 540

Appointment - Administrators - Administrator pendente lite - An old woman, who had been domiciled in Manitoba, died in Israel after living there for a year - She left a will made in Israel, which left her estate to a daughter living in Israel - The validity of the will was challenged by a daughter living in Manitoba by actions in both Israel and Manitoba - There were substantial assets in both places - The Manitoba daughter applied for the appointment of Royal Trust as the administrator pendente lite of the estate - Royal Trust was the agreed administrator of the estate of the woman's husband and was still active in that capacity - The daughter's action would not be determined for some time and an income tax claim was also pending against the woman's estate - The Manitoba Court of Appeal affirmed the appointment by the Surrogate Court of Royal Trust as administrator pendente lite - See paragraphs 31 to 35 and 71 to 74.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - An old woman, who had been domiciled in Manitoba, died in Israel after living there for a year - She left a will made in Israel, which left her estate to a daughter living in Israel - The will was challenged by a daughter in Manitoba by actions against the Israeli daughter, her husband and son in both Israel and Manitoba - There were substantial assets in both places - The defendants applied for a stay of the Manitoba action - The Manitoba Court of Appeal affirmed the refusal of the Surrogate Court to grant a stay - See paragraphs 5 to 30 - The Surrogate Court thoroughly discussed the principles governing the granting of a stay of proceedings in the circumstances and held that two conditions must be satisfied to justify a stay - Firstly, the defendant must satisfy the court that the continuance of the action would work an injustice, because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way - Secondly, the defendant must show that the stay will not cause an injustice to the plaintiff - The Surrogate Court held that the Manitoba action was not oppressive or vexatious to the defendant, because the will was required to be proved in Manitoba in any event, there was real and personal property of the deceased in Manitoba, there were real connections between the deceased and Manitoba and she was possibly domiciled there, there was evidence relating to the deceased's testamentary capacity in Manitoba and Manitoba law might govern the issue of testamentary capacity - See paragraphs 57 to 70.

Cases Noticed:

The New York Breweries Company, Limited v. The Attorney General, [1899] A.C. 62, appld. [para. 15].

Re Barclays Bank Limited et al. (1966), 57 W.W.R.(N.S.) 552, appld. [para. 15].

In re Annesley, [1926] 1 Ch. 692, refd to. [para. 16].

Van Vogt v. All-Canadian Group Distributors Limited (1967), 60 W.W.R.(N.S.) 729 (Man. Q.B.), affd. 61 W.W.R.(N.S.) 704 (Man. C.A.), consd. [paras. 18, 57].

Moreno et al. v. Norwich Union Fire Insurance Society Ltd., [1971] 1 O.R. 625 (Ont. H.C.), dist. [para. 18].

Atlantic Star, [1973] 2 All E.R. 175, appld. [paras. 24, 58].

Rockware Glass Ltd. v. MacShannon, [1978] A.C. 795, consd. [para. 25].

Empire-Universal Films Limited et al. v. Rank et al., [1947] O.R. 775, consd. [para. 25].

Re Petursson, Petursson and Petursson (1965), 51 D.L.R.(2d) 660, consd. [para. 25].

St. Pierre v. South American Stores Limited, [1936] 1 K.B. 382, appld. [para. 59].

In the Estate of Fuld, Deceased (No. 3), [1968] P. 675 [para. 65].

In Re Annesley; Davidson v. Annesley, [1926] 1 Ch. 692 [para. 68].

Statutes Noticed:

Surrogate Courts Act, R.S.M. 1970, c. C-290, sect. 21 [paras. 15, 52].

Wills Act, R.S.M. 1970, c. W-150, sect. 39 [paras. 15, 54].

Authors and Works Noticed:

Cheshire, Private International Law (8th Ed.), p. 489 [para. 67].

Dicey and Morris, The Conflict of Laws (9th Ed.), pp. 217 [para. 26]; 579 [para. 15]; 593 [para. 66].

Counsel:

B.J. Kelsh, for the defendants/appellants;

A.K. Twaddle, Q.C., for the plaintiff/respondent;

P.J. Brett, on watching brief for Royal Trust.

This case was heard on June 25, 1980, at Winnipeg, Manitoba, before MATAS, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On June 25, 1980, MATAS, J.A., delivered the following judgment for the Court of Appeal:

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6 practice notes
  • Foote Estate, Re, 2009 ABQB 654
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 1 Mayo 2009
    ...Security, Re, [1986] AATA 45, refd to. [para. 13]. Ross v. Ross, [1930] A.C. 1, refd to. [para. 13]. Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 325; 113 D.L.R.(3d) 715 (C.A.), refd to. [para. Gillespie et al. v. Grant et al. (1992), 132 A.R. 288; 4 Alta. L.R.(3d) 122 (Surr. Ct.), refd t......
  • Succession
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • 21 Junio 2016
    ...2 UCE & A 341 (Upper Canada CA). See also Zilberman Estate v Davis (1980), 4 Man R (2d) 336 at paras 31-32 (Surr Ct), afPd (1980) 4 Man R (2d) 325 86 Re Hellmann’s Will (1863), LR 2 Eq 363. 87 See Walker, above note 6 at para 27.4.a. 88 [1942] 3 DLR 207 at 208 (Ont HCJ). See Curati v Perdon......
  • Gillespie et al. v. Grant et al., (1992) 132 A.R. 288 (SurCt)
    • Canada
    • 14 Agosto 1992
    ...(Ont. S.C.), refd to. [para. 21]. Zilberman's Estate, Re; Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 336; 6 E.T.R. 187 (Surr. Ct.), 4 Man.R.(2d) 325; 7 E.T.R. 207 (C.A.), refd to. [para. Ross, Re; Ross v. Waterfield, [1930] 1 Ch. 377, refd to. [para. 25]. Fuld's Estate (No. 3), Re; Hart......
  • Jepson Estate v. Westfair Foods Ltd., (1989) 61 Man.R.(2d) 56 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 20 Abril 1989
    ...Ltd. #2 (1969), 9 D.L.R.(3d) 407 (C.A.), refd to. [para. 28]. Chochinov v. Davis et al., [1980] 4 W.W.R. 249; 4 Man.R.(2d) 336, affd. 4 Man.R.(2d) 325; 113 D.L.R.(3d) 715, consd. [para. St. Pierre et al. v. South American Stores Limited et al., [1936] 1 K.B. 382, refd to. [para. 29]. Statut......
  • Request a trial to view additional results
5 cases
  • Foote Estate, Re, 2009 ABQB 654
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 1 Mayo 2009
    ...Security, Re, [1986] AATA 45, refd to. [para. 13]. Ross v. Ross, [1930] A.C. 1, refd to. [para. 13]. Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 325; 113 D.L.R.(3d) 715 (C.A.), refd to. [para. Gillespie et al. v. Grant et al. (1992), 132 A.R. 288; 4 Alta. L.R.(3d) 122 (Surr. Ct.), refd t......
  • Gillespie et al. v. Grant et al., (1992) 132 A.R. 288 (SurCt)
    • Canada
    • 14 Agosto 1992
    ...(Ont. S.C.), refd to. [para. 21]. Zilberman's Estate, Re; Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 336; 6 E.T.R. 187 (Surr. Ct.), 4 Man.R.(2d) 325; 7 E.T.R. 207 (C.A.), refd to. [para. Ross, Re; Ross v. Waterfield, [1930] 1 Ch. 377, refd to. [para. 25]. Fuld's Estate (No. 3), Re; Hart......
  • Jepson Estate v. Westfair Foods Ltd., (1989) 61 Man.R.(2d) 56 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 20 Abril 1989
    ...Ltd. #2 (1969), 9 D.L.R.(3d) 407 (C.A.), refd to. [para. 28]. Chochinov v. Davis et al., [1980] 4 W.W.R. 249; 4 Man.R.(2d) 336, affd. 4 Man.R.(2d) 325; 113 D.L.R.(3d) 715, consd. [para. St. Pierre et al. v. South American Stores Limited et al., [1936] 1 K.B. 382, refd to. [para. 29]. Statut......
  • Dal Ponte v. Northern Manitoba Native Lodges Inc. et al., (1990) 64 Man.R.(2d) 247 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • 11 Abril 1990
    ...Petursson v. Petursson, 51 D.L.R.(2d) 660 (Man. C.A.), refd to. [para. 27]. Zilberman's Estate, Re; Chochinov v. Davis et al. (1980), 4 Man.R.(2d) 325 (C.A.), refd to. [para. Rafferty's Restaurants Ltd. v. Sawchuk (1983), 20 Man.R.(2d) 440, refd to. [para. 27]. DeBono v. Smith et al. (1989)......
  • Request a trial to view additional results
1 books & journal articles
  • Succession
    • Canada
    • Irwin Books Conflict of Laws. Second Edition
    • 21 Junio 2016
    ...2 UCE & A 341 (Upper Canada CA). See also Zilberman Estate v Davis (1980), 4 Man R (2d) 336 at paras 31-32 (Surr Ct), afPd (1980) 4 Man R (2d) 325 86 Re Hellmann’s Will (1863), LR 2 Eq 363. 87 See Walker, above note 6 at para 27.4.a. 88 [1942] 3 DLR 207 at 208 (Ont HCJ). See Curati v Perdon......

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