MacMillan v. McCormick

MacMillan v. McCormick

The court dismissed the proceedings brought by Mr. MacMillan for want of prosecution and for being frivolous, vexatious or an abuse of process because of inordinate delay, absence of admissible evidence and duplicative filings; because Mr. MacMillan's conduct was reprehensible the court awarded costs to Ms. McCormick and the Society assessed as special costs (and indemnity in one respect); the court refused to declare abandonment or to order sale of the estate property because the evidence did not establish abandonment and the will expressly granted the brother occupancy rights such that the court lacked basis to order a sale at this time.

Citation
2007 BCSC 1727
Parties
Plaintiff / Petitioner / Respondent: Andrew MacMillan; Defendant / Respondent / Petitioner; Executrix and Trustee of the Last Will and Codicil of Jirina Bruhin, Deceased: Jennifer Eileen McCormick; Respondent / Beneficiary: The Society for Prevention of Cruelty to Animals (Duncan Branch); Respondent / Beneficiary: British Columbia Society for the Prevention of Cruelty to Animals; Deceased (testatrix): Jirina Bruhin
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 July 2007
Procedural Posture
Probate and Estate Litigation (will Contest; Executor Removal; Property of Estate) / Applications Heard; Oral Reasons for Judgment Disposing Four Related Applications (dismissals and Declarations)
Outcome
S37011: Plaintiff's action discontinued; plaintiff to pay defendant's costs assessed as special costs. S39993: Petition dismissed; petitioner to pay respondent's costs assessed as special costs. S44152: Petition dismissed as abuse of process and for want of prosecution; petitioner to pay respondents' costs assessed...
Legal Topics
Removal of Executor, Abandonment of Property, Dismissal for Want of Prosecution, Frivolous and Vexatious Pleadings, Abuse of Process, Special and Indemnity Costs, Certificate of Pending Litigation / Lis Pendens, Executor Accounting
Source Language
English
Wills and Estates Civil Procedure Property Law Costs Law Removal of Executor Abandonment of Property Dismissal for Want of Prosecution Frivolous and Vexatious Pleadings +4 more

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Parties

Andrew MacMillan

Plaintiff / Petitioner / Respondent

Jennifer Eileen McCormick

Defendant / Respondent / Petitioner; Executrix and Trustee of the Last Will and Codicil of Jirina Bruhin, Deceased

The Society for Prevention of Cruelty to Animals (Duncan Branch)

Respondent / Beneficiary

British Columbia Society for the Prevention of Cruelty to Animals

Respondent / Beneficiary

Jirina Bruhin

Deceased (testatrix)

Procedural Posture

Probate and Estate Litigation (will Contest; Executor Removal; Property of Estate) / Applications Heard; Oral Reasons for Judgment Disposing Four Related Applications (dismissals and Declarations)

Legal Issues

  1. 1 Whether proceedings by Mr. MacMillan should be dismissed for want of prosecution
  2. 2 Whether petitions disclose a reasonable cause of action or are frivolous, vexatious or an abuse of process
  3. 3 Whether Mr. MacMillan abandoned the estate real property

Ratio Decidendi

The court dismissed the proceedings brought by Mr. MacMillan for want of prosecution and for being frivolous, vexatious or an abuse of process because of inordinate delay, absence of admissible evidence and duplicative filings; because Mr. MacMillan's conduct was reprehensible the court awarded costs to Ms. McCormick and the Society assessed as special costs (and indemnity in one respect); the court refused to declare abandonment or to order sale of the estate property because the evidence did not establish abandonment and the will expressly granted the brother occupancy rights such that the court lacked basis to order a sale at this time.

Court Disposition

S37011: Plaintiff's action discontinued; plaintiff to pay defendant's costs assessed as special costs. S39993: Petition dismissed; petitioner to pay respondent's costs assessed as special costs. S44152: Petition dismissed as abuse of process and for want of prosecution; petitioner to pay respondents' costs assessed...

Orders

  • Action S37011: Plaintiff (Andrew MacMillan) to pay defendant (Jennifer McCormick) her costs up to filing of notice of discontinuance; assessed as special costs.
  • Proceeding S39993: Dismissed; petitioner (Andrew MacMillan) to pay respondent (Jennifer McCormick) her costs assessed as special costs.