Imlach et al. v. Worth et al.

Imlach et al. v. Worth et al.

The court confirmed probate of the November 5, 1996 will and set aside the three purported codicils as invalid because they were not properly witnessed; the court granted leave to compromise the probate action under Rule 62(13) but expressly declined to endorse that the compromise must mirror the February 5, 2004...

Source-derived case information.

Citation
2005 BCSC 1039
Parties
Plaintiff: Eric James Imlach; Plaintiff: Isabel Warner; Defendant / Named Executrix: Mary Worth; Defendant: John McFarlane; Defendant / Executrix: Hazel Carmichael McDonald; Defendant: Evelyn Gillespie; Defendant: Robert McFarlane; Defendant: Ellie Rubel; Defendant: Joy Burns Ann Grandall; Testator: Esther Coghill Steven (deceased)
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
8 July 2005
Procedural Posture
Estate/probate / Application to Confirm Probate, Set Aside Codicils and for Leave to Compromise (rule 62(13))
Outcome
Probate of the will confirmed; probate of three codicils set aside as invalid; leave to compromise granted (not necessarily on terms of the Minutes of Settlement); plaintiffs awarded costs on Scale 3.
Legal Topics
Validity of Codicils, Witnessing Requirements for Wills and Codicils, Grant and Setting Aside of Probate, Leave to Compromise Under Court Rule, Enforcement of Minutes of Settlement
Source Language
english
Wills and Estates Probate Civil Procedure Settlement Enforcement Validity of Codicils Witnessing Requirements for Wills and Codicils Grant and Setting Aside of Probate Leave to Compromise Under Court Rule +1 more

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Parties

Eric James Imlach

Plaintiff

Isabel Warner

Plaintiff

Mary Worth

Defendant / Named Executrix

John McFarlane

Defendant

Hazel Carmichael McDonald

Defendant / Executrix

Evelyn Gillespie

Defendant

Robert McFarlane

Defendant

Ellie Rubel

Defendant

Joy Burns Ann Grandall

Defendant

Esther Coghill Steven (deceased)

Testator

Procedural Posture

Estate/probate / Application to Confirm Probate, Set Aside Codicils and for Leave to Compromise (rule 62(13))

Legal Issues

  1. 1 Whether three documents were valid codicils given improper witnessing
  2. 2 Whether probate of the testator's will should be confirmed
  3. 3 Whether the court should grant leave to compromise this probate action under Rule 62(13)

Ratio Decidendi

The court confirmed probate of the November 5, 1996 will and set aside the three purported codicils as invalid because they were not properly witnessed; the court granted leave to compromise the probate action under Rule 62(13) but expressly declined to endorse that the compromise must mirror the February 5, 2004 Minutes of Settlement, leaving enforceability of that settlement to a separate action (S5256).

Court Disposition

Probate of the will confirmed; probate of three codicils set aside as invalid; leave to compromise granted (not necessarily on terms of the Minutes of Settlement); plaintiffs awarded costs on Scale 3.

Orders

  • Probate of the testator's last will dated November 5, 1996 is confirmed.
  • The admission to probate of the three documents dated November 17, 1996, April 20, 1997 and April 27, 1997 is set aside as the documents are invalid as codicils to the will.