Bank of Nova Scotia Trust Co. v. Powlik

Bank of Nova Scotia Trust Co. v. Powlik

The application for pre-trial indemnity is dismissed because the remedy is extraordinary and inappropriate on the facts: the bank has not shown a sufficiently strong prima facie case or that costs out of the estate would be the only proper order after trial, the bank is solvent and not impecunious, and granting...

Source-derived case information.

Citation
2003 BCSC 1382
Parties
Plaintiff/executor: The Bank of Nova Scotia Trust Company, Executor of the Estate of Harry Mudry, Deceased; Defendant: Gerald Dan Powlik; Defendant: Lynne Marie Powlik, also known as Lynne Marie Jeanette Powlik; Defendant: Jenny Dolores Mudry; Defendant: Gary Patrick Mudry; Defendant: Annette Ewaschuk; Defendant: James Mudry; Defendant: George Mudry; Defendant: Ted Mudry; Defendant: Harvey Mudry; Defendant: Elsie Wikenberg, also known as Elsie Wickenberg; Defendant: Florence Konduc; Defendant: Loretta Kobeluck; Defendant: Jane Kobeluck; Defendant: Kim Duggan; Defendant: Christopher Duggan; Defendant: Kelly Duggan; Defendant: Gene Maurice Mudry; Defendant: Joan Hannah; Defendant: Brian Harold Simpson; Defendant: Constance Diana Simpson
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
9 September 2003
Procedural Posture
Will Contest / Estate Litigation / Interlocutory Application for Indemnity (pre Trial)
Outcome
Application dismissed with costs in the cause
Legal Topics
Executor Indemnity, Prospective Costs, Testamentary Capacity, Will Revocation, Undue Influence, Solicitor's Fees
Source Language
english
Wills and Estates Trusts and Trustees Civil Procedure Costs Executor Indemnity Prospective Costs Testamentary Capacity Will Revocation +2 more

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Parties

The Bank of Nova Scotia Trust Company, Executor of the Estate of Harry Mudry, Deceased

Plaintiff/executor

Gerald Dan Powlik

Defendant

Lynne Marie Powlik, also known as Lynne Marie Jeanette Powlik

Defendant

Jenny Dolores Mudry

Defendant

Gary Patrick Mudry

Defendant

Annette Ewaschuk

Defendant

James Mudry

Defendant

George Mudry

Defendant

Ted Mudry

Defendant

Harvey Mudry

Defendant

Elsie Wikenberg, also known as Elsie Wickenberg

Defendant

Florence Konduc

Defendant

Loretta Kobeluck

Defendant

Jane Kobeluck

Defendant

Kim Duggan

Defendant

Christopher Duggan

Defendant

Kelly Duggan

Defendant

Gene Maurice Mudry

Defendant

Joan Hannah

Defendant

Brian Harold Simpson

Defendant

Constance Diana Simpson

Defendant

Procedural Posture

Will Contest / Estate Litigation / Interlocutory Application for Indemnity (pre Trial)

Legal Issues

  1. 1 Whether an executor is entitled to indemnity from the estate for past and future legal costs before trial
  2. 2 Whether pre-trial orders for prospective costs out of an estate are appropriate in friendly estate litigation
  3. 3 Whether the bank acted bona fide and reasonably in bringing the litigation

Ratio Decidendi

The application for pre-trial indemnity is dismissed because the remedy is extraordinary and inappropriate on the facts: the bank has not shown a sufficiently strong prima facie case or that costs out of the estate would be the only proper order after trial, the bank is solvent and not impecunious, and granting indemnity now would risk fettering the trial judge's discretion and potentially unjustly depleting the estate.

Court Disposition

Application dismissed with costs in the cause

Orders

  • Application dismissed with costs in the cause.