Court found that the delay did not prejudice the defendant
The BC Supreme Court has refused to dismiss a case challenging the deceased’s will for want of prosecution despite the delay caused by the COVID-19 pandemic.
In Fitzpatrick v. Dobos, 2023 BCSC 182, Karoly Charles Dobos executed a will in 2014, naming his common-law partner Eva Magyar as executor of his estate. The will also provides that 50 percent of the estate residue will go to Magyar and 50 percent to Dobos’ nephews in Hungary. Dobos died in 2019.
Magyar obtained probate of Dobos’ estate. Carol Fitzpatrick, claiming to be the deceased’s daughter, sought to set aside probate. She challenged the will’s validity and alleged wrongful dissipation of the deceased’s assets. In September 2019, Fitzpatrick’s counsel gave notice of his client’s intention to apply to set aside the grant of probate.
Magyar alleged that Fitzpatrick was not Dobos’ natural daughter and demanded that she undergo DNA testing. She also suggested that the deceased’s two nephews in Hungary could provide DNA samples. The COVID-19 pandemic in 2020 disrupted court operations for several months.
In 2021, Fitzpatrick commenced service of the civil claim notice to the two nephews in Hungary through the Hague Convention. Eva Magyar died in 2022, and her daughter Melinda Berenyi was appointed administrator of Magyar and Dobos’ estates. Berenyi filed an application for a court order dismissing the action for want of prosecution.
‘Want of prosecution’ principles
The BC Supreme Court explained the principles to be considered on an application for dismissal for want of prosecution. The court said, “it must be shown that there has been an inordinate delay, that the delay is inexcusable, and that the delay has caused, or is likely to cause, serious prejudice to the defendant.”
The court further said that inordinate delay means “immoderate, uncontrolled, excessive, and out of proportion to the matters in question.” The plaintiff’s diligence and dispatch in advancing the action are also relevant in analyzing whether a delay is inordinate.
The court noted that the applicant bears the burden of establishing that there has been an inordinate and inexcusable delay. Once the applicant has established an inordinate and inexcusable delay, a rebuttable presumption of prejudice arises. The final and overriding question is “whether the interests of justice require dismissal of the action.”
Berenyi argued that there had been an inordinate and inexcusable delay. She urged the court to consider that the proceedings commenced in November 2019 when the probate application was filed. Berenyi pointed out that Fitzpatrick’s action had not advanced beyond the filing of pleadings and service of the parties.
Berenyi further asserted that the defendants had repeatedly indicated that they wished to pursue the issue of whether Fitzpatrick was the natural or adopted daughter of the testator. Still, Fitzpatrick had failed to take any steps to provide evidence to establish her right to make a claim under the will.
On the other hand, Fitzpatrick argued that the delay had not been inordinate because of various circumstances beyond her control, including the COVID-19 pandemic and the Hague Convention requiring personal service of the defendants in Hungary at the height of a disease outbreak.
No inordinate delay
The BC Supreme Court ruled that there had been a delay in the prosecution of the action, but the court found that the delay was not inordinate and inexcusable. Berenyi argued that Magyar’s death had caused severe prejudice because she witnessed many of the events concerning the claims against the will’s validity.
The court noted that service of the parties in Hungary and return of affidavits of service through the Hague Convention had taken eleven months from when the counsel advised Fitzpatrick of their addresses. The court pointed out that if the plaintiff had sought the addresses immediately, the likely time for the return of affidavits of service would be approximately December 2020. Eva Magyar died in February 2022. The court was not persuaded that if the prosecution had proceeded in the normal course, the trial of the action would have been completed before her passing.
The court concluded that there had been prejudice to the defence of the action due to Magyar’s death. However, the court was not satisfied that the delay had caused this prejudice because it was likely that the matter would not have been concluded before Magyar’s death. The court ultimately refused to dismiss the action for want of prosecution.
