Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2)

The matter of Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw (No. 2) involved a dispute over the probate of a will. The plaintiff, Dybac, proposed the 2005 will and a 2009 codicil, while the defendant, Czerwaniw, advocated for a testamentary instrument executed in January 2020. The court was tasked with determining the validity of the January 2020 testamentary instrument, particularly regarding the testator's capacity and knowledge at the time of execution.

The primary legal issues centred on whether the testator had the requisite capacity to execute the January 2020 testamentary instrument, and if the defendant had adequate knowledge and approval of that instrument. The court also needed to assess whether the outcome of the proceedings was sufficiently favourable to the defendant under the offer of compromise made by the plaintiff. The plaintiff had offered to compromise the proceedings on 31 March 2021, proposing that the 2005 will and the 2009 codicil be granted in solemn form. The defendant, however, did not accept this offer and proceeded with their cross-claim for the probate of the January 2020 testamentary instrument.

In delivering the judgment, the court found that the 2005 will and the 2009 codicil were valid and should be granted in solemn form to the plaintiff. The court concluded that the defendant's testamentary instrument from January 2020 was not valid due to issues concerning the testator's capacity and the defendant's lack of knowledge and approval. The court also ruled that the outcome of the proceedings was no less favourable to the defendant than the offer of compromise. Therefore, it was not reasonable for the defendant not to accept the plaintiff's offer.

The final orders of the court were that the 2005 will and the 2009 codicil be granted in solemn form to the plaintiff. The costs of the proceedings were to be assessed in a manner that reflected the outcome being no less favourable to the defendant than the offer of compromise. The court's decision provided clarity on the validity of the respective testamentary instruments and the appropriate allocation of costs in probate proceedings.