McElligott v McElligott

In the case of McElligott v McElligott, the appellant, a bankrupt, sought to appeal a decision of a trial division judge regarding declarations as to the interests of two of her children under a will and the vesting of her share of the residuary estate in the Official Trustee in Bankruptcy. The Public Trustee served as litigation guardian for the children involved. The appeal was brought despite the appellant not being a party to the proceedings and having no interest arising from the will. The court was required to determine whether the notice of appeal should be struck out as it was improperly instituted.

The court considered the powers of the court to strike out notices of appeal that were improperly instituted. It was noted that the property of a bankrupt, including a chose in action, vests in the Official Trustee, and the appellant was not a party to the proceedings and had no interest arising from the will. The court found that the notice of appeal was improperly instituted, and therefore, it should be struck out.

The court struck out the notice of appeal and ordered that the fourth respondent would have his costs on the indemnity basis, out of the estate of the late Joyce Alice McElligott. Additionally, the applicant and second respondent were to have their costs paid by the first respondent, Lorain McElligott, and Lorain McElligott was to pay the costs of the estate so far as they are incurred in relation to the order regarding the fourth respondent.