Kellogg v. Rouches, 2013 BCSC 1014

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kellogg v. Rouches, 2013 BCSC 1014 Date: 20130607 Docket: 13 0927 Registry: Victoria Between: Vivian P. Kellogg Plaintiff And Inga Kellogg Rouches, Executrix of the Will of Robert P. Kellogg, Inga Kellogg Rouches, Executrix of the Will of Lisa E. Kellogg, Inga Kellogg Rouches, Successor trustee of the Kellogg Family trust, and Susanna M. Kellogg Defendants Before: The Honourable Mr.

Justice Abrioux Supplementary Reasons for Judgment The Plaintiff, Vivian Kellogg: appearing in person Counsel for Defendant, Inga Rouches: Heather Fisher Place and Date of Hearing: Victoria, B.C. April 23, 2013 Supplementary Submissions: May 3 & 8, 2013 Place and Date of Judgment: Victoria, B.C. May 30, 2013 Place and Date of Supplementary Reasons for Judgment: Victoria, B.C. June 7, 2013 [ 1 ] On May 30, 2013, I issued reasons for judgment in this action which are indexed at 2013 BCSC 946 . [ 2 ] I concluded the notice of civil claim should be struck and the action dismissed.

I did so on the basis the notice of civil claim did not disclose a reasonable claim. In the alternative it was frivolous and constituted an abuse of process. [ 3 ] It has been brought to my attention that my reasons for judgment contained an error. Specifically, paragraphs 18, 20 (

b) and 20 (

e) refer to the plaintiff having filed a petition on April 23, 2013 in which she sought the proper construction of the will, directions as to whether the gift to the trust could occur and whether the trust may be incorporated by reference into the will. [ 4 ] It was, in fact, the defendant who filed the petition in question, not the plaintiff. [ 5 ] The principal basis for my concluding the defendant’s application should be allowed was that the notice of civil claim did not disclose a reasonable claim.

The error related only to an additional factor in my concluding the application should also be granted on the alternative grounds advanced by the defendant being that the action was frivolous and also constituted an abuse of process.

Accordingly the fact the petition was filed by the defendant as opposed to the plaintiff does not cause me to reach a different conclusion as to the outcome of the defendant’s application. [ 6 ] I direct that the Registrar release the Grant of Probate which has been lodged with the Probate Registrar pending the outcome of this action to revoke the Grant of Probate. [ 7 ] I also order that the approval by the plaintiff as to the form of order arising from these reasons for judgment is dispensed with.

“Abrioux J.”