Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court found that there was no res judicata or issue estoppel  present.

A father had sued a daughter and her spouse for the alleged removal of chattels from his farm. The daughter and her spouse counter claimed for unpaid wages.

After the  father died, the daughter brought an action against  her father’s estate and its sole beneficiary for relief for father’s failure to made adequate provision for daughter in will. The estate and beneficiary brought an application for  an order dismissing action based on the signed release of  the prior action, but the application for dismissal was dismissed and the Wills Variation claim was allowed to proceed.

The Court reason that the potential claim under the wills variation claim could not have arisen against estate until father died leaving a will, so release was not bar to a claim under section 60 of WESA.

For the same reason, the doctrines of issue estoppel and cause of action estoppel did not bar claim under S. 60 WESA, nor could the  consent dismissal order for the prior action  bar the subsequent  action.

The signed Release of Claims  was a contract that was  not ambiguous.

That first action was resolved by a Release of Claims that stated in part:

KNOW ALL MEN BY THESE PRESENTS that in consideration of the total payment by or on behalf of BERNARD KAPALKA and BERNIES LTD. (collectively the “Releasees”), of the sum of $125,344.89 plus 50% of accrued interest plus the sum of $25,000.00 as a contribution to costs and disbursements and the interest of Bernard Kapalka in 2950 Sallenback Road and other good and valuable consideration, the receipt of which is hereby acknowledged, BERNADINE BYKERK and WILLIAM BYKERK (the “Releasors”), DOE_ [sic] HEREBY REMISE, RELEASE AND FOREVER DISCHARGE the Releasees, their heirs, executors, administrators, successors and assigns of and from any and all manner of actions, causes of action, suits, debts, contracts, claims, demands and damages of any nature or kind whatsoever, which as against the Releasees, their heirs, executors, administrators, successors and assigns the Releasors and their heirs, executors, administrators and assigns now have or at any time hereafter can, shall or may have for or by reason of or arising out of or relating to the issues which are the subject of an action brought by the Releasees in the Supreme Court, Vernon Registry, Action No. 43038 (the “Action”) and a Counterclaim by the Releasors in the same action.

 

 

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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