Christian C. Provenzano

The applicants brought an application to set aside a 2011 will made by their brother/uncle, who suffers from Alzheimer's disease.

The application was converted into an action, and the issue on this motion was who should be appointed as the incapable person's litigation guardian.

The applicant nephew sought to be appointed, offering to abandon his claim in the action.

The respondent opposed the appointment, arguing the nephew had a conflict of interest because his father stood to benefit if the will was set aside.

The court agreed, finding that the nephew could instruct counsel in a way that unfairly prejudiced the respondent, and dismissed the request to appoint the nephew as litigation guardian.

The applicant corporation sought the return of funds seized from its bank account by a secured creditor, arguing that the seizure was invalid under a General Security Agreement and the Personal Property Security Act.

The applicant alleged that the wrong security agreement had initially been served, that the GSA was ambiguous and unenforceable, that it was not in default, that notice requirements under the PPSA were breached, and that the warrant authorized seizure of the account rather than the funds.

The court rejected each argument, holding that the GSA was valid and enforceable, the applicant was in default through its guarantee of the borrower’s indebtedness, and the secured creditor’s enforcement complied with the PPSA.

The court also held that funds in the account constituted proceeds that could be directly seized under the statute.

The application for return of the seized monies was dismissed.