P. J. Cavanagh J.

The applicant sought to have a holographic will, allegedly made by his deceased brother, accepted as the last will and testament over a previously probated 1995 will.

The applicant had previously attempted to amend a statement of claim in a related action to plead this new cause of action, but that motion was dismissed by Lederman J. on the basis that the claim was statute-barred and the applicant failed to demonstrate due diligence in discovering the will.

The court held that the current application raised the exact same question decided by Lederman J. Applying the doctrine of issue estoppel, the court found the applicant was precluded from relitigating whether his claims were statute-barred.

The application was dismissed.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiffs' action for damages arising from a motor vehicle accident.

The plaintiff driver claimed he was cut off by an unidentified vehicle, causing him to lose control and crash into a ditch.

The insurer argued the accident was solely the plaintiff's fault and that there was no corroborating evidence of an unidentified driver as required by the OPCF-44 Family Protection Endorsement.

The court heard viva voce evidence, including from a newly discovered independent eyewitness who had called 911.

The court found the eyewitness's testimony credible and reliable, corroborating the plaintiff's account.

The insurer's motion was dismissed, and partial summary judgment was granted to the plaintiffs, declaring the accident was caused by an unidentified driver and the evidentiary requirements of the OPCF-44 endorsement were met.