The appellant appealed an order dismissing an estate action for delay under rule 24.01(1)(c) of the Rules of Civil Procedure.
The Court of Appeal accepted that the delay was unreasonable and inexcusable, but held that the respondents failed to establish the third branch of the dismissal-for-delay test: that the delay created a substantial risk that a fair trial would not be possible.
The court found the motion judge's conclusion on actual prejudice unreasonable given the continued availability of at least two physicians and significant documentary evidence bearing on testamentary capacity.
The appeal was allowed, the dismissal order was set aside, and the respondents' motion was dismissed.
