The family home is often the most valuable asset a family owns. When you also consider the emotional ties to a family home, it’s easy to understand why it is sometimes at the heart of estate disputes when there is no clear direction about how the home should be treated in the event of the owner’s death. In a recent decision from the Ontario Superior Court of Justice, the court dealt with a family who could not agree on what should happen to their family home.

A will and a number of codicils

The motion was originally brought by the granddaughter of the deceased, who was survived by her two adult children “Hindy” and “Sandy.” Between her two children, the deceased had five grandchildren. The trustee is the daughter of Hindy. She has a brother named Justin. Sandy has three children, Remy, Amanda, and Maya.

The deceased was married, but her husband predeceased her. When he died in 2017, his will left everything to the deceased, who passed away in April 2019.

The deceased’s will left everything to her husband. However, it stated that if he were to die before he, her estate was to be divided into five parts. Four of the parts were to be equally divided amongst her grandchildren (Justin, Madison, Remy, and Amanda). The fifth piece was to be divided equally between her children, Hindy, and Sandy.

Maya was born after the will was signed, and as a result, the deceased made a codicil, specifying that Maya would be included in the part of the estate that went to the grandchildren, splitting it five ways instead of four.

A second codicil was signed in April 2019, which changed the trustees from Sandy and Hindy to Sandy and his daughter Remy. It also stated that one of the family properties, referred to as Brockington, was not to form part of her estate and that it would be transferred to Sandy upon her death. At the same time, the deceased transferred ownership of Brockington to herself and Sandy as joint tenants. Brockington is the main asset of the estate and was valued at $2 million at the time of the trial.

Son moves in to care for mother

After the deceased’s husband passed away, Sandy moved into the home, saying he did so to care for his mother. He said his sister and her children ignored his mother during this period. However, Madison and Hindy argued that Sandy moved in with the deceased in order to coerce her into signing the second codicil and transfer the property into his name.

Sandy said this simply wasn’t true, and that if it wasn’t for him, his sister would have moved their mother into a care home and sold Brockington.

Court orders are allegedly ignored

A number of court orders were issued before the trial, including orders for Sandy to return $135,000 to a line of credit attached to the home. Sandy was permitted to keep living at Brockington as long as the line of credit was paid, and he paid for the costs associated with the home.

The applicant told the court that these orders were not followed and was seeking an order for the home to be sold while further litigation was pending.

The court agreed, stating that there is money owed by the estate, and the money can only come from the sale of the home. The court said he had been given months to comply with the court orders, but chose not to do so. While the court was sympathetic that the son had to sell the home he was living in, it said ordering him to do so was the only way to move through the issues that had to be resolved.

At Derfel Estate Law our Toronto estates lawyers work tirelessly to achieve the best possible resolution to your will, estate, or trust matter. Call us at 416-847-3580 or contact us online to schedule a consultation.