A common way for estate disputes to arise is when one person thinks they didn’t get what they thought they were getting, or perhaps what they feel they should receive, from an estate. Whether its money, property, or something else, there can be a lot of emotions following the death of a loved one and what happens to their estate. A recent decision from Ontario’s Court of Appeal looks at one such instance.

The history of the property

The deceased (“M”) had one child, a daughter (“J”) who married a man (“R”) and had two children together. M brought a property in Fenelon Falls, Ontario in 1983 and began to live there. M was the sole owner of the property until 1996 when she transferred the title of the property to her and J as joint tenants.

At the time of the transfer, M had a will dated July 24, 1978. Under this will, J was the sole beneficiary of the estate. Should J have predeceased M, J’s children alive at the time of M’s death would be the beneficiaries. Should there be no children from their marriage, R would be the sole beneficiary.

There wasn’t much change in the situation until 2008 when J, R, and their two children moved in with M. They continued to all live together until J died in 2014. Pursuant to J’s will, R was the beneficiary of the estate.

M created a new will after J’s death, naming the children of J and R as the executors and trustees of the estate. The will stated,

I GIVE, DEVISE AND BEQUEATH all my property of every nature and kind and wheresoever situate, … to my said Trustee[s] upon the following trusts, namely:

(b) To transfer any home or condominium I may die possessed of to my son-in-law (R), and my grandchildren, (G) and (E) Laurel Kent.

At around the same time, M registered a survivorship application on the title to the property in just her name. They then registered a transfer deed to the property, naming herself, R, and his children as joint tenants.

R and the children continued to live on the property with M after J’s death. R and the children continued to live on the property after M moved into a long-term care home in the summer of 2015. Despite not living at the home, M continued to pay all of the costs and expenses of the property until her death in 2016. This is when questions about the ownership of the property arose.

Who is entitled to the home?

R claimed a two-thirds entitlement to the property, stating that when he and J moved in with M, the property became their matrimonial home. He said this should have severed the joint tenancy in the property that existed prior to their moving in. Furthermore, as the beneficiary under J’s will, he claimed he became a one-half owner of the property with M as tenants-in-common. He then said he was entitled to a one-third share of M’s one-half interest upon her death, therefore entitling him to a total interest of two-thirds.

R’s children content that each of them (including their father) was entitled to a one-third interest in the property and that the 1996 transfer raised the presumption of a resulting trust.

The application judge’s decision and the Court of Appeal

The application judge who first heard the issue determined that the 1996 transfer created a resulting trust (not a gift). R had tried to argue that the 1978 will had rebutted the presumption of a resulting trust, but the Court of Appeal did not agree. Additionally, the home could not be considered a matrimonial home because R did not have any interest in the property (only J did).

At Derfel Estate Law our experienced estate lawyers work tirelessly to achieve the best results for the resolution of your will, estate, power of attorney or trust disputes. Please call us at 416-847-3580 or reach us online to schedule an appointment.