“No take-backs” is something you might expect to hear on a playground full of children. But the regret of giving something to somebody can also occur amongst adults. In a recent decision from the Ontario Superior Court of Justice, the plaintiff told the court she didn’t intend to give her house to her daughter but later sought to reclaim title to the home.
Mother gives home to daughter
The mother appointed her daughter as her Attorney for Property and Personal Care on October 28, 2011. During that same year she also executed a will (but told she could she did not remember doing so).
The will stated that her home was to be transferred to the daughter upon her death. Her husband’s will also provided that the home go to their daughter in the event that the mother did not survive him. When the father died on March 5, 2011, the home transferred to the mother.
By late 2011 the mother decided to transfer the home to the daughter. The daughter drove the mother to a lawyer’s office to execute the transfer. The mother received a letter confirming the transfer in June 2012.
Relationship between mother and daughter sours
By 2017 the mother and the daughter’s relationship had soured. The mother removed the daughter from her will and it was alleged that she told the daughter she had “changed her mind about transferring the home.”
Ultimately this led to litigation. The mother sought summary judgment against the daughter seeking to recover legal ownership of the land. The mother said that she did not appreciate the legal effect of the documents she signed, stating that the lawyer who prepared the documents was the daughter’s longtime lawyer. She said she received no independent legal advice, and that at the time the daughter had complete control over the mother’s affairs. The mother also said that at the time of the transfer she was depressed and mourning the loss of her husband. She said the pain medication she was taking for a knee replacement surgery also impacted her. Finally, the mother stated that there was no payment or consideration at all in the exchange of the transfer and that she didn’t intend to transfer it in her lifetime.
The daughter says there was consideration for the transfer of the house
The daughter told the court that there was indeed consideration for the transfer, namely that she promised to help pay for the expenses related to carrying the homie. While her mother may have changed her mind some years later, the daughter said that things were final and regardless of whether it was a gift or otherwise, it was done properly and cannot be undone simply because the mother changed her mind.
The court was critical of the mother’s credibility, particularly her statement that she never intended to transfer the property to her daughter. The court noted that she signed the documents herself, and received a letter confirming the transfer. The mother suffered no illness that impacted her judgment and was not particularly vulnerable at the time. While the promise to pay property taxes would never amount to anything close to the value of the home, the court found that it was the mother’s intention to make the deal.
At Derfel Estate Law, our Toronto estate lawyers can help you protect the financial, health, and personal interests of your loved ones. We provide strategic and compassionate advice and will take the time to thoroughly understand your specific concerns and desired outcome, and will act accordingly while making sure all relevant parties are protected throughout the process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.