The division of family property can be a contentious issue, especially if one party believes they have not received a fair share of the property or other assets. A recent decision from the Court of Appeal for Ontario provides a good look at what happens when land is distributed following the death of one parent.

The background

The deceased, MLG, had one child, JG. She married RGK and had two children together. MLG bought a property in 1983 and began to live on it. In 1996 she transferred the title of the property to herself and JG as joint tenants (the “1996 transfer”). MLG’s will at that time was signed in 1978 (the “1978 Will”) and named JG as the sole beneficiary. JG’s children were named as beneficiaries if JG was to predecease MLG. If she had no children, her husband, RGK, was the beneficiary.

In 2008 JG and her immediate family moved in with MLG. JG died on July 22, 2014, and RGK continued to reside with MLG on the property.

MLG moved into a long-term care home in July or August 2015. During this time RGK continued to live on the property, though MLG continued to pay all of the costs associated with it.

MLG made a new will (the “2015 Will”). The will named the children of RGK and JG as the executors and trustees of the estate. Part of the will said,

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 (RGK), and my grandchildren, (GWBK)and (ELK).

The dispute

Upon the death of MLG, RGK claimed a two-thirds entitlement to the property. He maintained that when he and JG moved into the property it became their matrimonial home, and it remained so until JG’s death. RGK claimed that the joint tenancy in the property was deemed to have been severed immediately before JG’s death, and that as the beneficiary of her will, he became one-half owner of the property along with MLG.

Meanwhile, RGK’s children contended that each of them and RGK were entitled to a one-third interest in the property. Their position comes from MLG’s transfer of the title to herself and JG as joint tenants in 1996, which raised the presumption of a resulting trust. They stated that their mother did not have a beneficial interest in the property, and that the 2015 Will supported their position.

The court’s analysis

The court agreed with the application judge’s decision that the presumption of the 1996 transfer created a resulting trust rather than a gift. While RGK tried to argue that the 1978 Will rebutted the presumption of resulting trust. However, the court agreed with the application judge’s finding that the 2015 Will shows MLG’s intentions at that time.

In order for the property to be considered a matrimonial home under the Family Law Act, both JG and RGK would have had to have an interest in the property. In this case, JG was on title to the property in the capacity of a trustee, which is not an interest in the property according to the Act.

If you are thinking about challenging the will of a family member or friend, the results-oriented, effective estate lawyer at NULaw in Toronto can help. Contact us online or at 416-481-5604 before you take any action. We will help you navigate your options and formulate a pragmatic game-plan for moving forward.

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