In the fall of 2024, Justice Anette Casullo rendered an interesting decision on a complex real estate/estate question. Will and Estate Lawyers pay attention. In the case of Clements v. Emerson 2024 ONSC 4885, she dealt with a 24-year family saga about a parcel of land, which contained two buildings in Thorah, Ontario. During these 24 years, we had family estrangement, deaths, bankruptcies, emergence from bankruptcy and family drama. The case once again is evidence of estate litigation being a stew of different areas of law, but the moral of the story for the average reader is that careful drafting is required not only of Wills, but Trust Agreements that at times accompany those Wills. I recommend our devoted readers to take a look at the other blogs that we have posted on the issue of the “Full Monty”, which takes advantage of Trust Agreements to avoid probate. The law of real estate was involved, including the examination of the Conveyancing and Law of Property Act, along with bankruptcy law and will interpretation. Will Lawyers in Brampton often steer away from Real Estate Law but as we say, Estate Litigation Lawyers realize it is a stew. A grocery store of different areas of law.
In the absence of careful drafting, lawyers became involved, affidavits (written sworn statements) which triggered cross examinations, Factums, (which are detailed legal arguments), and tens of thousands of dollars in legal fees were all needed, which could have been avoided if the Will and the Trust Agreement had been more carefully drafted. The matter in the end all turned upon whether or not a provision in the Will described how ownership of a property was given to two sisters. Did they own it as tenants in common or as joint tenants. Our readers can examine our other blog articles on the difference between these two forms of ownership. However, for the sake of simplicity, joint tenancy means a right of survivorship. The last person standing ends up owning the entire property. Tenants in common means upon the death of a registered partial owner of a property, ownership of that share then flows to where that deceased individual’s Will says it goes. Justice Casullo reminded everyone that the default is that when a Will does not make clear how that ownership is to be shared between two or more parties, the default is tenants in common, not joint tenancy. The default of course can be set aside if there is sufficient evidence on the face of the Will that the intention was indeed that the parties were to receive it as joint tenants. Much time, money and emotional effort was expended on answering this question.
What is particularly interesting to this author, is in the thousand wills I have read over my career, drafted by a hundred different lawyers in Brampton for wills, I have never seen this issue addressed in a will. Needless to say, our precedent is being updated. It always is. Wills and Estates Lawyer we are, and it means we never are content and always trying to improve our output.
A thought-provoking aspect of this case is the Judge using common sense. It is not that Judge’s generally lack that ability, it is that often they feel their hands are tied by the legal requirements of the case before them.
Another area of law this case triggered was unjust enrichment. This is a fairness rule, which the courts are able to enforce. One of the two sisters had paid many of the expenses for the entire property and felt that they should be reimbursed now that the judge held that ownership actually were held by the sisters as tenants in common. The Judge did not want to have the parties return to court. To quote the Judge “This matter has already consumed more than its fair share of legal fees and judicial resources not to mention the emotional toll to the parties, a reference (a type of mini trial) is not necessary as the movement forward to the finish line is a simple mathematical exercise. Each of the parties can provide a spreadsheet setting out the expenses”.
