Occupation rent is the legal term given to the compensation that is owed by someone who lives in a property without authority. This was canvassed by Justice Karakatsanis in the 2004 decision of Dagarsho  Holdings Limited v. Bluestone. The judge held that occupation rent is an equitable remedy, in other words, it is a fairness rule that the courts have at their at their disposal. If someone lives in a property without a lease, and even though there is no landlord and tenant relationship, the courts will imply a contract for rent to the landlord at a reasonable amount for the use and occupation of the landlord’s property. This principle is based upon the presumption that the parties have agreed to reasonable compensation. One can cancel that presumption if evidence exists. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment. 

This is an equitable remedy that the courts can apply.  It is a claim an executor can make when dealing with the problem adult child continuing to live in the family home. 

 So a common scenario for Will and Estate Lawyers, is an adult child, often a little excentric or dysfunctional who has lived with a parent for many years in the family home rent free.  The parent dies and the problem child continues to occupy the home with no legal right to do so.  There is no lease .  What can the executor or estate trustee do?  Well they come to us as Estate Litigation Lawyers.  The executor realizes it is very difficult to sell a home with someone living in it.  Well the claim, a part of estate litigation, is to ask for a writ of possession and additionally to ask that the problem child pay the estate occupation rent for the time they lived in the home. 

The Court has Options Short of Removal

In the September 2024 decision in Deziel v. Deziel, the freshly appointed Justice Barbara McFarlane touched upon a number of interesting points that apply to estate litigation and the administration of an estate. Estate Litigation Lawyers and simply Estate Lawyers need to keep these concepts in mind.

We begin with Justice Barbara McFarlane’s own interesting background. She had been a Judge for only a few months when she rendered this decision. Justice McFarlane began her legal career as a law clerk, worked her way up to becoming a lawyer, then partner, eventually founding her own law firm and has now reached the heights of becoming a Superior Court Judge. Obviously, a woman of substantial intellect and self motivation.

In the case at hand, the facts are interesting. We have a relatively small estate composed of a bank account and a modest home.

The mother left a will, and two of the four children of the deceased were named as executors. The Will gave the specific authority to any one of the beneficiaries having the right to purchase the home from the estate. In the absence of that provision, only a court or the unanimous consent of all the beneficiaries can permit such self dealing.

One of the beneficiaries/executors purchased the home. In the end, the other beneficiaries were able to convince the court that the home was purchased for some $30,000 below market value, and that it was inappropriate for the purchaser to have deducted their estimate of the real estate commission that would have been paid had the property been sold on the open market.

Also, the deceased mother had written out a cheque to one of the beneficiaries for $40,000. It was supposedly a gift in recognition of that beneficiary’s care of the ailing mother in the last few years of her life. Unfortunately, the beneficiary did not cash the cheque until after the mother had passed away.

I direct our readers to another blog titled Gift Gone Wrong in which the various components of a valid gift are set out. In this case, the failure to cash that cheque prior to death, cut out one of the prime components of a valid gift, namely delivery. The gift was not delivered and as such the gift failed and the $40,000 had to be returned. Justice McFarlane pointed out that upon their customer’s death, the donor’s bank ( person who wrote the cheque ) can no longer negotiate a cheque. Section 167 of the Bills of Exchange Act states that the duty and authority of a bank to pay a cheque is determined by countermand or notice of the customer’s death. As such, if there is a revocation stop payment of the cheque or notice of the death of the customer, the bank can no longer cash the cheque. We discussed this in our prior blog article on the Teixera v. Markgraf estate.

Justice McFarlane also pointed out, and as we have expressed repeatedly in these blogs, the role of being an estate executor imposes upon one a fiduciary duty. A fiduciary duty is one at the highest level of responsibility. Quoting the 1992 Supreme Court of Canada in Norberg v. Wynriv the executor of an estate takes the financial power that would normally reside with the beneficiaries and the executor must exercise those powers in their stead and for their exclusive benefit.

The remaining beneficiaries who felt that they had been financially injured as a result of the errors made by the executors, brought an application to the court. They asked for various relief, including reversing the sale of the house and forcing the home to be placed on the open market and returning the $40,000 gift. One must consider that none of this makes any financial sense. The court application had to have been extremely expensive, with costs amounting to many tens of thousands of dollars. Any benefit that the aggrieved beneficiaries would have obtained would only result in a 25% increase in their share of the estate. On top of that, we have the familial devastation that would have echoed amongst the four surviving siblings.

Nonetheless, such is estate litigation, and this is what estate litigation lawyers deal with all the time. For this to have made any financial sense, at least one or two additional zeros needed to have been added to the amount in dispute.

While the judge found that the executors had breached their fiduciary duty, she exercised her discretion which is extremely wide. The judge penalized the executor who purchased the home, made him pay the estate the $30,000 shortfall and as well made the beneficiary who received the incomplete gift of $40,000 return it to the estate. This $70,000 was then split 4 ways. In other words, for all of the effort, each complaining beneficiary gained $17,500.

Justice McFarlane felt that she had a wide discretion on what tools to use to fix the situation. The judge held damages must be a flexible remedy of equity, including equitable compensation effecting fairness and justice in the specific situation. There are times when traditional remedies may not be available or appropriate.

The Judge showed ingenuity and flexibility in not removing the executors feeling that there was no malicious intent, but rather the actions of inexperienced parties dealing with a modest estate.

Once again, we point out that estate litigation calls upon numerous areas of the law and is a stew of competing legal interests. None of these are cheap to explore or put forward, and again from the sidelines one can only shake one’s head at the issues between these four siblings that lead as far as a court case. A sprinkling of a common sense and goodwill could have saved all concerned easily a combined $100,000 in legal fees.

When more than one person is a named owner of an asset, arguments can arise, both before and after death as to who is the real owner. Such is the occupation of Will and Estate Lawyers, aka Estate Litigation Lawyers.

In the area of Wills, Estates and Trusts not to mention Estate litigation, there is an extremely important doctrine of law called the presumption of resulting trust. We have commented upon that in a number of other blogs. Just use the search function on our Web Site and enter presumption of resulting trust. While the legal concept appears to be complicated, it is relatively simple and can be distilled down to two common sentiments. “Follow the money” and “what were the parties’ intentions”. Otherwise described as , who paid for the asset and why is the asset owned on paper this way?

The presumption of resulting trust may apply when a person is added either with a right of survivorship or simply as a joint owner to an asset. A common example would be when an elderly parent adds an adult child as a joint owner to their bank account. Did the parent intend upon their death that the adult child receive all of the money in the account or was the adult child simply added as a convenience and the beneficial owner remained even after death the parent, and therefore the disposition of that asset would be governed by the parent’s Will.

The 2024 decision of the Ontario Court of Appeal in Falsetto v. Falsetto is an interesting exploration of this area.

It involves the Planning Act, the doctrine of merger not being two faced, a divorce and a number of other areas of law falling one on top of the other. It is a common aspect of estate litigation, or the work of a Wills and Estates Lawyer that it is a melting pot of many areas of law, one being added on top of the other and requires an open mind on the part of the estate litigation attorney to keep in mind.

Our own Justin Bieber has a hit single called “Intentions”, linked here I am looking for the link to that video that I found on line, either Viveo or YouTube. Part of the lyrics of the song are “heartful of equity or an asset, make sure that you don’t need no mentions, yeah these are my only intentions”. I doubt Justin Bieber was commenting on the doctrine of presumption of resulting trust, but it is a curious coincidence that it highlights what two of a three judge panel of the Ontario Court of Appeals held. Namely that the overarching factor in deciding whether or not the presumption holds, is what was the intention when the trust was created. In the example set out above, what did the parent intend when they added the adult child to their account. When such a factual presumption arises, the onus is on the other, and in this example the adult child, to disprove the presumption. In other words to prove the intention of making a gift. “Heartful of equity or an asset”, the presumption of resulting trust is a doctrine of equity, in other words the fairness rules that the court applies. Did Bieber go to law school?

The Court of Appeal, which here was a panel of three judges was not unanimous although the majority came to the conclusion that intention was overriding all other factors, but Justice MacPherson dissented and found that the application judge was impeccably correct in that the Planning Act factors were enough to fill in the holes in determining intention. Justice MacPherson quoted two decisions Zacker v. Zacker and Styres v. Martin to support the conclusion that a party cannot achieve one result for the purpose of avoiding a legal consequence prescribed by statute – in this case the Planning Act – and achieve an opposite result for other purposes. Remember this dissent. The application judge lost out in the end, but this is an important legal concept to keep tucked away for future use.

In the Ontario Superior Court decision in Drennan, the straight-talking straight-shooting Justice Fred Myers ,who appears repeatedly in these blog articles rightly punished one of the beneficiaries of an estate who had been appointed as its executor. The non-cooperative executor basically did nothing in the administration of the estate and allowed the mortgage on the deceased father’s house to fall into arrears. This cost everyone money and the negligent executor simply closed his ears, mind and eyes to the situation causing significant costs to be incurred by all concerned. One of the other beneficiaries spent over $65,000 repeatedly returning to court to have her executor brother removed. In the end, Justice Myers agreed that numerous chances have been given to the uncooperative brother to behave. Not only were legal costs of $65,000 awarded against the negligent brother, the court also ordered a recovery from his share of the estate for all the costs and expenses that the estate incurred as a result of the slipshod executor. Fair warning to an executor who fails to properly administer an estate and to have further complicated matters by ignoring orders of the court. It also serves as an illustration that one’s inheritance is at risk if you fail to perform your duties as an executor.

In the world of Will and Estate Lawyers or Wills and Estate Lawyers, it is extremely common for our office to encounter clients who feel that the modest fee we wish to charge for preparing wills is excessive and that they could do better by simply preparing their own Will. It is also not uncommon for our clients to use preprinted forms they have either bought at a stationary store or have downloaded from the Internet. From a purely sarcastic point of view, I strongly urge my clients not to use our office, but to simply give it their best shot in writing their own Wills.

The May 2024 decision of Justice Mario Faieta in the Baert Estate is a case in point. Here we had an estate that between the willmaker and his wife was worth approximately $3,000,000. Rather than preparing a Will with the services of a lawyer, the husband used a preprinted template form and wrote out his own Will instructions. There is no need to go into what occurred, but sufficient to say it was a mess and considering what actually transpired, the Will made no sense. The decision of Justice Faieta is an excellent summary of what the Ontario law is on Will interpretation, and I would recommend it as an excellent source of the law on the point. The court is to try and determine by placing themselves in the armchair of the willmaker as to what they actually intended. Decisions from the Ontario Court of Appeal, and even by the legendary late Lord Denning of England were quoted. Despite a failure of all concerned taking any position (and if they had that would have driven up the legal fees significantly), much money was spent on having the court interpret the Will in fixing its numerous inconsistencies. The moral of the story is if you would like to make lawyers in general far richer then the few dollars they will ask for drafting a Will, do us a favour, take a shot, do it yourself and leave it to a different lawyer after you are gone to pick up the pieces and make much more money funding a court application. Of course there is no way of predicting what a court might do in interpreting the Will, but that along with the excessive fees you leave your estate to pay, that is the risk that you take.

Estate Litigation Lawyers fortunately for us, unfortunately for our clients make a living from clients who are advocates of the penny wise pound foolish school of life.

Justice Faieta has almost 10 years of experience of being a judge and worked mostly in the area of Environmental Law before putting on the gown of a superior court judge. A clever mind can learn new tricks and that is standard for the lawyers that become judges.

As Estate Lawyers, aka Estate Litigation Lawyers known in the USA as Estate Litigation Attorneys we cannot help but observe the human condition.  Our hope is one will find helpful information among the many blog articles posted on our website and to hopefully convince potential clients that we have some degree of knowledge about the complicated legal areas of Wills, Estates and Estate Litigation.

An unspoken aspect of these blogs is that in addition to informing our readers is to attract clients to our firm.

However, this is a blog article that is pointedly directed at attempting to dissuade individuals from retaining our firm or any other before one enters the slippery arena of estate litigation. More than once, I have been silently amazed when supposedly loving siblings or other family members come to do legal battle over money rather than the real treasure at hand, namely family relationships. It is as if siblings grow on trees.

This was all recently prompted by a response from a client Ms. Diane A.  She declined pursuing a potential action against her siblings by stating “I don’t want to destroy family relationships over money”.

This caused me to attempt to find other quotes on the subject. There are many, but a few that I felt were worth repeating.

Money is a good servant but a terrible master, especially when it overrules family.

When it’s a matter of money or family, remember, they print money every day.

Fortune without a family to share is a treasure without value.

Poor is the man who chooses gold over family bonds.

In the arithmetic of life, family is an asset that never depreciates.

Sacrificing family for fortune is a trade, poorest among all.

Family is the anchor that holds; money is just the tide that comes and goes.

Exchanging family ties for currency notes is a poor bargain indeed.

Money is a replaceable asset, family isn’t.

And finally, the quotes that in my opinion say it best:

Money can buy many things, but it can’t replace the joy of a family dinner.

Can money buy the laughter that echoes in a family gathering? Never.

Estate litigation lawyers have to keep a close eye on the scales of justice. In essence, the responsibility as to who has to prove what, keeps swinging back and forth throughout a trial.

Perhaps this blog is a little too technical, but I thought it might be helpful for those considering launching a Will challenge to appreciate how complex and sand shifting the responsibilities are.  Using an American term an estate litigation attorney when facing a Will challenge, has to follow a cascade of steps in determining whether or not there is likely going to be a successful result at the end.  The one thing that is certain is that it is extremely expensive, and the results are uncertain. In the spring of 2024, the Ontario Court of Appeal upheld the fall 2022 trial decision of Madam Justice Tamara Sugunasiri.

Interestingly, Justice Sugunasiri had only been a judge for a few months by the time this interesting and hard-fought matter came before her. It required a three week trial and apparently no stone was left unturned. An appeal was launched and failed.

As Justice Sungunasiri observed, this was a family given to hyperbole and at times pigheadedness.

The steps set out in Roe v. Roe are as follows:

a. Did the willmaker aka the testator have testamentary capacity. This test goes all the way back to the 1870 English Queens Bench case in Banks v. Goodfellow. For a further summary of what is testamentary capacity, take a look at our blog titled:

Exotic Attacks on Will Validity – The Usual vs. The Unusual and

Lack of Testamentary Capacity

b. Did the willmaker have testamentary capacity at the time that he or she instructed the lawyer to prepare the Will, and when the Will was signed.

c. As set out in the 1995 Supreme Court of Canada decision in Vout v. Hay, the legal burden first rests on the propounder, i.e. the person saying that the Will is valid, usually the applying executors.

i. If the propounder can prove on the most superficial of levels that the Will is valid, the burden shifts to the attacking party.

ii. But if the attacking party can raise an issue or excite the suspicions of the court, that suspicious circumstances were involved, then the burden shifts to the propounders of the Will. Their burden is on the balance of probability. They must prove that the willmaker had the mental capacity to execute a Will, did not suffer from insane delusions and understood the assets forming her estate. As we explained in our earlier blog also this would include, did the willmaker appreciate who the normal beneficiaries would have been of her estate.

iii. If the propounder meets the burden, then the attacker on a balance of probabilities would then attempt to show that the testator aka the willmaker was unduly influenced, i.e. the willmaker lost their free will.  Someone else had forced the willmaker to do what they did.

Suspicious circumstances are those that:

a. Surround the preparation of the Will.
b. Call into question the capacity of the willmaker.
c. Raises the question was the free will of the testator lost by coercion or fraud.
d. Look at the extent of the physical and mental impairment of the testator at the time.
e. Was this new Will a big change from prior Wills.
f. Does the Will make testamentary sense.

These are examples of how suspicious circumstances can be raised.

So, it is a legal duel.  Good estate litigation lawyers like all good trial lawyers are diligent theatrical impresarios.  It is as if two competing artists take turns painting the same canvass.

Reading the trial judge’s decision, the matter appeared to be a loser from the outset.  However, the appeal raised the failure of the judge to discuss and weigh the many contra indicators of the validity of the Will.  As one can see the Court of Appeal gave that argument little weight and deferred to the trial judge who actually heard the evidence.

“Wills lawyers Brampton some might search for, and hopefully will lead to our virtual door”.