Proprietary Estoppel Revisited: Cowderoy v. Sorkos Estate

September 7, 2012 Hull & Hull LLP Estate & Trust Tags: 0 Comments

The Ontario Superior Court recently considered the application of the principle of proprietary estoppel in an estate dispute in its decision in Cowderoy v. Sorkos Estate 2012 ONSC 1921.

The Court was asked to consider the legal effect of a promise made by the late Kostas (Gus) Sorkos (“Gus”) to his two step-grandsons, Mark Cowderoy (“Mark”) and Paul Cowderoy (“Paul”), with respect to his interest in a farm and two cottage properties, which promise he did not honour in his last Will. 

Gus had no biological children, and had treated Mark and Paul as grandchildren. Mark and Paul claimed that Gus had in 1985, when they were 13 and 17 years old, promised each of them, that in exchange for their ongoing assistance with his properties and completing all tasks he requested of them, he would leave them the properties and money for the maintenance of the properties on his death.  Mark and Paul subsequently assisted Gus, whenever asked and without any remuneration, with maintenance and improvements to the properties over the next 25 years. On many occasions, Mark and Paul claimed that they assisted Gus at the expense of their personal relationships and their own priorities in life.

On his death, Gus left three testamentary documents: a prior Will made in 2001 which left the properties, as well as $500,000 each, to Mark and Paul (consistent with the promise made to them); a last Will made in 2003 which left $50,000 to Paul, $1,000 to Mark, and did not leave the properties to either of them; and a codicil made in 2008 which increased the bequest for Mark to $25,000, but otherwise the 2003 Will remained unchanged.  As the 2003 Will and 2008 codicil failed to honour the promise made to them, Mark and Paul commenced an action against the Estate claiming an interest in the properties on the basis of proprietary estoppel.

In analyzing the issue of proprietary estoppel, Justice Tausendfreund identified the test for proprietary estoppel, as it was set out in the Ontario Court of Appeal’s decision in Schwark Estate v. Cutting 2010 ONCA 61:

The law with respect to proprietary estoppel is well-settled. This court has accepted that Snell’s Equity properly discloses the elements necessary to establish proprietary estoppel as:

1.    encouragement of the plaintiffs by the defendant owner,

2.    detrimental reliance by the plaintiffs to the knowledge of the defendant  owner, and

3.    the defendant owner now seeks to take unconscionable advantage of the plaintiff by reneging on an earlier promise.

In applying the above-noted test to the facts of the case, Justice Tausendfreund found that Gus had made repeated assurances of his promise to Mark and Paul in relatively unambiguous language, and that they had relied on these promises. Justice Tausendfreund further stated:

In my view, when making out his December 17, 2003 Last Will and Testament purporting to leave the farm and cottage properties to his residuary beneficiaries, Gus was no longer legally in a position to do so.  To hold otherwise would be unconscionable to these Plaintiffs who had partially altered their lives for more than 25 years to Gus’ benefit and to their detriment.  The degree to which they had so altered their lives is akin to “putting Humpty Dumpty back together again.” It is impossible.

Relying on the doctrine of proprietary estoppel, Justice Tausendfreund ordered Gus’ Estate to convey the properties to Mark and Paul.

The decision in Cowderoy v. Sorkos Estate is an important reminder for estate and other civil litigators that proprietary estoppel, when used correctly as a claim, is available to give legal effect to promises or expressed intentions by a deceased.

Thanks for reading.  Have a great weekend.

Saman Jaffery

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