In Addante v. Ruscica, 2022 ONSC 2148, an application for partition and sale of a property under the Partition Act, R.S.O. 1990, c. P.4, was brought by a residuary beneficiary of an estate. 

The property at issue was the home of the Addante’s late mother, Rosa, who died in 2014.  Rosa’s Will named the Addante’s sister, Ruscica, as the Estate Trustee, and the residue of the Estate was divided equally amongst Rosa’s five children, which meant that the applicant had a twenty percent interest in the residue of the Estate.  Prior to Rosa’s death, Rosa transferred her home to Addante and Ruscica as joint trustees and she retained a life interest in the property for herself.  Addante and Ruscica were the registered owners of the property as tenants in common but they agreed they were holding the property in trust for Rosa’s Estate, to be divided in accordance with Rosa’s Will, since Rosa’s life interest has come to an end.   

By the time of the application hearing in 2021, the property has not been sold and Ruscica has continued to live in the property rent-free.  It is Addante’s position that the property ought to have been sold two years after Rosa’s death, at the latest, because that was the maximum amount of time that Ruscica was permitted to remain in Rosa’s home based on Rosa’s Will. 

The applications judge in this case considered the Court of Appeal’s decision in Di Michele v. Di Michele, 2014 ONCA 262.  Di Michele was clear that an application for partition and sale of a property under the Partition Act can only be brought by those who are entitled to immediate possession of the property.  Unlike a beneficiary who was given a specific bequest of the property at issue, a residuary beneficiary is not entitled to any particular asset of the Estate.  Therefore, a residuary beneficiary has no entitlement to immediate possession and no standing to seek an order for partition and sale. 

In this case, Addante was also unable to rely on section 9 of the Estates Administration Act which automatically vests unsold property of an estate in the estate’s beneficiaries, subject to section 10 of the Act, because of the power to sell under Rosa’s Will. 

While Addante was completely unsuccessful in her application, the applications judge was moved by the circumstances.  The applications judge offered comments on how there may be grounds to remove Ruscica as the Estate Trustee under section 37 of the Trustee Act because of the way in which Ruscica has made the property available for her own rent-free enjoyment for years. 

The application was dismissed on a without prejudice basis to Addante, or to any of the other beneficiaries, to bring a removal application.  The applications judge was also inclined to order costs from the Estate in this case.

Thanks for reading!

Doreen So