The Gentlemen: Enforceability of Pre-death Contracts

The Gentlemen: Enforceability of Pre-death Contracts

I blogged about “The Gentlemen”, the new television show on Netflix, earlier this week.   While the reading of the family patriarch’s will kicks off the drama, it is actually the contractual obligations of the deceased that really gives the show its unique storyline. 

The minute after the family finds out that the youngest son, Eddie, is the heir of the family estate, Eddie also finds out the real truth of what he has inherited.  Sure, the family estate is worth millions and millions of dollars but the family estate turns out to be the home of a criminal cannabis growing operation.  The head of cannabis operation introduces herself and Eddie is informed of his late father’s contract whereby the gang is given clandestine use of a part of the property to grow cannabis in exchange for annual consideration for Eddie’s father.    

Criminal activity aside, “an estate trustee is bound by the same contracts that the deceased was bound by during his/her lifetime.  According to Widdifield on Executors and Trustees,

Prima facie, it is the duty of a legal personal representative to perform all contracts of his testator or intestate, as the case may be, that can be enforced against him or her, whether by way of specific performance or otherwise: Anguilla v. Estate & Trust Agencies (1927) Ltd.1938 CanLII 430 (UK JCPC), [1938] 3 W.W.R. 113 (Singapore P.C.).”

This means that estate trustees cannot unilaterally amend or breach the deceased’s contractual obligations, see Newlands Estate, 2017 ONSC 7111.

This applies equally to oral contracts so long as corroboration requirement under section 13 of the Evidence Act is also satisfied:

 “… when dealing with contracts which are substantially or wholly oral: (i) it is necessary to distill from the words and actions of the parties what they intended: see G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011) at 16; (ii) evidence of the parties’ subjective intentions has no independent place in determining the terms of their bargain: Eli Lilly & Co. v. Novopharm Ltd.1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 at para. 54; (iii) the test of what the parties agreed to requires an objective determination; and (iv) the contract must include the requisite elements of offer, acceptance and consideration.”

See S & J Gareri Trucking Ltd. v. Onyx Corporation, 2016 ONCA 505.

Thanks for reading!

Doreen So

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