22 Jul

Perils in the Succession of the Family Cottage

Suzana Popovic-Montag Litigation Tags: , , 0 Comments

A cottage is usually the setting for family bonding and happy childhood memories; however, when it comes to estate planning, ambiguous drafting can lead to family divisions and litigation that is both unnecessary and costly. This is exactly what transpired in the Ontario Court of Appeal decision of Donaldson v Braybrook 2020 ONCA 66, discussed in the Hull on Estates podcast (https://hullandhull.com/2020/02/hull-on-estates-589-cottage-planning/).


A cottage was owned by the mother of a family, who allowed all four of her adult children, Wendy, Susan, Thomas, and Barry, to use the cottage on allocated weeks. In 1995, the mother transferred the ownership of the cottage to herself, Susan, and Thomas, “as joint tenants as to the remainder in fee”, while Wendy and Barry were listed as “additional transferees”, having a “life estate” in the cottage. This language seems perilously vague, and indeed gave rise to disputes within the family after the mother passed away. At this point, Susan and Thomas severed the joint tenancy and wanted to sell the cottage as tenants in common. Barry agreed to renounce his life interest to facilitate the sale, while Wendy refused and alleged that she was also an equal owner. On summary judgment, the motion judge held that Wendy had a life interest in the cottage with a right to exclusive use. This was reversed in the judgment by the Ontario Court of Appeal.

ONCA Decision

The Court of Appeal held that Wendy’s life interest in the property was not exclusive. The Court first looked to the wording of the registered transfer on title. This was deemed to be too ambiguous to be relied upon. Susan and Thomas were listed as transferees “without limiting their interest in any way”, which could not be reconciled with Wendy and Barry’s “life interest”. The Court then looked at evidence of the actual intention of the mother in making the transfer. The Court decided that the mother’s intention was to have her four children continue to enjoy shared use of the cottage as they had done previously, as well as intending for Susan and Thomas “to enjoy ownership interests beyond the shared right to use during their lifetimes”. As such, the Court concluded the mother’s intention was to give title of the cottage to Susan and Thomas, while maintaining a non-exclusive life-time licence to occupy for Barry and Wendy that allowed all four children to continue sharing the cottage throughout their lives. As the mother’s intention was able to be deduced by the Court, there was no need to consider the presumption of resulting trust in this case.


Much of this litigation and family strife could have been avoided by more clear and concise legal drafting, or by the mother communicating her estate planning intentions to the children during her lifetime, instead of keeping it a secret. The transfer failed to explicitly state how the life interests of Wendy and Barry would coexist with the ownership of Susan and Thomas. It appears the mother intended Wendy and Barry to have life-time licences, and a properly drafted transfer would have reflected this. This case also demonstrates how, in the absence of a reliable and unambiguous legal document, the court will first look to evidence of the intention of the transferor. Such a situation highlights the perils of succession planning for cottages, where use is often split amongst family members.

Thanks for reading – and enjoy the rest of your day!

Suzana Popovic-Montag & Sean Hess

16 Nov

Meaning of “Use” and Accumulation of Wealth

Ian Hull Litigation, Wills Tags: , , , , , , , , , , 0 Comments

In a recent Ontario Court of Appeal decision, Holgate v Sheehan Estate, 2015 ONCA 717, the court was asked to consider an appeal from a motion for determination of an issue under Rule 21.01(1)(a) of the Rules of Civil Procedure. The Rule 21 motion arose in the context of a trial with respect to the interpretation of the will and codicil of John Holgate, and particularly the meaning of the word “use”. The appeal also dealt with the trial judge’s jurisdiction to hear the mid-trial Rule 21 motion, but this blog will deal with the former issue.

Mr. Holgate had passed away and was survived by two sons from his first marriage (the “sons”) and his second wife, (“Mrs. Holgate”). Mr. Holgate’s will and codicil provided for a life interest in two trusts to Mrs. Holgate. Following Mrs. Holgate’s death, Mr. Holgate’s children were entitled to the remainder of the two trusts. The wording of the two trusts provided that the trust assets were to be held for “the sole use and benefit of my wife MAY HOLGATE during her lifetime”.

The sons brought an action against their father’s estate, Mrs. Holgate’s estate and Mrs. Holgate’s daughter personally, claiming that Mrs. Holgate’s life interest allowed her to use the money but not save it. They alleged that Mrs. Holgate had not only used trust assets, but had also saved money, thereby depleting the capital of the estate to their detriment and contrary to their father’s intention.

Three days into the trial, the trial judge invited counsel to bring a mid-trial motion either for determination of an issue or for directions in order to determine this critical issue with respect to the interpretation of the will and codicil, namely the meaning of the term “use”. Counsel agreed to bring a Rule 21 motion and asked whether the wording of the will and codicil precluded Mrs. Holgate from accumulating wealth from the trusts in her own name.

The trial judge concluded that:

  • nothing in the will or codicil prevented Mrs. Holgate from saving and accumulating wealth;
  • the language of the will came as close as possible to conferring an absolute gift on Mrs. Holgate; and
  • neither of the trusts included any limitations on the use of the assets by Mrs. Holgate.

On appeal by the sons, the Court of Appeal agreed with the trial judge’s interpretation, that the words and phrases used in the trusts indicate a clear intention on Mr. Holgate’s part to allow his wife unrestricted access to the funds. They also cited Dice v Dice Estate, 2012 ONCA 469, which held that “[t]he golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used”.

Thanks for reading.

Ian Hull


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