The Estate of Lois Jean Davey v. Craig, 2018 ONSC 7367 (CanLII), http://canlii.ca/t/hwkb9
While there may be some overlap between family law and estate law, an estate claim should not be brought as an attempt to gain certain relief that was denied in a family law claim. This is what occurred in Davey v Craig 2018 ONSC 7367 where Justice Pedlar dismissed “a matrimonial claim brought under the guise of an estate claim”, under section 2.1.01(1) of the Rules of Civil Procedure. This provision allows a Court to dismiss or stay a claim if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
An Estate Trustee was in the process of both divorcing his wife and administering his mother’s estate. He commenced an application on behalf of his mother’s estate against both himself and his wife seeking an order declaring that his mother’s estate had a beneficial interest in a property legal owned by himself and his wife. This beneficial interest, he claimed, was as a result of the doctrine of constructive trust and he sought an order for partition and sale and payment. The particular property in question was an in-law suite the mother had constructed at the husband and wife’s matrimonial home.
Parallel family law proceedings were also dealing with issues of the matrimonial home and the wife’s counsel advised that the husband had already raised the issue that his mother constructed an in-law suite in the family law proceedings and sought an order for the sale of the property. That motion was dismissed with costs in January 2018.
In support of his estate claim, the Estate Trustee provided an affidavit and attached his mother’s Will. The Will provided a term directly related to the addition of the in-law suite: “The addition built on my [son’s] house where I reside shall become the sole property of said son and the estate shall have no claim on said addition.” [emphasis added]
The Court held that “the express words” of the mother in her Will:
plainly evidence an inter vivos gift. The estate is the applicant in this matter. The testatrix expressly declared that the estate shall have no claim against the property. The application by the estate does not seek to set aside the will. The executor . . .does not attempt to assert any other estate claim against the co-respondent. . .Clearly, this is a matrimonial claim brought under the guise of an estate claim. . .An estate trustee cannot pursue a claim expressly forbidden by the terms of the will without successfully setting aside the terms of the will. Accordingly, no reasonable person could expect to distort logic and reason to succeed on this application. [emphasis added]
The Court went on to conclude that “the claim has no basis in fact or law. One cannot give the gift, make clear evidence of the gift, and then recover the property using the law of unjust enrichment.”
The application was found to be an “exercise of futility and frivolous and vexatious on its face” and was dismissed under Rule 2.1.01(1) of the Rules of Civil Procedure. Costs were ordered against the Estate Trustee.
 Davey v Craig 2018 ONSC 7367 at para 8.
 Davey v Craig 2018 ONSC 7367 at paras 9-10.