How Long is Too Long for a Non-Owner to Remain in an Estate Property?
In the recent decision of Kenney v. Martin, the Honourable Justice Charney required the son of a Deceased to vacate an Estate property within 7 days of the property being sold, and further required the Estate Trustee to wait for a period of at least 60 days before closing on a sale of the property.
Facts
The Deceased died leaving behind two sons, Derek and Christopher. Derek resided in the Deceased’s home (the “Home”) for his entire life and continued residing in the property after the Deceased’s death. Derek also commenced an application against the Estate for dependant support under the Succession Law Reform Act, RSO 1990, c S.26.
The essential terms of the Deceased’s will divide the residue of her Estate between her two sons, which residue included the Home. The Deceased also named her sister as Estate Trustee.
When the Estate Trustee attempted to appraise and list the deceased’s Home for sale, they were met with interference and threatening responses from Derek.
Position of the Parties
Considering Derek’s conduct, the Estate Trustee sought declarations and orders that, amongst other things, the Deceased was the sole owner of the Home; the Home vested in the Estate Trustee upon death; the Estate Trustee is entitled to immediate vacant possession of the Home and power of sale; and that Derek was required to vacate the Home within 30 days.
In response, Derek conceded that the Home could be sold but sought an adjournment to a mutually agreeable date. The basis for the requested extension included that he had lived in the Home for his entire life and “needed time to plan his next steps” and has commenced a dependant support application against the Estate that remains unresolved.
Analysis
Section 2(1) of the Estates Administration Act, R.S.O. 1990, Chapter E.22 vests all property unincumbered by rights of survivorship in an Estate Trustee upon death:
2 (1) All real and personal property that is vested in a person without a right in any other person to take by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition, devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, it shall be administered, dealt with and distributed as if it were personal property not so disposed of.
Accordingly, Justice Charney found that the Home and associated powers vested in the Estate Trustee upon the Deceased’s death.
At the same time, Justice Charney accepted an undertaking from Derek to cooperate with the Estate Trustee moving forward and required that the Estate Trustee wait 60 days before closing on any Agreement of Purchase and Sale for the Property while further requiring Derek to vacate at least 7 days prior to the date of closing.
Concluding Comments
This decision speaks to the immediate authority vested in Estate Trustees to deal with Estate assets contrasted against reasonable needs and expectations of third parties and beneficiaries.
Written by: Evan Pernica
Posted on: September 30, 2024
Categories: Commentary, Estate Administration, WEL Newsletter
In the recent decision of Kenney v. Martin, the Honourable Justice Charney required the son of a Deceased to vacate an Estate property within 7 days of the property being sold, and further required the Estate Trustee to wait for a period of at least 60 days before closing on a sale of the property.
Facts
The Deceased died leaving behind two sons, Derek and Christopher. Derek resided in the Deceased’s home (the “Home”) for his entire life and continued residing in the property after the Deceased’s death. Derek also commenced an application against the Estate for dependant support under the Succession Law Reform Act, RSO 1990, c S.26.
The essential terms of the Deceased’s will divide the residue of her Estate between her two sons, which residue included the Home. The Deceased also named her sister as Estate Trustee.
When the Estate Trustee attempted to appraise and list the deceased’s Home for sale, they were met with interference and threatening responses from Derek.
Position of the Parties
Considering Derek’s conduct, the Estate Trustee sought declarations and orders that, amongst other things, the Deceased was the sole owner of the Home; the Home vested in the Estate Trustee upon death; the Estate Trustee is entitled to immediate vacant possession of the Home and power of sale; and that Derek was required to vacate the Home within 30 days.
In response, Derek conceded that the Home could be sold but sought an adjournment to a mutually agreeable date. The basis for the requested extension included that he had lived in the Home for his entire life and “needed time to plan his next steps” and has commenced a dependant support application against the Estate that remains unresolved.
Analysis
Section 2(1) of the Estates Administration Act, R.S.O. 1990, Chapter E.22 vests all property unincumbered by rights of survivorship in an Estate Trustee upon death:
2 (1) All real and personal property that is vested in a person without a right in any other person to take by survivorship, on the person’s death, whether testate or intestate and despite any testamentary disposition, devolves to and becomes vested in his or her personal representative from time to time as trustee for the persons by law beneficially entitled thereto, and, subject to the payment of the person’s debts and so far as such property is not disposed of by deed, will, contract or other effectual disposition, it shall be administered, dealt with and distributed as if it were personal property not so disposed of.
Accordingly, Justice Charney found that the Home and associated powers vested in the Estate Trustee upon the Deceased’s death.
At the same time, Justice Charney accepted an undertaking from Derek to cooperate with the Estate Trustee moving forward and required that the Estate Trustee wait 60 days before closing on any Agreement of Purchase and Sale for the Property while further requiring Derek to vacate at least 7 days prior to the date of closing.
Concluding Comments
This decision speaks to the immediate authority vested in Estate Trustees to deal with Estate assets contrasted against reasonable needs and expectations of third parties and beneficiaries.
Author
View all posts