Estate Planning

Competing Claims to a Family Cottage

By Hull & Hull LLP

The 2008 decision in Sheldrake v. Sheldrake provides yet another example of the ways that relatives can fight over a family cottage. 

In this case, the plaintiff, who was the defendant’s son, brought a claim seeking declarations that he had a beneficial interest in two family cottages to which the defendant held title and that the two cottages were held in trust for the plaintiff’s benefit. 

The plaintiff alleged that the defendant had wanted to keep the cottages in the family and had asked that the plaintiff renovate and improve them.  In return, the defendant promised that the plaintiff would receive title to the cottage on her death.    

After a while the relationship between the plaintiff and the defendant deteriorated and eventually, the defendant obtained a writ of possession, which required the plaintiff to vacate the property. 

At trial, the plaintiff was self-represented, while the defendant had counsel.  The only evidence presented was that of the plaintiff.  No explanation was provided by counsel to the defendant as to why the defendant did not testify or call evidence. 

The trial judge accepted the plaintiff’s evidence and, drawing an adverse inference from the fact the defendant had adduced no evidence of her own, found an implied admission on behalf of the defendant that any evidence that she had would either not contradict the plaintiff’s position or not support that of the defendant. 

The judge accepted that an agreement existed between the plaintiff and defendant, but that it could not be enforced because it did not comply with the Statute of Frauds.  However, applying the doctrine of part performance, the court found that the acts relied upon by the plaintiff were referable to the contract asserted and allowed the declaratory relief sought.

Have a great day!

Megan F. Connolly

Full post as published by Toronto Estate Law Blog on May 26, 2008 (boomark / email).