As I was surfing the internet over the weekend, I came across literature on the need for society to
take time to plan for the eventual transfer of their wealth from one generation
to the other. I think a good question that should be asked is how much planning is
enough and what type of planning could insulate my estate from
litigation?
I came across a 2013 Ontario Court decision, Park v. Park,
in which the issue at hand was a contest between Sister and Brother for
ownership of their parents’ home.
Mother and Father married each other in Korea during the
1950s. Mother and Father had five children of the marriage, the eldest
was the defendant, “Sister” and the youngest being the plaintiff, “Brother”.
In his evidence, the Brother indicated that he and his Parents
arrived in Canada in 1982, and that his family started a doughnut shop which he
worked long hours at. The money that the family earned was pooled
together and distributed by his Mother for family needs.
On November 29, 1990, Mother and Father purchased a home and
title was taken in the names of Mother, Father and Brother as joint
tenants. The Brother argues that title to the Property was taken in joint
tenancy with the expectation that he would eventually inherit the
property. The “family promise” that he would eventually become the owner
of the home was made in recognition that he had given up his personal life for
the family good.
A few weeks prior to his death Father severed the joint tenancy
by a conveyance to himself as a tenant-in-common. By his Will he left his
entire estate to Sister. Moreover, Father died after the lawsuit was
commenced but before it reached conclusion. Mother was moved to a
long-term care facility and was unable to testify at the trial.
Brother wants to set aside the transfer of title in the Property
so that on his Mother’s death he will become the sole owner of the property.
After lengthy evidence was taken from experts who gave their opinion
on the Father’s mental health along with the Lawyer who facilitated the real
estate transaction severing title to the property, the court held that the
severance of the joint tenancy by the Father was a valid transfer.
The sister attempted to argue that the Brother held his share of
the Property in trust for his Parents; however, the Court held that on the
evidence produced it could not find that the Brother held his share of the
Property in trust.
I found this case to be of interest because here we have hard
working individuals who came to Canada in the 80’s with next to nothing and
built a life. They took time to plan; however, their estate was still
strapped in litigation. As I write this blog, I sit here thinking of how
this could have been avoided?
Carpe diem.