Brian Madigan LL.B., Broker
BRMadigan@iSourceRealEstate.com

RE/MAX West Realty Inc.,
Brokerage
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300
Toll Free: 1-888-507-0817

 

Search Blog

Search in:  
    
    
       

Sort by:

Matrimonial Home Controversy and Litigation

June 24, 2013 - Updated: June 24, 2013

 

 

 

There is an interesting case which was reported by the Toronto Star on 21 June 2013. It dealt with a home owned by a deceased, and the issue of entitlement to that property by the “wife” or the “daughter”. And, as you might imagine, they are not related to each other.

 

Please read the article at:

 

http://www.thestar.com/news/gta/2013/06/21/cops_called_charges_laid_in_fight_over_dead_mans_home.html

 

 

* If it is not readily accessible, then please see below the attribution lines.

 

The basic facts are as follows:

 

  • Doug Plant, 61, just passed away in March 2013,
  • he owned a waterfront home on the Holland river
  • Doug was married, then separated from Bonny Butler
  • Doug made a Will in July 2012, appointing his daughter, Elizabeth as his Estate Trustee
  • The Will excluded Bonny from “all inheritance”
  • Bonny claims “she was back”
  • There was never a divorce
  • Bonny says she is entitled to a share in the family property (or at least some)

 

Based on these facts alone, it would appear that Bonny is out of luck. However, in real life, things are always more complicated than they may be in theory.

 

Here are some additional facts that you need to know:

 

  • Bonny and Doug bought the house together in the 1990’s
  • In 1997 the house was placed in Doug’s name alone
  • 2009, they separated, Bonny received over $62.000 for her interest in the house and Doug’s pension

 

So far, so good if you are looking at this issue from the perspective of Doug’s estate.

 

But, here are some “complications”:

 

  • Bonny says she and Doug patched things up
  • She didn’t pay back any of the money she received
  • Bonny    moved back into the house in 2010
  • She lived there “sometimes”
  • She continued to have a place closeby in Aurora
  • She says she has Family Law Act rights

 

So, what happened?

 

Elizabeth, the daughter attempted to take possession of the house and exclude Bonny. This took place on two occasions, one a few days after the death, and again about 60 days later. Police has charged Elizabeth with trespassing. The police will allow Bonny to stay there until the Court rules otherwise.

 

Well, what do you think about all of this? It can get quite complicated! Who’s right and who’s wrong? Who should have access, who should have possession? Who owns this home?

 

Outstanding questions for real estate agents:      

 

Would you be able to summarize the applicable law in this case?

 

1. This property, at this time:

 

Would you take a listing for this property?

Who has the right to sign?

Should two people sign the listing?

How would you show the property?

What would you say, if anything in the listing?

 

2. This property, in February:

 

Would you take a listing for this property?

Who has the right to sign?

Should two people sign a listing?

How would you show the property?

What would you say, if anything in the listing?

 

 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com

 

 

*

“By: Marco Chown Oved

As he lay dying of lung cancer this spring, an East Gwillimbury father appeared to have his affairs in order. He had a will and a separation settlement. But after he passed away in March, his house became ground zero for a family feud.

Today, Doug Plant’s wife lives rent-free in the on the leafy property that backs onto the East Holland River, while his daughter, who is the trustee of his estate, faces criminal charges and jail time.

Plant, who was 61, succumbed to lung cancer in March. His daughter, Elizabeth, says she wants to respect his will, which specifically excludes her stepmother, Bonny Butler, from all inheritance.

Butler, who had separated from Plant several times but never divorced, points to the Family Law Act, which she says entitles her to a share of the family’s property, hence at least some of the house.

It’s a case of family law versus estate law, and trying to figure out which one takes precedence can be difficult, said Jordan Atin, a law professor at York University and an expert in estate law who is not involved in the case.

“If you have a will, then that will trump,” he said. “When you’re disposing of the property you’re entitled to dispose of, you don’t have to leave anything to your separated spouse.”

However, the spouse could argue she is a dependent. “A person who has a dependent cannot cut that dependent completely out of their estate,” said Atin. “(They) must make adequate provision for proper support.”

The case is complicated by the fact that Butler, who bought the house with Plant in the 1990s, separated from him in 2009 and received a $62,361.50 equalization payment for her half of their house and Plant’s pension.

Property records, however, indicate that Butler was removed from the house’s deed much earlier — in 1997. 

Butler, who also uses the surname Plant, says she patched things up with Plant and moved back in with him in late 2010. She admits she didn’t pay the money back, nor did she get her name put back on the deed.

When Plant died, Butler asserted her right as his spouse, under the Family Law Act, to stay in the house for 60 days rent-free.

She then filed a lawsuit against Plant’s estate for support as a dependent and a further equalization payment above and beyond what she received in 2009, according to court documents.

“It’s unfortunate,” she said. “Doug should have still been here and it’d all be a non-issue.” Plant had asked for a lump-sum payout of his pension, she said. “It was going to be our money, not just his.”

In an interview, Elizabeth, a 28-year-old mother of two, says Butler never reconciled with her dad and didn’t move back into the house. Elizabeth says she saw her father daily when he was alive, driving over to share coffee each morning, and Butler wasn’t there.

Plant’s will is dated July 2012 — more than a year and a half after Butler says they reconciled — and it explicitly excludes her.

Butler stayed in the house periodically, Elizabeth says, but actually lived in Aurora and only moved into the house full-time after her father died.

Both sides accuse the other of taking Plant’s property, including a Harley-Davidson motorcycle that has disappeared from the garage.

Despite living only a block from her dad’s house, Elizabeth is not allowed to go within 500 meters of it. She’s the trustee for his estate, but hasn’t been able to access his things for more than a month because of the conflict with Butler.

The day of Plant’s death in March, Elizabeth and Butler returned from the hospital to the house to look at photos. Tempers flared. Butler says she was threatened and fled the house, fearing for her safety.

According to Butler, she had a good relationship with Elizabeth but after Plant’s death everything went sour. “I couldn’t even grieve properly because of what they’re putting me through,” Butler said.

She returned two days later with the police, who instructed Elizabeth that Butler had a right to stay until the estate was worked out.

When Elizabeth came back in mid-May, she gave Butler a letter informing her that she was trespassing and had to vacate the house. She says she entered the house with the key she’s had since she was a teenager and settled in for the night with her two kids.

Butler alleges she gained entry by forcing open a kitchen window because the locks had been changed.

Butler called the police, who asked Elizabeth to leave again, telling her that Butler had a right to 60 days in the house, according to police notes provided to Elizabeth and read by the Star. Elizabeth left voluntarily, but was later arrested at her house and charged with breaking and entering with intent to steal.

Elizabeth can’t believe the turn of events. She says she was cuffed in the home she lived in throughout high school and spent the night in jail.

“How can the legally vested owner of a property be charged with breaking and entering into that property?” asked her lawyer, Valerie Brown.

Police notes indicate that officers on scene were ordered to make the arrest by a detective at headquarters, even though the ranking officer on site didn’t believe it was necessary.

Det. Sgt. Heather Bentham of York Regional Police told the Star that the officer was unaware of the “lengthy” investigation that preceded the arrest.

Now, the 60 days are up and Butler is still in the house. The estate is paying the mortgage and insurance, while Butler says she’s paying the phone and cable bills.

The crown attorney just informed Elizabeth that she could see jail time for her break and enter charge.

“This has been so stressful,” Elizabeth says, adding her hair has been falling out in clumps. “I probably would have lost my mind if I didn’t have my family.”

Her friends worry about her. “She’s been carrying her dad’s ashes around with her and she just sleeps a lot,” said friend Kristine Bell.

Butler has offered to leave the property at the end of August or earlier if ordered to do so by a judge. But Elizabeth’s lawyer says the onus is on her to get a judge to rule she can stay.

“She no longer has a right to be there. Her 60 days are up,” Brown said.

Sitting at a picnic table in front of the small bungalow she rents a short drive from her dad’s house, Elizabeth waits for her two boys to come home from school.

When the 10-year-old arrives, he runs down the driveway and asks: “Are we going to get to go back to Poppy’s house today?”

“No honey, not yet,” she says.”

 

END of NOTE


Tagged with: matrimonial home. family law act fla survivors rights possession
| | Share

Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

Powered by Lone Wolf Real Estate Technologies (CMS6)