Josh Shneer

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) against a residential property, an order preserving the property, and an order that the proceeds of sale of another property be paid into court.

The dispute arose between the estate of a deceased sister and the surviving sister over properties originally owned by their mother.

The court dismissed the motion for a CPL and payment into court, finding that damages would be an adequate remedy and the plaintiffs did not demonstrate a serious prospect of ultimate success or risk of dissipation.

The court granted the defendants' cross-motion to permit the sale of the property, provided half the net proceeds are paid into court.

The applicants, children of the deceased, sought declarations of a constructive trust over the survivor's assets based on a mutual wills agreement, alleging breach due to a $200,000 gift and failure to provide information.

The court found that a constructive trust only arises upon breach of the mutual wills agreement, not automatically upon the first testator's death, particularly when the survivor receives assets absolutely.

It was determined that the survivor's gift was not substantial enough to defeat the agreement, nor was her failure to provide information a breach, as the applicants were not beneficiaries under the deceased's will.

The application was dismissed in its entirety.

The Estate Trustees moved for court approval of a Memorandum of Understanding (MOU) and Minutes of Settlement (MOS), and to enforce the MOU against a beneficiary.

The court found that the beneficiary's consent to the MOU was conditional on obtaining independent legal advice, which was subsequently withdrawn.

The MOS, negotiated without all parties, contained terms significantly different from the MOU.

The court ruled that the MOU was void due to the withdrawal of conditional consent, and the MOS could not be approved as it was not agreed to by all parties and contained inconsistent terms.

The motion was dismissed, and the parties were directed to update estate information for further proceedings.