Monty Thomas Hyde

This application concerned the interpretation of a will to determine whether a parcel of land was bequeathed to two sons as joint tenants or tenants in common, and whether a subsequent agreement between the sons severed any potential joint tenancy.

The applicant, Martin's estate trustee, sought a declaration that Martin's estate was entitled to an undivided one-half interest in the property, which the respondent, Bill, had appropriated.

The court applied the "armchair rule" and considered extrinsic evidence, concluding that the testator intended to create a tenancy in common.

Alternatively, the court found that the agreement between the brothers to divide the property constituted a severance of any joint tenancy that might have existed.

The application was granted, declaring Martin's estate entitled to a one-half interest.

Following a trial concerning the validity of a will and an alleged breach of trust, the court had previously upheld the validity of the will but found one defendant liable for $140,000 in damages for breach of trust.

The successful plaintiffs sought costs on a full indemnity basis, arguing their overall success and the conduct of the defendant justified such an award.

The defendant conceded liability for costs but argued they should be assessed on a partial indemnity basis, relying in part on an earlier settlement offer and the plaintiffs’ lack of success on the will challenge.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs should follow the event but declined to award full indemnity.

The court fixed costs on a partial indemnity basis at $50,000 in fees plus taxes and $5,829.88 in disbursements, payable personally by the defendant rather than the estate.

The plaintiffs challenged the validity of their grandmother's 2004 will and the transfer of her home into joint tenancy with her daughter, the defendant.

The court found that the deceased had testamentary capacity and intended to gift the house to the defendant, rebutting the presumption of a resulting trust.

However, the gift was conditional on the defendant paying $70,000 to each of the plaintiffs.

The court held that the defendant breached her trust obligations by failing to pay the legacies and instead spending the funds for her own benefit.

The defendant was ordered to pay $140,000 to the plaintiffs.