Court File and Parties

COURT FILE NO.: CV18-0065 DATE: December 12, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: THE ESTATE OF LOIS JEAN DAVEY Applicant – and – GEOFFREY DAVID CRAIG Respondent – and – ISABEL IRENE CRAIG Respondent

Counsel: Jennifer Johnston, for the Applicant Sarah Kennedy, for the Respondent, Geoffrey David Craig Mark A. Fendley, for the Respondent, Isabel Irene Craig

Ruling Under Rule 2.1.01(1) of the Rules of Civil Procedure

PEDLAR J.

[1] This is an application by The Estate of Lois Jean Davey against Geoffrey David Craig and Isabel Irene Craig, as respondents, seeking an order declaring that the estate of Lois Jean Davey has a beneficial interest in the property legally owned by the respondents, and municipally known as 176 North Road, Smiths Falls, Ontario, K7A 4S4 (“the property”) as a result of a constructive trust and related claims for establishing the value of that interest, an order for partition and sale and payment of the applicant’s interest out of the proceeds of that sale.

[2] The claim is rooted in the fact that the deceased, Lois Jean Davey, who was the mother of Geoffrey David Craig, constructed an in-law suite at the respondents’ matrimonial home.

[3] One of the unusual features of this application is that the Estate of Lois Jean Davey, the applicant herein, is administered by Geoffrey Craig, who is also a named respondent. That would mean that David Craig is suing himself, along with his wife, with whom he is separated and engaged in a separate family court litigation, which includes the issue of dealing with the matrimonial home.

[4] Counsel for Isabel Craig is requesting a ruling for dismissal of this application as having no reasonable expectation of success and, also, claiming that it is an unnecessary attempt to bring a matrimonial claim in a different forum. Isabel Craig has different counsel in the matrimonial proceedings, who advises that Geoffrey Craig raised the issue that his mother constructed an in-law suite at the parties’ matrimonial home in those proceedings, in which he sought an order for sale of the property, which motion was dismissed with costs in January 2018.

[5] Geoffrey Craig is seeking an unequal division of the net family property based upon an allegation that his mother, the late Lois Jean Davey, had no intention to make a gift to the respondents jointly. He has made that allegation in affidavit of his own, sworn August 20, 2018, at paragraph 9. Geoffrey Craig is free to pursue that claim in those matrimonial proceedings.

[6] This claim, in this application, asks for a declaration that the estate of Geoffrey Craig’s mother has a beneficial interest in the matrimonial home under the doctrine of Constructive Trust.

[7] In support of this application, the affidavit of Geoffrey Craig attaches an exhibit representing a copy of the Last Will and Testament of the late Lois Jean Davey. The husband of the late Lois Jean Davey passed away in 2013 and, therefore, the provisions of the will provide that the proceeds of the estate be divided amongst her issue in the portions indicated.

[8] The will goes on to provide a term directly related to the addition of the in-law suite in the following terms:

The addition built on my son, Geoffrey David Craig’s house where I reside shall become the sole property of said son and the estate shall have no claim on said addition.

[9] The express words of Lois Jean Davey in her will plainly evidence an inter vivos gift. The estate is the applicant in this matter. The testatrix expressly declared that the estate shall have no claim against the property. The application by the estate does not seek to set aside the will. The executor, Geoffrey Craig, does not attempt to assert any other estate claim against the co-respondent, Isabel Craig. Clearly, this is a matrimonial claim brought under the guise of an estate claim.

[10] As stated above, Geoffrey Craig is at liberty to continue to assert a claim for unequal division of net family property, which will be addressed in the pending matrimonial litigation. This application is estopped by the very words of the will itself, clearly indicating the wishes of the deceased. An estate trustee cannot pursue a claim expressly forbidden by the terms of the will without first successfully setting aside the terms of the will. Accordingly, no reasonable person could expect to distort logic and reason to succeed on this application.

[11] I find the submissions by counsel on behalf of the applicant herein to not sufficiently address the issue that the will of the deceased is clear on its face that she never intended for her estate to pursue a claim of this nature. The estate is estopped from making this claim because her express words in her Last Will and Testament confirmed that the addition did not belong to the estate and that no “chose in action” would devolve to the benefit of the other beneficiaries of the decedent.

[12] The claim has no basis in fact or law. One cannot give the gift, make clear evidence of that gift, and then recover the property using the law of unjust enrichment.

[13] I find this application to be an exercise in futility and frivolous and vexatious on its face. This gift was made inter vivos and, by definition, cannot fail or lapse in relation to the administration of the estate of the testatrix.

[14] The applicant cannot trace the property to the estate. The testatrix had already given whatever claim she, or her estate, had through the property to her son, as evidenced by the terms of the will.

[15] The application is dismissed for the reasons set out above. Clearly, the respondent, Isabel Irene Craig, is entitled to her costs to this point in the application. If the parties cannot agree on the quantum and terms of payment of costs, counsel on behalf of Isabel Irene Craig may submit written submissions on costs within 30 days with a 10-day right of reply to counsel on behalf of the applicant and Geoffrey David Craig, as respondent.

The Honourable Mr. Justice K. E. Pedlar

Released: December 12, 2018