Reasons for Judgment
Court File No.: CV-24-00000115-00ES
Date: 2025-05-29
Ontario Superior Court of Justice
Between:
Zoranna Drumonde and Nicholas Spellay, Applicants
– and –
Rosalie Spellay in her personal capacity, Rosalie Spellay in the capacity of the Estate Trustee of the Estate of Rose Anne Spellay, the Estate of Sheila Marie Spellay, and the Estate of Rose Anne Spellay, Defendants
Appearances:
M. Basiri, for the Applicants
L. Douglas, for the Defendants
Heard: February 3, 2025
Bellows, J.
Introduction
[1] This is an application brought by applicant-siblings, Zoranna Drumonde and Nicholas Spellay, against their defendant-sister, Rosalie Spellay, and their mother’s estate. They seek the removal of Rosalie Spellay as the estate trustee and the sale of the family cottage property in Dunchurch.
[2] Their mother died approximately 22 years ago. The cottage was left to her surviving children with the intention that it would stay in the family and be shared as a cottage property. All children were allowed to opt out of this shared cottage property and be paid $5,000.00 for their share. Although two of the five children have since passed, no one has opted out.
[3] The defendant, Rosalie Spellay, has been the caretaker of the property. She has paid the property taxes personally. In addition to general maintenance, she improved the property over the past 22 years or so. The Estate of Rose Anne Spellay was modest; the funds have long since been depleted. Rosalie has stayed at the property year-round for many years as she is of limited means and found it impossible to maintain a separate residence and the cottage property.
[4] Rose Anne Spellay did not intend for the property to become a primary residence. Unfortunately, her modest estate was insufficient to maintain the cottage, hence Rosalie Spellay’s decision to reside at the property.
[5] Neither Zoranna Drumonde nor Nicholas Spellay contributed financially to the upkeep of the cottage or the municipal taxes.
[6] They are seeking the sale of the property and an equal division of the proceeds. Rosalie Spellay is opposed to selling the property and wishes to buy them out for $5,000.00 each, in keeping with their mother’s Will. The applicants have abandoned their request for occupation rent.
The Last Will and Testament of Rose Anne Spellay
[7] It is most unfortunate that the Last Will and Testament of Rose Anne Spellay was not more clearly drafted. As it stands, the court is required to interpret the wishes of the late Ms. Spellay more than 20 years after her death.
[8] The Will clearly appointed Rosalie Spellay as Executrix and Trustee. Zoranna Drumonde was included as an alternative. All property was given to the Trustee, with several stated trusts. I have excerpted the relevant clauses in the Will below:
3.(a) To use her discretion in the realization of my estate, with power to my Trustee to sell any part of my estate at such time or times, in such manner and upon such terms…, as my Trustee may in her discretion decide upon, or to postpone the sale of any part of my estate as long as she pleases.
3.(d) I GIVE, DEVISE AND BEQUEATH the balance of my entire estate unto my five dear children, namely, SHEILA ANDREWS, ZORANNA DRUMONDE, ROSALIE SPELLAY, FRANK SPELLAY, and NICHOLAS SPELLAY, equally, that is, share and share alike, subject to the following express provisions:
(iii) the balance of my estate is to be converted into money, and such money is to be used for the upkeep of my cottage in Dunchurch, Ontario, for the use of all my children for so long as they live;
Any child of mine who does not wish to participate in the use of my cottage in Dunchurch, Ontario, can receive his or her share of my estate, being the sum of $5,000.00, provided he or she released the remaining brothers and sisters from any further interest or participation in the said cottage property. This cottage is to be used as a seasonal residence and not as a permanent residence.
It is my intention that this cottage should eventually be devised to my last surviving child, or if my last two, three, or four children agree between themselves to see the same, then the proceeds from the sale of the said cottage are to be split equally between my said children.
MY TRUSTEE may make any division of my estate or set aside or pay any shares or interest therein, either wholly or in part, in the assets forming my estate at the time of my death or at the time of such division, setting aside or payment, and I expressly declare that my Trustee shall in her discretion fix the value of my estate or part thereof for the purpose of making any such division, setting aside or payment and the decision of my Trustee shall be final and binding on all persons concerned.
I DECLARE that my Trustee when making investments for my estate … may make investments which in her discretion she considers advisable and my Trustee shall not be liable for any loss that may happen to my estate in connection with any such investment made by her in good faith. [Emphasis added].
The Issues
[9] The jurisprudence from the Court of Appeal has established the “armchair principle” requiring the court to consider, as best as possible, the circumstances that existed when the will was drafted, and which might reasonably be expected to influence the testator in the disposition of their property. The court must give due weight to those circumstances insofar as they bear on the testator’s intentions, review the entirety of the will, and, after fully considering all its provisions and the language used, determine the intention in the testator's mind: see Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at paras. 37-39; see also Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 13.
[10] The testator’s intentions must be balanced against other principles at law. Testators have a wide latitude in Ontario to distribute their estates as they see fit; however, this freedom is not absolute. “The courts have recognized various categories of cases where public policy may be invoked to void a conditional testamentary gift: see Spence v. BMO Trust Company, 2016 ONCA 196, 129 O.R. (3d) 561, at para 30.
Tenancy in Common vs. Joint Tenancy – What Was Her Intention?
[11] Generally speaking, a testator cannot force individuals to own or continue to own a property indefinitely to keep it in the family, even if it is their genuine intention.
[12] In considering the Will, the court finds that her intention was for the cottage property to remain in the family – to be owned jointly by her surviving children, and, ultimately, by her last living child. This is how Rosalie Spellay interpreted her mother’s intentions, and it appears from their actions, or lack thereof, that the remaining siblings (the applicants and their now-deceased siblings) also interpreted their mother’s intention.
[13] Viewing Rose Anne Spellay’s Will through this lens is significant, and it may be used to understand why her estate has not yet been administered. As a modest estate with, at the time, a very modestly valued cottage property, the upkeep costs ultimately outlived the estate funds. Rosalie Spellay, as the named executor and trustee, decided to remain on the property and take care of the investment. She did so, on a simple reading of clauses 3a., 6, and 7, under the Will, though notably in contravention of clause 4.
[14] However, though this intention may provide the lens, it also provides the legal framework for how the property ownership would have passed had the Will been administered at the time, or reasonably after her passing. The Will creates a situation of a joint tenancy rather than a tenancy in common.
[15] The language of the Will, combined with the expectation that the estate would have to be administered and the Will could not, indefinitely, hold the siblings as co-owners, has the following consequences:
a. First, the property would be transferred into the names of each of the living siblings as joint tenants, and upon their subsequent deaths, their interest would naturally flow to the remaining property owners. Should all siblings partake in the cottage property as hoped, and ultimately, one sibling survives all others, the property would then become theirs solely. This accords with clauses 3d., 5, and 6.
b. Second, once the modest estate funds had been depleted, each of the siblings would have been equally responsible for the upkeep and improvements to the property.
c. Third, any sibling who wished to opt out of the cottage property could have received a buy-out of $5,000 from the estate, and would not be named as a joint tenant, thereby having no further interest in the property. I will return to this in the next section.
[16] The property, therefore, shall be treated as though it is one held in a joint tenancy between the parties: Zoranna Drumonde, Nicholas Spellay, and Rosalie Spellay. Their non-deceased siblings’ ownership would have ended at the time of their passing, and, as such, their children, if any, do not receive an interest in the property.
[17] As a joint tenancy, the Partition Act, RSO 1990, c P.4 applies, and the applicants can force the respondent to sell the property and divide the proceeds.
The Effect of the Opt-Out Clauses
[18] Returning to the intention of the testator, and giving meaningful effect to those intentions, for the Will to have been administered in a timely fashion, not only would there have been a joint tenancy created, but it would have given each sibling at that time the option to receive $5,000.00 from the estate thereby releasing any interest they could claim in the property.
[19] This had to be a one-time opt-out option rather than an ongoing possibility. Otherwise, it could create several future uncertainties. The most glaring in this case is that the estate would be depleted of funds and unable to provide for the $5,000.00, as is the case today. The estate has long since run out of funds. Rosalie Spellay’s affidavit states that she has been paying the property's taxes and upkeep for many years. The estate would not be able to fund a buy-out at this time. Although Rosalie proposes that she personally pay each applicant $5,000.00 to buy out their interest under that clause of the Will, this could not be funded from the estate.
[20] This court finds that clause 4 shall be read as a one-time option to be bought out of the cottage property; it cannot remain open because the Will has not been properly administered and has, therefore, expired.
The Passage of Time and the Increased Value of the Property
[21] The evidence before the court is that the property has increased significantly in value since the passing of Rose Anne Spellay.
[22] Two of the joint owners now want to sell the property and, following this decision, they can force that sale. Fortunately for them, Rosalie Spellay has been paying the taxes so there are no arrears. She has also been performing upkeep on the property and completing some improvements to the cottage and property. It continues to be a modest cottage, albeit without tax arrears, which has an increased value despite the estate having no remaining assets. They stand to benefit substantially from the significant passage of time and the investment made by their sister.
The Impact of Rosalie’s Permanent Residency
[23] It is acknowledged by all parties that the cottage was not to be a permanent residence, and that Rosalie does reside there full-time.
[24] The evidence from Rosalie Spellay is that she was unable to pay for the taxes and upkeep of the property, while also maintaining a separate residence for herself on her modest disability pension of $1,100.00 per month.
[25] Rosalie Spellay’s affidavit also indicates that she resided for about half the year at the cottage with her mother for years before her passing as well. Her affidavit describes the maintenance, bills, and upkeep she has done over the years as follows:
a. payment of annual property taxes;
b. payment of snow removal fees;
c. property maintenance such as cutting the grass and trimming the trees;
d. payment of a bin rental most years to remove debris;
e. removal of the outhouse and installation of a biodegradable toilet (5-6 years ago at a cost of $2,500.00); and
f. payment of hydro bills.
[26] There is some evidence before the court that the siblings have spent time with their families at the cottage. This evidence is far from fulsome from either side – though there is a suggestion from the applicants that they have not used the property because of Rosalie Spellay’s permanent residency, there are no specifics that would indicate any discussion of any issues or requests made of her other than to sell the property.
[27] It is clear that, without her contribution to the property financially and through physical labour for the past 22 years or so, these things would not have happened or been as enjoyable.
Conclusion
[28] After careful consideration of all the circumstances of this matter, I make the following orders:
a. The property located at 9 Fisher Lane RR#1, Dunchurch, Ontario, shall be listed for sale within 90 days of the date of this decision.
b. Rosalie Spellay shall remain as the executor of the Estate of Rose Anne Spellay so long as she takes steps to administer the Estate and complies with this decision.
c. The proceeds of the sale shall be deposited in trust pending the determination of the division of the said proceeds between Zoranna Drumonde, Nicholas Spellay, and Rosalie Spellay.
d. Rosalie Spellay’s contribution to the property shall be acknowledged by way of an unequal division of the proceeds of the sale of the property in her favour.
[29] Should the parties not be able to agree upon the unequal division in favour of Rosalie Spellay, they shall bring a motion before me for a determination of the same.
[30] Each party shall bear their own costs for this application.
Bellows, J.
Released: May 29, 2025