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Family Disputes

Posted on August 1, 2004 | Posted in Lawyers' Issues

Often the most bitterly fought and nasty disputes are among children fighting over the assets of parents. Sometimes the parents are dead and, sometimes, one or both of the parents are alive. In Wade v. Turpin [2004] O.J. No. 1302 (SCJ), father had died, but mother was still alive.

The Deal

The deal was almost in writing, but not quite. Father wanted the plaintiff, one of four adult children, to move into the family home with the parents; pay half the expenses that the parents could no longer afford to carry alone; make renovations to spruce up the old homestead; and buy the home from the parents’ estate for $500,000, its fair market value at the time of the deal.

The parents obtained the services of an estate planner who met extensively with the parents and drew up a memo that was discussed at a family meeting with all children and the parents. The memo talked about the division of the various assets. It mentioned that the home had a value of $500,000, the plaintiff would ultimately inherit the home, and the plaintiff and her family were to move into the home and begin renovations. It did not specifically say that the plaintiff would be allowed to purchase the home for $500,000 on the death of the parents.

On the strength of the memo and the oral agreement, the plaintiff and her husband sold their residence, used all of the equity from the sale for the renovations to the family home, moved into the family home, paid their share of the expenses of the home, and lived in the home with the parents. Unfortunately, notwithstanding the efforts of the plaintiff over the ensuing seven years, the parents never signed the memo and never drew up their wills to effect the estate plan and memo.


Father had always been the titled owner of the family home. The judge described the family situation as a traditional European one in which father had complete control of the family finances and property.

Father was diagnosed with cancer in November 2001 and died on February 16, 2002. To ensure that there would be no probate fees, on December 28, 2001 two of the other children persuaded father to put the family home into joint names with mother and to execute a will, presumably leaving everything to mother.

Five days after father died, the same two loving children took mother for an overnight stay away from the family home. Mother never returned.

Four days later, mother informed the plaintiff that she and her family had to vacate the family home. On March 21, 2002, mother signed a formal notice to vacate giving the plaintiff until April 1, 2002 to vacate. On April 3, 2002, the plaintiff had taken her children to school and came home to find a bailiff and her two loving sisters inside the family home changing the locks. The plaintiff called the police and was ultimately allowed to retain interim possession of the home.

Statute of Frauds

The action hinged upon the judge finding that there was an oral agreement as set out above and then determining that the Statute of Frauds did not bar the agreement from evidence. The Statute of Frauds came into play because there was no signed agreement in writing.

Of course, judges really dislike the Statute of Frauds. Once a judge finds that there is an oral agreement, it offends a judge’s sense of justice to be unable to give effect to it. Accordingly, there are a number of common law exceptions to its effect. One of these exceptions is the equitable doctrine of part performance.

The judge analysed the facts in light of the requirements of the doctrine. First, she held that the plaintiff’s acts of part performance were referable to the oral contract. They were done not in preparation for performance, but in actual performance of the oral contract. The plaintiff sold her house, performed the renovations, moved into the home, and paid for half of the upkeep.

Second, the plaintiff performed the acts of part performance, not a third party.

Third, had the contract been in writing, it would have been specifically enforceable.

Finally, there was clear evidence, oral and in writing, that there was a contract and of the terms of it.

Since the plaintiff had proven all aspects necessary to fall within the equitable doctrine of part performance, the judge held that the plaintiff had the right to purchase the family home for $500,000. The loving sisters, who were the obvious instigators of the family discord, were foiled. Justice triumphs again.


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