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promises after death
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Can Promises Be Enforceable After Death?

A look at the case of Love v Schumacher

The answer to the question posed in the title of this blog is – sometimes.

In Canadian law there is a legal doctrine called “proprietary estoppel”. This doctrine will arise where the owner of land, let’s call him Albert, leads another person, Barbara, to believe that they will enjoy a benefit over Albert’s property, and in reliance on that belief, Barbara acts to her detriment to the knowledge of Albert, and Albert takes advantage of Barbara by denying Barbara the benefit at stake. While the concept may appear confusing at first, the Ontario Superior Court provides a clear illustration of how the doctrine works in Love v. Schumacher.1

In Love v. Schumacher, the plaintiff, Priscilla June Love, claimed that she had a proprietary interest in a cottage property for which she had no legal title. The legal owner of the cottage was Lee Schumacher. In 1975, Lee inherited the modest cottage from his aunt on Bob’s Lake. In 1985, Lee encouraged Priscilla to use the cottage for a few days, and did not raise the issue of paying rent. Lee told Priscilla that he had not been there in some time and the electricity at the cottage had been turned off. Priscilla took up this offer, and stayed at the cottage for five days. She found the cottage to be dirty and clearly unmaintained. The following year, Lee gave Priscilla permission to use the cottage again, and Priscilla stayed at the cottage for six weeks. Priscilla replaced the stove and upgraded the electrical system. Upon finding out about these improvements, Lee told Priscilla to continue using the cottage, and Priscilla began visiting the cottage with her family on an annual basis.

As of 1985, Lee did not pay any expenses for the cottage and did not make any efforts regarding its maintenance. Priscilla paid all expenses, upgraded, enlarged, improved and maintained the cottage between 1985 and 2010. Furthermore, there was evidence that Lee had made promises that the cottage would be legally transferred to Priscilla upon Lee’s death. To Priscilla’s surprise however, Lee’s last will and testament, signed in 2010, left the entirety of Lee’s estate to his son Barry, including the cottage. Lee died in 2012.

On a cursory look, it appears that based on the well known principles of estates law that Lee could simply change his mind and leave his property to whomever he wished. After all, the cottage is his property. He can do what he wants with it and leave it to whomever he pleases.

Priscilla made a claim against Mr. Schumacher’s estate for proprietary estoppel as well as unjust enrichment, the latter of which is outside the scope of this blog. After pointing out that the essential elements that must be established for a claim of proprietary estoppel are encouragement or acquiescence, detrimental reliance, and unconscionability,2 Justice Tausendfreund found the following at paragraph 38:

“a. In making the promise to leave the Plaintiff the cottage, Lee encouraged the Plaintiff to spend her meager funds, her time and her labour into improving the cottage.  Although he may have unknowingly encouraged her, his promise certainly induced the Plaintiff in that regard, a state of affairs in which he acquiesced.

b. Expending her efforts in that regard, the Plaintiff detrimentally relied on Lee’s promise.

c. Having directed most of her limited resources to improving the cottage in the belief that she would have the continued beneficial use of it into the future, it would be unconscionable to now deny her the continued benefits of her efforts and resources.”

It should be noted that the remedies available in a case of proprietary estoppel are broad and the court has great flexibility in establishing a remedy.3 The court in Schumacher was creative, and found that the appropriate remedy was to award a 15-year licence to Priscilla to occupy the cottage property exclusively. This licence was subject to Priscilla’s payment of realty taxes, hydro, and insurance for the cottage, and the cottage was to be maintained in good standing.

The facts and the decision in Schumacher portray a clear example of how promises may be treated in Ontario under the doctrine of proprietary estoppel. The promise to Priscilla was not enforced, but the court did recognize that there were certain expectations that flowed from the promises that the court was willing to safeguard to a degree. The case also shows that in establishing a remedy for proprietary estoppel, the court has a great deal of discretion. In this case, the court steered away from focusing on the rise in value of the cottage due to the plaintiff’s efforts, and instead awarded the plaintiff relief with an eye toward the emotional attachment that had formed by the plaintiff and her family towards the cottage. The law is also clear though, that in cases where it is appropriate, the court will make a monetary award.

 

You May Also Like:

  1. Are Promises Enforceable?
  2. But Mom promised me the House!
  3. Honouring Your Parent’s Pledge to Charity

 

 

Footnotes
  1.   2014 ONSC 4080.
     
  2.   The court quotes from the Ontario Court of Appeal in Eberts v. Carleton Condominium Corp No. 396 (2000) 2000 CanLII 16889 (ON CA), where the following test for proprietary estoppel was accepted:
    23     Proprietary estoppel is a form of promissory estoppel. …  The basic tenets of proprietary estoppel are described in McGee, Snell’s Equity, 13 ed. (2000) at pp. 727-28:

    “Without attempting to provide a precise or comprehensive definition, it is possible to summarize the essential elements of proprietary estoppel as follows:

    (i)  An equity arises where:

    (a)     the owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O’s property;

    (b)   in reliance upon this belief, C acts to his detriment to the knowledge of O; and

    (c)     O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive.

    (…)

    (iv)  The relief which the court may give may be either negative, in the form of an order restraining O from asserting his legal rights, or positive, by ordering O to either grant or convey to C some estate, right or interest in or over his land, to pay C appropriate compensation, or to act in some other way.”
     

  3.   Hayward v. Bennett, 2011 BCSC 1015, at para 68.
     

Aaron Pearl

The author of this blog is Aaron Pearl. Aaron was an associate at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.

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