Estate Planning

Withdrawing Permission is Not Unconscionable

By Hull and Hull LLP

In the most recent issue of our firm's newsletter, The Probater (shortly to appear on our website), Suzana Popovic-Montag deals in depth with the issue of Proprietary Estoppel.  As Suzana explains, this equitable remedy provides a useful alternative basis for the estates litigator to advance a claim against an estate but only in the presence of the right set of circumstances.  In short, a promise made with the intention to induce and on which a promisee relies to his or her detriment may be actionable in equity.

In the estates context, a promise of marriage or a promise to make a Will, which promise is never acted upon to the detriment of the claimant, may give rise to a claim predicated upon Proprietary Estoppel. 

The recent Ontario Court of Appeal decision of Schwark v. Cutting (to which Suzana refers), although not an estates case, provides a useful overview of the remedy and, more specifically, assists in advising when the remedy is not available.  In short, the claimants/Respondents in this case sought to invoke the remedy when the owners of neighbouring lakefront property no longer permitted the claimants to have access through their property to Lake Erie.  Although the claimants were successful at trial, the Court of Appeal unanimously granted the appeal by the water lot owners on the basis that: (i) the claimants knew they had no legal right to use the water lots, (ii) there was no evidence of "holding out or inducement...which could be said to have caused the Respondents to believe they had some right or benefit over the water lots" and (iii) "there is nothing unconscionable about a property owner, who, having permitted his neighbour to use his property for a time, withdraws that permission"

Again, please check our website soon and read Suzana's Probater article for a more detailed discussion of this issue.

David M. Smith

Full post as published by Toronto Estate Law Blog on May 11, 2010 (boomark / email).