Survivor could not dispose of substantial parts of property to defeat agreement

Estates – Testamentary instruments

Deceased and wife were married for 24 years and had mutual wills. Deceased had three children and wife had two biological and eight adopted children. After death of deceased, wife donated $200,000 to college in deceased's name. Deceased's children brought application for various orders and declarations, including declaration that children had constructive trust over assets and that donation was breach of trust. Application dismissed. Terms of mutual will agreement signed by deceased and wife were not restricted to terms just in agreement, but rather in agreement as well as wills and acknowledgment and direction. Agreement provided that each party would give survivor all their property absolutely, however survivor could not dispose of substantial parts of property to defeat agreement. Donation was not substantial considering estate was worth approximately $4 million, and purpose of donation was to honour deceased's memory and not defeat mutual wills agreement. No basis existed upon which to impose constructive trust or grant any relief requested by children.

Nelson v. Trottier (2019), 2019 CarswellOnt 9447, 2019 ONSC 1657, L.A. Pattillo J. (Ont. S.C.J.).

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