Question:
Present and Future time: when “mom”passes away, her recreational property in Ontario is to go to her two kids. This is what mom wants and has told her two kids.
Background
Past: Mary, a daughter (who is the mom now) and her Dad buy a 100 acre property in 1979 with a rough cabin on it. Dad is only on title for mortgage purposes to help her. Mary pays off loan to Dad and has proof she paid him back. Dad has nothing to do with property. But, they didn’t take Dad off title. Title is in both names as Tenants- In- Common.
In the meantime, Dad gets new wife. Then, Dad passes away about 15 years ago. The new wife, Mildred thought her husband removed his name from the title, but that didn’t happen.
Mildred’s children from a previous marriage found out about this property a month ago and are involved now and want a piece of the pie.
Does Dad’s wife, Mildred get part of his portion of this property? He died 15 years ago, Wouldn’t this have been discovered back then? Now what? The new wife, Mildred is getting a lawyer involved.
Mary, daughter (now mom) is married to someone else now and they live in Florida, and he wants a piece of the pie too! The property still states tenants- in- common. So, it would go to her estate. She does not have a Will, as her new husband told her not to write one up.
Answer:
Indeed, this is complicated. She will require the assistance of a lawyer who specializes in Estate Litigation.
Does her father have an interest in the property? That’s possible. What was the deal when they purchased? He offered two things to the deal:
1) equity, and
2) mortgage qualification.
The equity has now been repaid. The mortgage qualification would disentitle him from buying something else at the time.
He took an interest as a Tenant-in-Common. What was his percentage? If there is no evidence of that (ie. 99%/1%), then it’s 50/50. If he wanted his daughter to have the property if he passed away, then the easy route would have been Joint Tenancy, but that arrangement was skipped.
Was his interest to be held in trust? Where’s the paperwork? That Trust agreement should be somewhere. Did he make a Will at the time? If so, that Will would have been revoked by reason of his marriage.
The second wife’s children would never become his children, unless he adopted them. When he died 15 years ago, did he have a new Will? If so, who got the money? If he died intestate, his second wife would get the first $200,000.00. What happened at that time? Was “probate” sought? What assets were identified? This could be problematic if Dad’s half interest was taken into consideration for the purpose of calculating the probate fees, If not, then, this might constitute evidence that Mildred did not believe that Dad (her husband) owned a half interest in the property.
It is also possible that the second wife, Mildred may have inherited his one half interest. You say she knew about this and just assumed the title has been transferred. If that’s the case, there’s a 15 year limit for lawsuits under the Limitations Act that may have been triggered.
If there happens to be a mortgage on title, it might be wise to acquire that mortgage and sell under Power of Sale, but that’s probably unlikely.
Going forward, all these questions need to be answered before one would know the correct answer. The good news is that the Courts can give her an answer if she spends about somewhere between $25,000.00 and $50,000.00.
I should also add that Mary by adding her own two kids to title really wouldn’t help, and would only affect her one-half interest.
Her new husband in Florida would not likely have any interest, however, that would involve a preliminary question of deciding which laws apply to the asset, Ontario or Florida. If she moved to Florida, became a non-resident of Canada, adopted Florida as her new residency, and then married the new husband, then, Florida laws would apply.
Again, it’s complicated. Get an Estate Litigation lawyer.
The moral of the story is simple:
- Place the title in Joint Tenancy
- Get a Trust agreement
- Get some sort of agreement
- Dad should make a Will
- Dad should execute a mortgage in favour of Mary
- Dad should have a marriage contract with his second wife.
Of course, by now, these options are gone!
Brian Madigan LL.B., Broker