If he interferes with the sale, the estate will likely suffer irreparable harm: court
The Ontario Superior Court of Justice has prohibited an heir from taking any action that would interfere with the sale of the deceased’s property initiated by the estate trustee.
In Marcy v. Marcy, 2023 ONSC 5499, Gordon and Brian Marcy are brothers and the residuary beneficiaries of their late mother’s estate. Their mother passed away in 2015. In her will, she appointed Brian as her estate trustee. However, an independent third party, Adam Dummel, eventually replaced Brian as estate trustee.
The trustee sold the deceased’s house with a closing date set. Brian registered a caution on the title to the house to stop the closing. He later removed the caution when the estate trustee’s counsel and Gordon Marcy objected. Nonetheless, the trustee asked the court for an order to vacate the caution to ensure that any “no dealings indicator” is removed from the title. He also sought an order preventing Brian from interfering with the upcoming closing.
Brian’s counsel argued that under s. 9 of the Estate Administration Act, title to the property vested in the two brothers three years after their mother died. That was long before Hummel was appointed as trustee. As such, Brian’s counsel said that the estate trustee had no right to sell Brian’s vested interest in the house or to close the sale. Accordingly, the counsel asserted that the registration of the cause was reasonable.
The Ontario Superior Court of Justice noted that the will provides the estate trustee with the “power to sell the property at such times and in such manner” as the estate trustee sees fit.” The court explained that the Estates Administration Act “will not limit the scope of that power by requiring that the property best after a specific period of time.”
The court further acknowledged that the estate trustee had undertaken “extraordinary efforts” to accommodate Brian Marcy, who was given every reasonable opportunity to advance his interest in the house. The court noted that Brian had raised no other basis to prevent the sale from closing. The balance of convenience associated with the upcoming sale favours getting the sale closed and moving the estate administration closer to an end.
The court raised concerns regarding Brian’s stake in the house due to the claims made against him by Gordon Marcy for years of destructive waste of the house, accrued tax arrears, imputed rent, and outstanding cost orders.
The court said it was not in a position to find that any loss that may be suffered by the estate or the beneficiaries by any further actions by Brian to interfere with the closing of the sale could be made up from Brian’s share of the house proceeds. As a result, the court concluded that the estate trustee and Gordon Marcy were at real risk of being unable to recover any losses incurred by any further interference with the upcoming closing by Brian. The court emphasized that if Brian Marcy interferes with the closing, the estate and Gordon are likely to suffer irreparable harm.
Accordingly, the court said there was a proper case for the court to grant an interlocutory injunction prohibiting Brian, anyone acting on his instructions or his behalf, and anyone with knowledge of this order from taking any action that may interfere with the closing of the sale of the house by the estate trustee. The court prohibited Brian from registering any document or interest on title to the property except with leave of the court obtained on notice to the estate trustee and Gordon Marcy.
