Matrimonial Claim Brought Under Guise of Estate Claim

The Estate of Lois Jean Davey v. Craig | 2018 ONSC 7367 | Ontario Superior Court of Justice

Estates and trusts --- Gifts — Types of gifts — Inter vivos gift — General principles

Deceased was mother of respondent G and constructed in-law suite at respondents' matrimonial home — Respondents were separated and were engaged in separate family law litigation — G sought unequal division of net family property based on allegation that deceased had no intention to make gift to respondents jointly — Estate applied for order declaring it had beneficial interest in matrimonial home as result of constructive trust — Application dismissed — Deceased's will provided that addition built on G's house where she resided was to become sole property of G and estate had no claim — Express words in will plainly evidenced inter vivos gift — Deceased expressly declared that estate had no claim against property, and estate did not apply to set aside will — This was matrimonial claim brought under guise of estate claim — G was at liberty to continue to assert claim for unequal division of family property in pending matrimonial litigation, but this application was estopped by words of will itself clearly indicating wishes of deceased — Claim had no basis in fact or law — Application was exercise in futility and was frivolous and vexatious on its face.