The rising value of real estate can complicate an estate plan that fails to anticipate that possibility. An Ontario court ruled that a man can’t simply receive the family cottage as his share of his mother’s estate, when the value of that property is now much larger than the rest of the estate.
The Court of Appeal for Ontario upheld a lower court’s decision from 2025, which interpreted a will that called for a deceased woman’s estate to be divided equally between her three children, but called for one of her sons to receive the family cottage, with the value of the cottage being deducted from his share of the estate.
The problem was that the cottage accounted for more than 60% of the total value of the estate — it was appraised at $1.4 million, while the rest of the estate when she died in 2022 was just under $800,000 — implying that the value of the cottage alone exceeded the value of a one-third share in the estate by about $650,000.
As a result, a dispute arose about how to interpret the will — whether the son that received the cottage in the will should have to pay the full difference between the value of the cottage and the value of his share in the total estate, or if he should only have to give up his share of the residue of the estate (the $800,000 in other assets).
The lower court found that the overriding intention of the will was to treat the children equally, and that it didn’t anticipate the value of the cottage exceeding a one-third share of the estate.
On appeal, it was argued that the lower court ignored the deceased’s objective of keeping the cottage in the family by giving it to one of her children outright — and that the court’s interpretation will require the cottage to be sold.
The appeal court rejected that argument, finding that the interpretation of the will adopted by the judge was open to her, and that there was no error in her reasoning.
The court said its role is not to come up with a different interpretation of the will, absent an error by the lower court judge — and so, it dismissed the appeal.