A court has ordered that a family cottage handed down more than 20 years ago must now be sold, amid a dispute between the children who inherited it.
According to a decision by the Ontario Superior Court of Justice, a couple of siblings sued their sister to remove her as trustee of their mother’s estate and to force the sale of the family cottage, which was passed down to them when their mother died 22 years ago.
The mother’s intention was for the cottage to remain in the family and be shared among the children. If any of them didn’t want to share ownership, her will allowed them to opt out in exchange for $5,000.
None of the children ever opted out, but now two of the three surviving siblings want to sell. Their sister, the trustee of the estate, opposed the sale and sought to buy them out for $5,000 each, as the will allowed.
However, the court concluded that the buyout is no longer an option.
In its decision, the court said it’s “most unfortunate” that the will wasn’t drafted more clearly and that, as a result, it is left to interpret the mother’s wishes more than 20 years after her death.
“In considering the will, the court finds that her intention was for the cottage property to remain in the family — to be owned jointly by her surviving children, and, ultimately, by her last living child,” it found.
As a result, the court concluded that the will “creates a situation of a joint tenancy,” meaning the siblings co-own the property and that any of them can force its sale.
The provision allowing any child to opt out of co-owning the cottage in exchange for $5,000 from the estate “had to be a one-time opt-out option rather than an ongoing possibility,” the court said — and that option has now expired.
“Two of the joint owners now want to sell the property and, following this decision, they can force that sale,” the court said.
However, it also ruled that the proceeds of the sale should not be shared equally, as envisioned by the will, given that one sister maintained the cottage alone, allowing its value to grow significantly over the past 20 years.
The court noted that the sister who wanted to keep the cottage had lived at the property full time for many years, maintained it herself and paid the property taxes personally. Neither of her siblings helped pay the taxes or contributed to its upkeep, it said.
As a result, the siblings forcing the sale “stand to benefit substantially from the significant passage of time and the investment made by their sister,” the court said.
Ultimately, the court ordered the cottage be listed for sale within 90 days, and that the proceeds be shared unequally among the siblings.
The court said it’s up to the siblings to agree on a fair division of the proceeds but left it open for them to return to court if they can’t agree.