April 13, 2012
When seniors are considering the sale or transfer of the family home, get the decision in writing so that there is no misunderstanding or hard feelings later.SHUTTERSTOCK PHOTO ILLUSTRATION
When it comes to estate planning, parents and grandparents often assume everyone knows what they want and will abide by their wishes when they die. But as a recent court case shows, it’s vital to put it in writing to avoid costly disputes later.
In 2004, Guiseppina Gabrielle convinced her mother to sell her home and move in with Gabrielle and her husband on Sylvadene Parkway in Vaughan. Gabrielle’s mother, Mariannina Pulla, then 88, went on to sell her home and moved in with her daughter on the understanding that she could live there for the rest of her life. Nothing was put in writing.
In 2009, Guiseppina died. She was predeceased by her husband. Shortly before her death, presumably for estate planning purposes, Guiseppina transferred title of the house to her three children. No mention was made of their grandmother’s right to live there in perpetuity.
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The children could not agree on what to do with the house, whether their grandmother should be allowed to remain there, or whether the house should be sold and other arrangements made for her.
The daughter, Mary Spadafore, wanted to sell the house and divide the proceeds equally with her brothers, Tony and Frank Gabrielle. Mary also wanted to have her grandmother come and live with her. But Mariannina refused, saying she wanted to remain in the house on Sylvadene Parkway as agreed.
The dispute ended up in court. Mary asked a judge to evict Mariannina and order the home sold. Mariannina argued she had the right to remain there even though she had nothing in writing to support her claim.
In the Ontario Superior Court of Justice, Judge Katherine Corrick ruled against evicting Mariannina. In her April 2011 judgment she said:
“Mary, Frank and Tony were in effect gifted a home that bore the burden of their parents’ promise to their grandmother,” he wrote. “They (knew of) the arrangement between their parents and grandmother. They further allowed their grandmother to reside in the home, pursuant to the agreement, for years. To allow a sale that would effectively evict Ms. Pulla against her will would, in my view, be unconscionable.”
Ultimately, this case led to unnecessary legal costs and even more family grief because the arrangement was not made clear.
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When seniors are considering the sale or transfer of the family home, the decision should not be made quickly and, more importantly, whatever decision is made, get it in writing so that there is no misunderstanding or hard feelings later. If a dispute does arise, try to find a way to settle differences amicably, perhaps using a mediator, to avoid the price and unwanted publicity of legal proceedings.
Mark Weisleder is a real estate lawyer. Email Mark at firstname.lastname@example.org.