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Part Performance Trumps Deceased’s Will

An interesting recent case gives modern consideration to the long-standing equitable concepts of “part performance” and “proprietary estoppel,” in the context of deceased who reneged on a promise he made while still alive.

Gus had been in a 40-year common-law relationship with a woman named Victoria. Although they had no children together, Victoria had two grandsons named Mark and Paul (“the boys”) that Gus regarded and treated as his own. The boys spent a great deal of time with Gus – whom they called “Papa” – both as children and as they got older. For all intents and purposes, they enjoyed a close, grandfather/grandson-type relationship with each other.

In this context, at a breakfast meeting held in 1985 Gus promised the boys that in his Will he would leave them the farm and certain cottage properties, along with $350,000 each, provided that for the rest of Gus’ life they would be available to help him with the farm and cottage – without question and without pay – whenever they were asked to. At this point, the boys were 17 and 13 years old, respectively.

The boys agreed. Over the subsequent years they continuously fulfilled this obligation, often at the expense of their personal relationships and own life priorities. However, when Gus died in 2009 he left the boys only a small amount of money; the residue of Gus’ estate was bequeathed to his five siblings in Greece pursuant to a Will he made in 2003.

The boys accordingly launched an action against Gus’ estate for an order mandating that Gus’ promise to them be fulfilled, i.e. that the farm and cottage should be conveyed to them, and that they be awarded $350,000 apiece.

The court allowed the boys’ action, in part. Evaluating all the evidence (which included a prior revoked Will from 2001 in which Gus had left half of the farm and cottage together with $500,000 to each of the boys) the court found there was ample evidence to corroborate the boys’ claims.

Gus’ promise at the breakfast meeting – while entirely verbal – was nonetheless sufficient in law to entitle the boys to the property in light of the boys’ “part performance” of their end of the deal. That part performance effectively circumvented the requirements of the Statute of Frauds, which normally requires that any contracts in connection with land must be in writing and signed by the parties involved. There was also evidence sufficient to give rise to the 150-year old legal concept of “proprietary estoppel”: as applied here, this equitable remedy – which is founded on the concepts of acquiescence and encouragement – redresses the fact that: 1) Gus encouraged the boys’ behaviour relating to maintaining the farm and cottage, 2) the boys relied on Gus’ promise, to their detriment, and 3) Gus had engaged in unconscionable conduct toward them over the course of many years.

Gus’ estate was accordingly ordered to convey the farm and cottage properties to the boys equally. However, as there was insufficient evidence in connection with their claim for $350,000 each, this aspect of the grandsons’ claim was disallowed. See Cowderoy v. Sorkos, 2012 (ONSC).