In a recent decision, a court ordered that the estate of a deceased was prohibited from selling property without the consent of the current resident and former partner of the deceased. The court made the decision in light of the COVID-19 pandemic so as to not displace the former partner from her current home during a time of uncertainty.

What Happened?

The partner and the deceased cohabited from 2007 to 2018. They first lived together at the partner’s apartment in Gatineau, Quebec from September 2007 to May 2011 and subsequently in a home owned by the deceased from May 2011 to August 2018 in Ontario. The deceased had purchased the home in 2005 and the title to the property was in the deceased’s name only. The deceased had passed away in August 2018.  The partner had continued to live at the home since that time.

The estate trustee for the deceased’s estate had recently informed the partner that he intended to put the home up for sale.

As a result, the partner, on an urgent basis and without notice to the deceased’s estate, brought a motion in writing for an order for a certificate of pending litigation to be registered on the title to the home in which she continued to reside.

A certificate of pending litigation is a registration or/of a notice or warning that litigation is ongoing as to ownership of a particular piece of land or other real property.

The partner claimed that she had contributed to the equity in the home in the form of financial contributions made to renovation and repair of the home between 2007 and 2018. In addition, since August 2018, the partner said she had been paying the mortgage and other expenses related to the home.

The partner claimed entitlement to an interest in the home on the basis of a constructive trust.


Because the partner had filed the motion without notice to the deceased’s estate, the court first had to determine whether she had established that it was either “impracticable or unnecessary” to serve the estate with the notice of motion.

The court found that the evidence did not support a conclusion that providing the estate trustee with notice of the motion was either “impracticable or unnecessary”. However, the court also tookjudicial notice of the COVID-19 measures in effect and that such measures included a restriction on open houses for residential real estate sales. The court found that such measures created uncertainty for the estate trustee in his efforts to sell the home.

Additionally, the court also found that the COVID-19 pandemic, in and of itself, created uncertainty for the partner should she ultimately be required to find alternate accommodation.  As a result, the court stated:

“It is therefore reasonable to provide [the partner] with a degree of comfort that she will not, without further consideration by the court, find that the Property has been sold and that she is required to obtain alternate accommodation. For that reason, the order made below includes a term precluding the Estate Trustee from agreeing to a closing date for the sale of the Property without either the consent of [the partner] or further order of the court.”

Because the court found that the partner was required to serve the estate with the notice of motion, she wasnotentitled to an order for a certificate of pending litigation at this time.

As a result, the court ordered  that the partner must bring the motion back on notice to the deceased’s estate.

The court further ordered that the deceased’s estate could not, without the consent of the partner or further order of the court, agree upon a closing date for the sale of the home.

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The knowledgeable estate lawyers at Cherkowski Marsden LLP have over 50 years of combined experience helping people in Vernon create Wills designed to protect their families’ futures. Everyone, no matter their stage in life or income bracket, should have a Will to retain control over the administration of their estate. We work with clients with both modest and robust estate planning needs, advising on matters including asset distribution, business considerations, foreign assets and trust considerations. For clients with business assets and those in need of assistance with succession planning, we also offer the benefit of our considerable business law experience. It is impossible to predict all of life’s variables but having an estate plan in place takes a great deal of stress out of the unknown.

 Contact the knowledgeable estate planning lawyers at Cherkowski Marsden LLP in Vernon & Salmon Arm for trusted legal advice and guidance on your estate planning needs, including how best to maximize clarity and minimize financial implications for your estate trustees and heirs. We look forward to collaborating with you to achieve your goals with respect to your interests and the protection of your loved ones. We can be reached online or by phone at 250-308-0338 (Vernon office) or 250-803-9171 (Salmon Arm office).