I. Introduction
The Ontario Superior Court of Justice’s decision in Drumonde v. Spellay offers important
guidance on the interpretation of testamentary provisions in the context of prolonged estate
administration. More than twenty years after their mother’s passing, siblings became embroiled
in a dispute over a family cottage in Dunchurch, Ontario. The Applicants sought the removal of
their sister as estate trustee and requested an order for the sale of the property under the Partition
Act, R.S.O. 1990. The Respondent, who had lived in and maintained the cottage at her own
expense, resisted the sale, citing a clause in the Will that allowed a sibling to retain full
ownership by paying $5,000, a proposal she had previously made. The court’s analysis focused
on the Will’s wording, including provisions related to joint tenancy, seasonal use, and trustee
discretion, ultimately balancing the testator’s intent with equitable considerations. The result was
an order compelling sale, with adjustments to how the proceeds would be distributed.
II. Terms of the Will and Testamentary Intentions
At the heart of the dispute was the interpretation of the mother’s Last Will and Testament,
which envisioned the family cottage remaining jointly owned and shared by her children
throughout their lifetimes. Clause 3(d)(iii) stated: “the balance of my estate is to be converted
into money, and such money is to be used for the upkeep of my cottage in Dunchurch, Ontario,
for the use of all my children for so long as they live”. 1 Clause 5 further articulated that “it is my
intention that this cottage should eventually be devised to my last surviving child” 2 .
To allow individual children to divest their interest, Clause 4 of the Will provided: “Any
child of mine who does not wish to participate in the use of my cottage in Dunchurch, Ontario,
can receive his or her share of my estate, being the sum of $5,000.00, provided he or she
released the remaining brothers and sisters from any further interest or participation in the said
cottage property”. 3 This same clause expressly limited the use of the cottage, stating: “This
cottage is to be used as a seasonal residence and not as a permanent residence”. 4
Additionally, Clause 3(a) granted the trustee discretion to manage the estate: “To use her
discretion in the realization of my estate, with power to my Trustee to sell any part of my estate at
such time or times, in such manner and upon such terms…, as my Trustee may in her discretion
decide upon”. 5 Clause 6 gave her the authority to fix estate values and declared her decisions
“final and binding on all persons concerned”. 6
Together, these provisions reflected the testator’s intent to preserve the cottage as a
shared seasonal retreat among her children, eventually passing to the last surviving child, while
enabling an orderly opt-out process.
III. Judicial Reasoning and Equitable Relief
Justice Bellows applied the “armchair rule” of testamentary interpretation, requiring
courts to consider the testator’s circumstances at the time of drafting, as established in Ross v.
Canada Trust Company and Trezzi v. Trezzi. 7 She concluded that the Will contemplated a joint
tenancy, not a tenancy in common, such that each sibling’s interest would pass to the surviving
co-owners upon death, with the last living child inheriting the cottage in full. 8
The court held that Clause 4’s $5,000 opt-out was a one-time offer that must have been
exercised shortly after the testator’s death and funded by the estate. As Justice Bellows
explained, “this had to be a one-time opt-out option rather than an ongoing possibility,” since
“the estate has long since run out of funds”. 9 Because Rosalie’s proposed buyout would have
required personal rather than estate funds, it could not be enforced under the terms of the Will. 10
Though the Will prohibited year-round occupancy, the court found that the Respondent’s
permanent residence at the cottage was excusable. Justice Bellows noted that she lived there full-
time due to financial hardship and contributed significantly to its upkeep. Her affidavit detailed
expenses such as annual property taxes, snow removal, hydro bills, and a biodegradable toilet
installation. 11 The court acknowledged that “without her contribution to the property financially
and through physical labour for the past 22 years or so, these things would not have happened
or been as enjoyable”. 12
Accordingly, the court ordered the sale of the cottage within 90 days under the Partition
Act, affirming the Applicants’ right as joint tenants to compel a sale. 13 However, it directed that
the Respondent receive an unequal share of the sale proceeds, recognizing her two decades of
stewardship 14 . If the parties cannot agree on the division, they may return to court for further
direction. 15
VI. Legal Effect of the Will: Ownership Structure and Limits of Testamentary Control
In determining how the cottage should be dealt with under the law, Justice Bellows
closely analyzed the Will’s language and concluded that it created a joint tenancy among the
surviving children, not a tenancy in common. This distinction was crucial. As she explained, the
Will’s structure contemplated that each child would hold a joint interest, and that interest would
“naturally flow to the remaining property owners” upon a sibling’s death. 16 Ultimately, the last
surviving child would inherit the property outright, consistent with the testator’s expressed
intention that “this cottage should eventually be devised to my last surviving child”. 17
Justice Bellows clarified that if the estate had been properly administered in a timely
manner, the property would have been transferred into the names of the surviving children as
joint tenants. 18 This structure also meant that the children of deceased siblings could not inherit a
share in the property, as joint tenancy rights extinguish upon death unless otherwise severed.
With the joint tenancy in place, the court found that the Partition Act, c. P.4 applied. As
such, any one or more joint tenants had the right to force the sale of the property. 19 This gave the
Applicants the legal footing to compel the sale over the Respondent’s objection.
Justice Bellows also addressed the temporal limitation on the opt-out clause in Clause 4
of the Will. She held that the $5,000 buy-out option was intended to be a “one-time option to be
bought out of the cottage property”. 20 The clause was not meant to be exercisable decades later,
particularly once the estate’s funds were depleted. She emphasized that “it cannot remain open
because the Will has not been properly administered and has, therefore, expired”. 21
Consequently, the Respondent’s present-day offer to personally fund the buy-out could not
substitute for the estate’s original obligation, and the opt-out mechanism was no longer available.
Together, these findings established that the siblings' co-ownership rights had crystallized
into a joint tenancy governed by statute, and the delayed administration of the estate could not
revive lapsed testamentary options.
V. Critical Reflections on Judicial Reasoning and Cost Allocation
Despite the Applicants technically succeeding in their primary legal claim by obtaining
an order for sale and recognition of joint tenancy, the judgment includes two unusual and
arguably contentious features.
First, Justice Bellows declined to award costs, directing that each party bear their own
legal fees. This is surprising in light of Rule 57 of the Ontario Rules of Civil Procedure, which
ordinarily follows the principle that “costs follow the event,” meaning the successful party is
presumptively entitled to at least partial indemnity costs. No misconduct was alleged against the
Applicants, nor did the judge find their claim to be unnecessary or excessive. Indeed, they
succeeded on the central issue of property sale and defeated the Respondent’s attempt to retain
full ownership through a buy-out. The court’s silence on why the ordinary rule was departed
from leaves the decision open to criticism for undermining cost recovery rights, especially in
estate litigation where fees can be substantial and family dynamics discourage early settlements.
Second, the court’s recognition of the Respondent’s contributions through an unequal
division of sale proceeds, despite the fact that she resided permanently at the cottage in
contravention of the Will, presents an internal tension in the judgment. The Will explicitly stated
that the cottage was to be a seasonal residence only, and that any child using it as a permanent
home would violate the testator’s intentions. Nevertheless, the Respondent’s residency was
justified by the court based on her limited financial means and the practical reality of her efforts
to preserve the property. While this reasoning reflects equitable sensitivity, it can also be seen as
rewarding non-compliance with testamentary instructions, potentially setting a precedent where
beneficiaries benefit from disregarding Will terms so long as they provide financial or labour-
based contributions.
Moreover, the court’s order to provide the Respondent with an unequal share of the sale
proceeds was made despite no formal application or motion requesting such relief from the
Respondent. The judge awarded this remedy sua sponte, effectively granting significant financial
benefit to a party in violation of the Will without a procedural trigger or evidentiary record from
opposing counsel. This raises concerns about procedural fairness, judicial overreach, and the
potential erosion of adversarial safeguards in estate disputes. It also risks incentivizing passive or
non-compliant litigation strategies if equitable relief can be awarded without it being sought.
This dual recognition of denying costs to successful Applicants while financially
compensating a party whose occupancy contravened the Will, raises broader concerns about the
predictability of testamentary enforcement and the principle of finality in estate planning. It
reflects the court’s increasing willingness to place formal testamentary conditions on a lower
pedestal to real-world equities, even at the expense of legal consistency.
VI. Conclusion
Drumonde v. Spellay affirms the Ontario courts’ pragmatic and equity-oriented approach
to interpreting Wills and distributing estate property. The case offers key insights into the limits
of co-ownership arrangements imposed by Will, the operation of the Partition Act, R.S.O. 1990
in family disputes, and the evolving application of equitable relief in estate contexts. However,
the court’s decision to depart from the ordinary cost rules and its willingness to reward
contravention of testamentary conditions raise important questions about the consistency and
fairness of outcomes in estate litigation.
VII. References
1 Drumonde v. Spellay, 2025 ONSC 3221 at para. 8 [Drumonde]
2 Drumonde, ibid.
3 Drumonde, ibid.
4 Drumonde, ibid.
5 Drumonde, ibid.
6 Drumonde, ibid.
7 Drumonde, ibid, at para 9.
8 Drumonde, ibid, at para 15(a).
9 Drumonde, ibid, at para 19.
10 Drumonde, ibid, at para 20.
11 Drumonde, ibid, at para 25.
12 Drumonde, ibid, at para 27.
13 Drumonde, ibid, at para 28(a).
14 Drumonde, ibid, at para 28(d)
15 Drumonde, ibid, at para 29.
16 Drumonde, ibid, at para 15(a).
17 Drumonde, ibid, at para 8; see also para 15(a).
18 Drumonde, ibid, at para 16.
19 Drumonde, ibid, at para 17.
20 Drumonde, ibid, at para 20.
21 Drumonde, ibid.
Published June 20, 2025 | CO