Canada: Preservation, Patience And Persistence: The Dilemmas Of A Litigator In Estates

Last Updated: October 16 2014
Article by Caroline Abela

In Re Estate of Ireni Traitses,1 Justice David Brown raised the issue of a cost-effective procedure when dealing with a "one house will fight". Quite often, the estate assets that are the subject matter of litigation relate to just that – some de minimis personal property, small bank account balances and a family home. Depending on where the house is, the value of the home can be worth half a million dollars or over a million dollars in value. In this context, where all the value of the estate is in the house, a litigator must decide when it is important or appropriate to seek preservation of the major asset in the estate and how to go about the preservation.

A certificate of pending litigation (or lis pendens) ("CPL") is an often used tool in order to preserve real property and unregistered interests in such property. The test to obtain a CPL is that there must be an interest in land in question and there must be a reasonable claim to that interest in land.2

Although there have been cases that discuss the equitable discretion of a judge on a motion to grant or discharge a CPL, in order for the motion to be granted or the CPL to be maintained, there must be a reasonable claim to the interest in land.3 The judge does exercise his or her discretion in equity and looks at all of the relevant matters between the parties in determining whether or not the certificate should be vacated.4 However, a claim to an interest in land is required.

The threshold in respect of the "interest in land" issue in a motion seeking a CPL is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed. A claim of the merits is not to be conducted.5 The onus is on the party opposing the CPL to demonstrate that there is no triable issue in respect to whether the party seeking the CPL has "a reasonable claim to the interest in the land claimed".6

Therefore, if a party is claiming an interest in an estate and the value of the estate is in a house, litigators must assess the appropriateness of obtaining a CPL in such circumstances. A situation where a mortgage or lien is put on the property or the house is sold, before a judgment is rendered and executed on or before a settlement is obtained, will be a highly undesirable outcome.

The merits of the CPL motion depend on the shape of the claim (for example, is there an articulated claim against the property or a claim against the residue of the estate? Are there any trust claims being made against the property?). Courts will likely grant a CPL in the estate context where allegations are made that a portion of the proceeds of sale of property or portions of the estate was used to buy the real property in question.7 However, where a claim is made against the estate (articulated in general terms) or the residue of the estate, a CPL will not likely be granted.


If a CPL is not available in the circumstances, there are other options to ensure property in an estate is preserved. These options include, but are not limited to:

1. obtain an order for directions setting out that certain property (not necessarily the real property) will be preserved pending a further court order or that it can only be disposed of or dissipated on the consent of all parties;

2. appoint an estate trustee during litigation who will determine when it is appropriate to dissipate assets (for example, to pay taxes) on behalf of the estate. However, this option might not be helpful where fraudulent conduct was involved (i.e. you need to preserve property that is not held in the estate but was an asset of the estate);

3. continue with the executor that was appointed by the will as an estate trustee during litigation but put stringent rules or limits on his or her powers;8

4. appoint a receiver if one of the estate assets is a business;

5. pay or have funds paid into Court;9 and

6. put a caution or notice on title to the property if certain requirements are met.10


1 Re Estate of Irenei Traitses, 2014 ONSC 2102 (SCJ).

2 Todd Family Trust v. Barefoot Science Technologies Inc., 2013 ONSC 523 (Div Crt) at paras 13 and 16. It is not necessarily the case that the party whose instance is requesting the CPL have an interest in land; rather, it must be that an interest in the land be asserted in the proceedings. See Chilian v. Augdome Corp. 1991 CarswellOnt 422 (CA) at para 55 where a claim was made that, if substantiated, would adversely affect the defendant's interest in the land.

3 Ibid, the Court commented that it may be that "arriving at this finding [whether there is a reasonable claim to an interest in land] includes the exercise of discretion, but such discretion is circumscribed by the need to comply with that requirement."

4 Clock Investments Ltd. v. Hardwood Estates Ltd., (1977) 16 OR (2d) 671 (Ont Div Ct) at para 9.

5 Hupka v. Aarts Estate, 2003 CarswellOnt 737 ["Hupka"] at para 79 citing 572383 Ontario Inc. v. Dhunna, [1987] OJ No 1073 (Ont Master).

6 Hupka, supra, at para 50.

7 Jordan v. Jordan, 2013 ONSC 6948 (SCJ) at para 8.

8 Dempster v. Dempster Estate, 2008 CarswellOnt 6878 (Ont SC).

9 This was done in Moskalev v. Fraev Estate, 2012 ONSC 6669 where the plaintiff wanted a CPL vacated as a result of a pending sale of property. The Court only allowed the CPL to be vacated if the fair market value of the property (less fees and mortgage) were paid into Court. See also Leung Estate v. Leung [2004] OJ No. 1417 (SC).

10 This provides limited relief for a short time period. See section 71 of the Land Titles Act, RSO 1990, c L 5.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Caroline Abela
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.