Mar 18, 2014

Summary of Roby Estate v. Buley

Roby Estate v. Buley, 1989 CanLII 1464 (NS SC)
The plaintiffs claimed ownership or an interest in a property as executors of the estate of their sister, who was the defendant's wife. The defendant and his wife were joint tenants of a property purchased primarily with the wife's money. The defendant had personally renovated the property thereby increasing its value significantly. Shortly before the wife died, she discovered that the defendant was having an affair and the defendant moved out. The wife asked the defendant not to leave on several occasions. The defendant continued to use the home when the wife was not in to teach music lessons and the parties discussed reconciliation and once discussed a division of their assets.For the defendant, (1) that there was neither a constructive trust, nor a resulting trust, since each spouse had contributed to the acquisition and the improvements of the property what he/she was best able to contribute, and both contributions were substantial; and (2) there was no severance of the joint tenancy prior to the wife's death as (a) neither party had acted to commence a partition action or done any other act of severance, (b) there was no mutual agreement to sever, and (c) there was no course of dealings sufficient to reveal a common intention to sever the joint tenancy. Although the spouses had once discussed a division of the assets, the evidence clearly showed that the wife had hoped for a reconciliation and that there were no steps taken to convert the property from a joint tenancy to a tenancy-in-common.