Max Wayne Cowper-Smith v. Gloria Lynn Morgan and Gloria Lynn Morgan Executor of the Will of the Late Elizabeth Flora Cowper-Smith, Deceased

(British Columbia) (Civil) (By Leave)


Successions - Wills, Property.


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Wills and estates - Wills - Beneficiaries - Undue influence - Property - Proprietary estoppel - Elderly testatrix executing will dividing estate into equal shares between her three children - Testatrix effecting certain inter vivos transfers of her bulk of her property in favour of respondent after receiving legal advice- Applicant residing with and caring for testatrix in years prior to her death believing he would be entitled to one third of estate and that respondent would permit him to purchase her interest in testatrix’s home - After testatrix’s death, respondent maintaining assets were hers absolutely- Siblings seeking declaration that respondent held the assets in trust for estate to be equally divided - What is the proper test for proprietary estoppel in Canada? - Should promise-based proprietary estoppel include claims where, at the time the promise was made, the promisor’s interest in the property was a contingent future interest?

The late Elizabeth Cowper-Smith, who died in 2010 at the age of 86, was survived by her two sons, Max and Nathan and her daughter, Gloria. Her two major assets were her residence in Victoria and her investments. She relied upon Gloria and her brother-in-law to manage her financial affairs. In 2001, after receiving legal advice, Elizabeth executed a title transfer and Declaration of Trust, effectively providing that her home and investments would became Gloria’s property “absolutely” upon her death, leaving her estate devoid of any significant assets. In 2002, Elizabeth executed a will, leaving one-third of her estate to each of her children. In 2007, Gloria convinced Max to leave his home and life in England to care for Elizabeth on a full-time basis in her home. Gloria in turn, agreed that she would allow Max to purchase her one third interest in the house after Elizabeth’s death. Upon learning that Gloria was a joint owner on title, Max and Nathan expressed concerns about the property transfer but were reassured by Gloria that this was done simply to provide her with greater ease in the management of their mother’s affairs and eventually her estate. After Elizabeth’s death, however, Gloria maintained that the residence and investments were hers absolutely. Max and Nathan brought an action against Gloria for declarations that the assets held by Gloria were subject to a trust in favour of the estate. Max also sought a declaration that on the basis of proprietary estoppel, he was entitled to purchase Gloria’s interest in the house.