In Anderson v Anderson 2010 BCSC 911, the deceased prior to his death transferred his interest in a cottage to his second wife for one dollar and other good and valuable consideration.

 

The plaintiffs were the deceased’s children from his first marriage. For several years following the deceased’s death, the plaintiffs and their families continue to enjoy access to the recreational property.

 

The defendants second wife however plan to sell the cottage, and the plaintiffs commenced court action for a declaration that the defendant held the property in trust for the plaintiffs, or for relief based on the equitable doctrines of promissory estoppel or proprietary estoppel.

 

The action was dismissed as the court found that the deceased intended to make a gift of the cottage to his spouse, and that she did not hold the property on any conditions of trust.

 

disinherited.com has previously blogged on the issue of proprietary estoppel, but not promissory estoppel.

 

The following is a good excerpt of the law on promissory estoppel:

 

Promissory Estoppel

 

198 As a final point, I address the plaintiff’s claim based on promissory estoppel. Although some other jurisdictions have relaxed the restriction, the law in Canada is that promissory estoppel can operate only as a shield and not as a sword. In other words, promissory estoppel cannot create a new cause of action where none existed before: Romfo v. 1216393 Ontario Inc., 2007 BCSC 1375(B.C. S.C.); and Halsbury’s Laws of Canada, 1st ed., vol. Contracts (Markham, Ont.: LexisNexis, 2008) at 233.

 

199 In view of my findings that the plaintiffs have not established any actionable claim against the defendant, the plaintiffs’ claim must fail.

 

200 Moreover the Supreme Court of Canada in Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50(S.C.C.) at 57 stated that a party who wishes to invoke the doctrine of promissory estoppel must establish:

 

1) That the other party by words or conduct made a promise that was intended to affect the parties’ legal relationship; and

 

2) That, in reliance on the promise, the party has acted or in some way changed his or her position.

 

201 The promise must have been unambiguous and precise; it must have been intended to have a “binding effect”: M. (N.) v. A. (A.T.), 2003 BCCA 297(B.C. C.A.) at para. 19.