Thompson’s application was dismissed. It requires the application of a legal standard to the facts as found by the trial judge. Other possible modes of severance include bankruptcy, partition or an order made under matrimonial property legislation: Williams v. Hensman (1861), 70 E.R. 862 (Eng. If you remarry after the death of a spouse and do not update your Will, your estate may become subject to “sideways disinheritance’. I agree with you that based on the facts of your case there would be no severance of joint tenancy as the will takes effect after death and as, such would not be able to severance the joint tenancy based on established principle. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of. Thompson was not aware that Elliott had executed any of the above documents until after Elliott’s death. In order to remove the right of survivorship, a beneficial joint tenant must sever the tenancy prior to death. In effect, the exception embedded within the statutory provision preserved the common law rule. where one or more registered proprietors holding as joint tenants, but fewer than all the registered proprietors, transfers to themselves in order to hold as tenants in common in shares equivalent to the interest held as joint tenants; the tenancy and shares held between other registered proprietors not holding as joint tenants with the … As in, , it is thus unnecessary to analyse the full reach and meaning of. Nevertheless, at trial Mr. Zeligs argued that there was a rule 3 severance based on the parties’ course of conduct and the judge considered both rules 1 and 3, noting the diverging authorities. As in Farley v. Pearlson, 2003 BCCA 37 (CanLII), it is thus unnecessary to analyse the full reach and meaning of Williams with respect to rules 2 and 3. In addition, s. 20 of the LTA provides that an instrument purporting to transfer an interest in land does not pass a legal or equitable interest unless the instrument is registered, except as against the person making the instrument. Rather, in my view, on the facts of, Southin J.A. I also agree with Wright J. in Tessier that the parties’ conduct may provide an evidentiary basis from which agreement can be inferred (at para. 45 St. Clair Ave. West, Suite 600 Toronto, Ontario, M4V 1K9 Tel: (416) 925-7400 Fax: (416) 925-7464, Thompson v Elliott Estate, 2020 ONSC 1004 provides that a mortgage operates to charge the mortgagor’s estate or interest in land. In these circumstances, I think it prudent to comment on certain factors that may contribute to the controversy and suggest a possible route to its resolution. In consequence, the four unities are not broken when a mortgage is granted and a joint tenancy is not severed: Ziff at 344. However, to the extent she interpreted rule 3 as a species of estoppel requiring proof of detrimental reliance, Winkler C.J.O disagreed in Hansen Estate, observing that a course of dealing sufficient to sever requires only that the co-owners knew of the other’s position and mutually treated their interests as several (at paras. In consequence, each affected co-owner becomes entitled to a distinct share rather than an undivided interest in the whole: Bergen at para. If a co-owner no longer wishes to hold the property as joint tenants, they can sever the joint tenancy. Bar Rev 1 at 2, 38-41. Thompson v Elliott Estate[1] is a recent case in which the court held that a severance of joint tenancy, which had become a “zombie transfer” due to a lawyer’s errors, was valid nonetheless. 41. considered it just to permit the respondent to assert survivorship rights, given the matrimonial context and the parties’ conduct, which, unlike the conduct at issue in. of what is to happen to their property after death, and to consider the details of property devolution. A “zombie transfer” is a land transfer that is registered after the transferor’s death, as if the transferor were still alive. If you require communication supports, please contact us by email at or by telephone at 416-355-3253 or 416-925-7400. The law permits joint tenancy in personal property no less than in realty, thus a joint tenancy may carry on following a land sale by all joint owners because joint ownership may continue in relation to the sale proceeds: Allingham v. Allingham, [1932] VLR 469; Walker at para. Variation of Will or intestacy after death. this form may be used only for a severance of a joint tenancy, i.e. opined that Vice-Chancellor Wood was postulating a species of estoppel in rule 3 and disagreed with the trial judge’s view that severance requires either alienation or agreement, preferring to say it requires “… either alienation or agreement or facts which preclude one of the parties from asserting that there was no agreement” (199). Whether a transferor’s actions constitute delivery is a question of fact, with the onus on the party seeking to uphold the purported severance? If an owner is happy for their interest in a property held as joint tenants to pass to the surviving owners equally on their death, there would be no need to s… In other words, the parties’ course of dealings is sometimes analysed under rule 3 as evidence of facts from which an agreement to sever is inferred rather than as a separate method of severance: see, for example. After a joint tenant dies, however, severance is no longer possible because death extinguishes the joint interest. at para. 63; A.J. [54]        Further, I see no reason to limit Southin J.A.’s rule 3 requirement of “facts which preclude one of the parties from asserting that there was no agreement” to cases involving detrimental reliance, nor do I think she necessarily did so. As such, the only way in which it can be dealt with unilaterally is for a joint tenant to act upon their notional share. The distinction is important because of the right of survivorship which attaches to a joint tenancy but not to tenants in common. . ♦ Change joint ownership of land post-death – a deed of variation can be used to change the way jointly owned property is inherited. , the transferring joint tenant changed the character of the other into a tenancy in common by operation of law. Accordingly, a joint tenant may sever a joint tenancy, with or without the consent or knowledge of the other joint tenant(s) and subject to contrary statutory provision. Stonehouse v. British Columbia (Attorney General), the Supreme Court of Canada considered a predecessor provision similar to, . It is not necessary for both parties to agree to the severance; as long as one serves notice of severance on the other the joint tenancy is severed. In my view, this approach blurs the line between rules 2 and 3. that rule 3 is a conceptually distinct method of severance which does not encompass implied agreement. Please note: Our Firm does not accept retainers via e-mail; and sending an e-mail to our Firm does not constitute a retainer. For example, if A, B and C are joint tenants a severance of A’s interest will convert it into a tenancy in common, however, B and C will continue to be joint tenants with rights of survivorship between themselves: McClean at 6; Law Reform Commission of British Columbia at 5. Depending on the circumstances, this may be true regardless of whether detrimental reliance can be shown: Ascertaining whether a joint tenancy has been severed is a factual question, often determined on the basis of reasonable inference(s). Rules 2 and 3 concern the joint tenants’ common intention and operate in equity. 63; A.J. MacLeod-Beliveau J., helpfully noted that instead of registering the transfer after Elliott’s death, and making inaccurate “law statements” in the process, the lawyer should have: [brought] an application in the Superior Court of Ontario requesting a certificate of pending litigation and a declaration of an interest in land and for a vesting order under s. 100 of the Courts of Justice Act, setting out all the material facts in support of the inadvertence and the circumstances as to the delivery of the transfer, in an application to be determined by the court. In joint tenancies composed of more than two persons, a blend of interests may be present. At trial the claimants contended that severance had come about by, firstly, a course of dealing indicating that the former spouses’ interests were being treated as a tenancy in common rather than as a joint tenancy and, secondly, by written notice pursuant to s 36(2) of the Law of Property Act 1925 (LPA 1925). 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