severance of joint tenancy after death
In joint tenancies composed of more than two persons, a blend of interests may be present. 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 http://canlii.ca/t/j5rnj.  Severance is typically effected in one of three ways: by one person’s acting unilaterally upon his or her own share so as to destroy the four unities (for example, by selling it); by mutual agreement (for example, by written contract); or by “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common” (for example, by conduct which demonstrates all tenants mutually dealt with their interests as several). Elliott’s estate trustees provided sufficient evidence of delivery, such that the joint tenancy was severed. Accordingly, on appeal the standard of palpable and overriding error applies to the judge’s finding that a severance has been effected: Fuller at paras. On the question of severance of a joint tenancy, His Honour noted as follows (at paragraphs 63 and following): It is clear that a joint tenancy may be severed by agreement or by conduct. joint owners because joint ownership may continue in relation to the sale proceeds: at para. In consequence, the four unities are not broken when a mortgage is granted and a joint tenancy is not severed: Ziff at 344. Where it would be unjust to permit parties to assert survivorship rights because of their conduct, equity intervenes to prevent them from doing so: is the usual starting point in a severance analysis, although some jurists and commentators disagree on its meaning. 11-12; Ziff at 345. 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). MacLeod-Beliveau J., rejected Thompson’s argument that the severance of joint tenancy could only take effect when the transfer was registered. Any confidential information will be deleted immediately by our Firm. It requires the application of a legal standard to the facts as found by the trial judge. As a matter of law, any such act automatically severs a joint tenancy: Bergen at para. Rather, in my view, on the facts of, Southin J.A. The Land Registry Office generally rejects these transfers. A severance of joint tenancy is a fairly simple procedure and is most commonly carried out when a married couple divorces. ); Tessier Estate v. Tessier, 2001 SKQB 399 (CanLII) at para. Exch.)] 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 British Columbia, s. 231 of the LTA provides that a mortgage operates to charge the mortgagor’s estate or interest in land. As such, the only way in which it can be dealt with unilaterally is for a joint tenant to act upon their notional share. As in, , it is thus unnecessary to analyse the full reach and meaning of. Representation of Persons Under Disability, Estate and Trust Planning & Administration Services. In my view, this approach blurs the line between rules 2 and 3. Thompson then commenced an application to determine his entitlement to the proceeds of the sale. 41. For example, it is possible to convert land into money or vice versa without necessarily severing the joint tenancy. This could be done by simply sending the Notice of Severance to the other party in the post and asking that they sign and date the notice themselves and return it. 39; Ziff at 345. 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