In July, 2014, Amanda Winters
posted on our blog about joint tenancies. She noted some
of the difficulties that can arise in using joint tenancies as an
estate planning tool. At our offices, we have noticed that
issues with joint tenancies are increasingly arising in estate
files, often leading to contentious litigation.
On September 16, 2014, the British Columbia Court of Appeal
decided a new case about a father transferring his property into
joint tenancy with his son. The case, Lorintt v.
Boda, is reported here.
In Lorintt, dad owned a piece of real estate. In
2000, dad transferred the property into joint tenancy with himself
and his only child (son). After dad died, the Executor of
dad's estate sought a declaration that son held the property in
trust for dad's estate. The trial judge dismissed the
claim, holding that dad intended to gift the property to son, and
that the presumption of resulting trust was rebutted. The
Court of Appeal dismissed the appeal.
The facts of this case are curious, as dad had provided some
evidence during his lifetime to indicate that he did not intend son
to receive the property upon dad's death. Here is a brief
summary of the facts:
In February 2000, dad attended at his lawyer's office with
son. Dad signed a Form A transfer document, to transfer the
property into joint tenancy with son. The Form A was
registered with the Land Title Office, and the property transferred
into joint names with dad and son.
Within 2 weeks, dad had a falling out with the son. Dad
went back to the lawyer's office and asked to transfer the
property back into dad's name. The lawyer advised that
both dad and son had to sign a new Form A transfer document, to
transfer the property back to dad. Nothing more seemed to
Dad and son did not talk between 2000 – 2004.
In early 2004, dad had some health troubles. The Public
Guardian and Trustee (PGT) was appointed to act as dad's
Later in 2004, dad was not happy with the PGT acting as his
committee. Dad asked son to become the committee. Son
applied to become dad's committee, and the PGT did not oppose
son's appointment. Son was granted committeeship over
In 2006, dad and son had a falling out. Dad hired a new
lawyer, seeking to cancel the son's committeeship, to make a
new Will and to sever the joint tenancy.
The new lawyer retained a doctor to assess dad's mental
capacity. The doctor gave dad a passing test for testamentary
capacity. However, the doctor noted that dad thought that son
had stolen dad's things, and that dad lacked some insight and
judgment. Dad made a new Will, leaving nothing to son.
Dad brought an application to have son removed as committee,
and to have a friend appointed as dad's committee instead.
As part of the committeeship application, dad swore an
affidavit that he never intended for son to get the beneficial
interest in property. Dad swore that son had manipulated dad
into executing the transfer. Dad further swore that he
didn't understand the document the original lawyer had prepared
to transfer the property, and that dad would not have signed the
Form A transfer document if dad had properly understood the effect
of the document.
In 2006, the Court removed son as committee. The Court
declined to appoint the friend as committee, and instead appointed
the PGT as committee.
In 2008, dad died.
A few months after dad's death, son obtained Letters of
Administration, because a Will was not found.
Sometime later, a friend of dad's found the Will. The
friend applied and was granted probate, and the Letters of
Administration were cancelled.
The friend then brought the application to try to get the
property back into the Estate.
The trial judge found that dad was aware and consenting to the
property transfer when it was done. The trial judge found
that dad's evidence from 2006 was ambiguous or wrong, perhaps
because dad had become incapable or was suffering from
The Court of Appeal confirmed that gift was "complete"
once the Form A transfer document was registered. The right
of survivorship vested when the gift was made (para. 85).
This case emphasizes that the intention of the transferor is the
critical factor. The intention of the transferor will be
determined on a case-by-case basis, depending on the particular
facts of the situation.
Curiously, the case proceeded by summary trial on
affidavits. There was no cross examination on the
This case highlights the impact of transferring a property into
joint tenancy with another person. Once the transfer is
complete, the gift has vested and cannot easily be revoked.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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