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INTERESTS IN LAND - Unilateral transfer of interest inter vivos

Tuesday, September 03, 2019 @ 10:18 AM  


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Appeal by Roy from a decision declaring a quit claim deed valid and finding that the appellant only owned a 50 per cent interest in the property. The appellant’s mother and the appellant owned the mother’s home as joint tenants. The home was the mother’s principal asset. The mother then quit claimed the property to herself and the appellant, reciting her intention of severing the joint tenancy and making them both tenants in common. The lawyer who drafted the mother’s will testified that the mother intended that her 50 per cent interest in her home would pass through her will to her other daughter.

HELD: Appeal allowed in part. The mother’s deed to herself and her joint tenant, the appellant, was effective to terminate the joint tenancy and create a tenancy in common with the mother retaining a 25 per cent interest in her home. The appellant’s interest thus increased to 75 per cent. When mother deeded her home held in joint tenancy with the appellant to herself and the appellant, she could only act upon her half interest, not the appellant’s.

Roy v. Cashen Estate, [2019] N.S.J. No. 306, Nova Scotia Court of Appeal, P. Bryson, J.W.S. Saunders and M.J. Hamilton JJ.A., July 18, 2019. Digest No. TLD-September22019003