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INTERESTS IN LAND - Joint estates - Unilateral transfer of interest inter vivos

Friday, January 18, 2019 @ 8:51 AM  


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Appeal by the defendants, Gordon and Vivian Midtdal, from a judgment declaring the plaintiff, Melva Pohl, the sole owner of disputed lands. The respondent was Vivian's child from a previous marriage. Vivian married Gordon, a farmer with six quarter sections of land, all of which Gordon transferred to himself and Vivian as joint tenants. In 2004, the appellants added the respondent as a joint tenant on title to their home quarter. In 2012, after Vivian entered long-term care, Gordon's relationship with the respondent deteriorated. Gordon's action claiming a resulting trust in the respondent's interest was dismissed. In 2015, Gordon purported to sever the joint tenancy by transferring Vivian's interest to himself. The respondent sued. Vivian died in 2016 and Gordon passed in 2017. The trial judge awarded the respondent a declaration of sole ownership in the home quarter lands. Gordon and Vivian, through their representatives, appealed.

HELD: Appeal dismissed. The appellants incorrectly framed the issue on appeal as whether a joint tenancy could be severed. Instead, the decision under appeal determined that the appellants had irrevocably gifted the respondent a right of survivorship, and thus relinquished their right to sever the joint tenancy. It was beyond dispute that a common law joint tenant could contract out of the presumptive right to sever a joint tenancy. It was illogical to permit contracting out of that statutory right while denying the ability to relinquish the same right by way of a gift. No basis for appellate intervention was established.

Pohl v. Midtdal, [2018] A.J. No. 1423, Alberta Court of Appeal, S.L. Martin, J. Watson and M.G. Crighton JJ.A., November 30, 2018. Digest No. TLD-January142019011