Felske Estate, Re, (2007) 434 A.R. 323 (QB)

• Judge: Sirrs, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 25, 2007
• Citations: (2007), 434 A.R. 323 (QB);2007 ABQB 682

Felske Estate, Re (2007), 434 A.R. 323 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.013

Estate Name: Doris D. Felske

The Public Trustee for the Province of Alberta, Trustee of the Estate of William Felske (applicant/plaintiff) v. Arnold Donszelmann, Personal Representative of the Estate of Doris D. Felske (respondent/defendant)

(ES12 32910; 2007 ABQB 682)

Indexed As: Felske Estate, Re

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Sirrs, J.

November 14, 2007.

Summary:

An elderly couple owned a farm (two parcels) jointly. The husband had suffered from a serious mental illness for 10 years and lived in an assisted-living facility. The wife executed a Will and a Transfer of Land on March 24, 2007. The Will left half of the family farm to Donszelman, her friend and neighbour. The Will provided in part that it was the wife's intention to sever the joint tenancy with her husband for the purpose of giving effect to the disposition. Schumacher, Donszelman's lawyer, prepared the documents. Schumacher contacted the Public Trustee's office on March 26, 2007 and verbally advised that the wife intended to transfer the land to Donszelman. The Public Trustee was not contacted by the wife or anyone advising that they acted for her before she died on April 25, 2007. After the wife's death, the Public Trustee sought to have both parcels transferred to the husband as the sole surviving joint tenant. A new title was issued to the husband for both parcels showing him as the sole registered owner. Donszelman registered caveats against both parcels. The Public Trustee and Donszelman each brought applications. At issue on this application was whether the wife's actions were sufficient to sever the joint tenancy before her death, in particular: 1) could one joint tenant unilaterally sever a joint tenancy without complying with the notice requirements set out in s. 65(c) of the Land Titles Act and 2) had Donszelman satisfied his onus to demonstrate that the joint tenancy was severed before the wife died?

The Alberta Court of Queen's Bench held that the joint tenancy was not severed before the wife's death. Donszelman had not established that 1) the execution of the Transfer was a sufficient act to sever the joint tenancy; 2) the wife intended the transfer to be an inter vivos gift; or alternatively, 3) there was sufficient delivery for a completed gift. While s. 65(c) of the Land Titles Act did not require registration to sever a joint tenancy, where the alleged transfer involved a gift of land, the registration requirements shaped what the donor had to do before a completed gift would be found.

Gifts - Topic 755

Gifts inter vivos - Elements of valid transfer - Delivery - General - [See first Real Property - Topic 3891 ].

Gifts - Topic 953

Gifts inter vivos - Evidence and proof - Donor's intention - [See first Real Property - Topic 3891 ].

Real Property - Topic 3881

Joint estates - Severance of joint tenancies - General - The Alberta Court of Queen's Bench stated that "The rules of common law severance continue to operate in a land registry system, if they are not contrary to a legislative enactment." - See paragraph 34.

Real Property - Topic 3882

Joint estates - Severance of joint tenancies - Jurisdiction - [See Real Property - Topic 3881 ].

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - The common law did not permit a transfer of property to oneself - However, s. 12(3) of the Law of Property Act stated that a transfer by a joint tenant to himself as a tenant in common severed the joint tenancy on registration of the transfer under the Land Titles Act (LTA) - Section 65 of the LTA stated that "the Registrar shall not register a Transfer of Land that has the effect of severing a joint tenancy unless ... " - The Alberta Court of Queen's Bench stated that "The language employed in LTA s. 65 does not suggest that severance can only occur with registration. ... Therefore in Alberta, if a transfer does not fall within the ambit of the Law of Property Act s. 12(3), it is possible that joint tenancy can be severed without registration." - See paragraphs 33 to 42.

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - Section 65(c) of the Land Titles Act provided that "The Registrar shall not register a transfer that has the effect of severing a joint tenancy unless: (c) the Registrar is provided with evidence satisfactory to the Registrar that all the joint tenants who have not executed the transfer or given their written consent to the transfer have by: (i) personal service, or (ii) substitutional service pursuant to a court order, been given written notice of the intention to register the transfer." - The Alberta Court of Queen's Bench stated that "An incomplete gift will not sever a joint tenancy. Land Titles Act, s. 65, sets out a simple procedure whereby a joint tenancy [sic] can unilaterally sever the joint tenancy. Where it is alleged that the transferor has made an inter vivos gift of land to a third party, the notice requirements described in s. 65 define what the transferor needs to do, to do all he can to complete the gift." - However,"there may exist factual situations where a joint tenant or someone else with the consent of the transferor joint tenant serves notice of severance upon the other joint tenant but such notice is not sufficient to meet the stringent requirements of Land Titles to permit registration, but nevertheless complies with the essential requirements of a notice to sever a joint tenancy. If such exceptional circumstances exist, then a joint tenancy can be severed notwithstanding lack of registration at Land Titles." - See paragraphs 43 and 85.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - An elderly couple owned a farm (two parcels) jointly - The husband had suffered from a serious mental illness for 10 years and lived in an assisted-living facility - The wife executed a Will and a Transfer of Land on March 24, 2007 - The Will left half of the family farm to Donszelman, her friend and neighbour - The Will provided in part that it was the wife's intention to sever the joint tenancy with her husband for the purpose of giving effect to the disposition - Schumacher, Donszelman's lawyer, prepared the documents - Schumacher contacted the Public Trustee's office on March 26, 2007 and verbally advised that the wife intended to transfer the land to Donszelman - The Public Trustee was not contacted by the wife or anyone advising that they acted for her before she died on April 25, 2007 - The Alberta Court of Queen's Bench held that the joint tenancy was not severed before the wife's death - The Will, being a testamentary document, could not sever the joint tenancy, as the principle of survivorship applied, leaving nothing to devise - Donszelman had not established that 1) the execution of the Transfer was a sufficient act to sever the joint tenancy; 2) the wife intended the transfer to be an inter vivos gift; or alternatively, 3) there was sufficient delivery for a completed gift - While s. 65(c) of the Land Titles Act did not require registration to sever a joint tenancy, where the alleged transfer involved a gift of land, the registration requirements shaped what the donor had to do before a completed gift would be found - See paragraphs 43 to 91.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - [See second Real Property - Topic 3890 ].

Cases Noticed:

Havlik v. Whitehouse et al. (2000), 262 A.R. 88; 79 Alta. L.R.(3d) 369; 34 R.P.R.(3d) 128; 2000 ABQB 242, aff'd. [2001] 1 W.W.R. 270; 96 Alta. L.R.(3d) 209; 299 A.R. 162; 2001 ABCA 278, dist. [para. 27].

Havlik v. Havlik Estate - see Havlik v. Whitehouse et al.

Sorensen Estate v. Sorensen, [1977] 2 W.W.R. 438; 3 A.R. 8; 90 D.L.R.(3d) 26 (C.A.), leave to appeal granted (1977), 18 N.R. 358; 6 A.R. 540 (S.C.C.), appeal discontinued [1979] 1 S.C.R. XIII, refd to. [para. 27].

Stonehouse v. British Columbia (Attorney General), [1962] S.C.R. 103; 37 W.W.R. 62; 31 D.L.R.(2d) 118, refd to. [para. 27].

Warnke v. Skrobek (2000), 265 A.R. 71; 89 Alta L.R.(3d) 128; 2000 ABQB 340 (Master), dist. [para. 27].

Burgess v. Rawnsley, [1975] 3 All E.R. 142 (C.A.), refd to. [para. 33].

Williams v. Hensman (1861), 70 E.R. 867 (V.C.), refd to. [para. 33].

Dyck v. Shingles Estate (1984), 54 A.R. 382; 17 E.T.R. 54 (C.A.), refd to. [para. 53].

Public Trustee v. Mee, [1972] 2 W.W.R. 424 (B.C.C.A.), refd to. [para. 59].

MacLeod v. Montgomery Estate, [1980] 2 W.W.R. 303; 20 A.R. 350; 108 D.L.R.(3d) 424 (C.A.), appld. [para. 79].

Statutes Noticed:

Land Titles Act, R.S.A. 2000, c. L-4, sect. 65(c) [para. 32].

Law of Property Act, R.S.A. 2000, c. L-7, sect. 12(3) [para. 39].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (4th Ed. 2000) (Looseleaf), §§ 1.1 to 1.4, 1.7 [para. 54].

Ziff, Bruce H., Principles of Property Law (4th Ed. 2006), pp. 141 [para. 55]; 143 [para. 78].

Counsel:

Jayne Janzen, Office of the Public Trustee, for the applicant;

Sheila Schumacher (Schumacher & Associates), for the respondent.

This application was heard on September 25, 2007, by Sirrs, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following decision at Red Deer, Alberta, on November 14, 2007.