Havlik v. Whitehouse et al., (2000) 262 A.R. 88 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 02, 2000
• Citations: (2000), 262 A.R. 88 (QB);2000 ABQB 242

Havlik v. Whitehouse (2000), 262 A.R. 88 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AP.091

In The Matter Of The Law of Property Act, R.S.A. 1980, c. L-8, and Amendments Thereto

And In The Matter Of The Land Titles Act, R.S.A. 1980, c. L-5, and Amendments Thereto

Trudy Lea Havlik (applicant) v. Cathy Lynn Whitehouse and Dale Storvik and Patrick Ilg, Executors For The Estate of Edward Albert Havlik (respondents)

(9912-000850; 2000 ABQB 242)

Indexed As: Havlik v. Whitehouse et al.

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Johnstone, J.

April 14, 2000.

Summary:

The deceased and Whitehouse owned a cottage property as joint tenants. The de­ceased's will left his interest in the cottage property to his wife, unless the joint tenancy had not been severed, in which case the property would be owned by Whitehouse as the surviving joint tenant. Before his death, the deceased had advised Whitehouse that he wished to sever the joint tenancy. He had also executed a transfer of the property to himself and Whitehouse as tenants in com­mon and had advised Whitehouse that he would be applying to the court to sever the joint tenancy. The deceased's wife applied for a declaration that the joint tenancy had been severed.

The Alberta Court of Queen's Bench dismissed the application.

Evidence - Topic 3625

Documentary evidence - Private documents - Letters written without prejudice - Gen­eral - The Alberta Court of Queen's Bench held that a "without prejudice" letter was privileged where a litigious dispute was in contemplation when it was sent, the com­munication was made with the intention that it was not to be disclosed in the event that negotiations failed and the purpose of the communication was to attempt to effect a settlement - See paragraphs 42 to 51.

Practice - Topic 217

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Persons having interest in an estate - [See Practice - Topic 229 ].

Practice - Topic 222

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Persons interested under writ­ten instrument (will, deed, etc.) - [See Prac­tice - Topic 229 ].

Practice - Topic 229

Persons who can sue and be sued - In­dividuals and corporations - Status or standing - Declaratory actions - The deceased and Whitehouse owned a cottage property as joint tenants - The deceased's will left his interest in the cottage property to his wife, unless the joint tenancy had not been severed, in which case the prop­erty would be owned by Whitehouse as the surviving joint tenant - Before his death, the deceased had advised Whitehouse that he wished to sever the joint tenancy and that he would be applying to the court to sever the joint tenancy - The deceased's wife applied for a declaration that the joint tenancy had been severed - The Alberta Court of Queen's Bench held that the wife had standing to bring the application under rule 410 of the Rules of Court, which dealt with proceedings for a declaration of a beneficial interest in land - Alternatively, the wife could have applied for advice and direction pursuant to rule 4 of the Surro­gate Rules as "a person interested in the estate" - See paragraphs 10 to 19.

Real Property - Topic 3881

Joint estates - Severance of joint tenancies - General - Standing to apply - [See Prac­tice - Topic 229 ].

Real Property - Topic 3882

Joint estates - Severance of joint tenancies - Jurisdiction - The deceased and White­house owned a cottage property as joint tenants - The deceased's will left his inter­est in the cottage property to his wife, unless the joint tenancy had not been severed, in which case the property would be owned by Whitehouse as the surviving joint tenant - Before his death, the deceased had advised Whitehouse that he wished to sever the joint tenancy and that he would be applying to the court to sever the joint tenancy - The deceased's wife applied for a declaration that the joint tenancy had been severed - Whitehouse argued that the court did not have jurisdic­tion to declare that a joint tenancy had been severed - The Alberta Court of Queen's Bench held that it had jurisdiction to make a binding declaration as to bene­ficial interests in land - See para­graphs 20 to 24.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - The deceased and Whitehouse owned a cottage property as joint tenants - The deceased's will left his interest in the cottage property to his wife, unless the joint tenancy had not been severed, in which case the property would be owned by Whitehouse as the surviving joint tenant - Before his death, the deceased had advised Whitehouse that he wished to sever the joint tenancy - He had also executed a transfer of the property to himself and Whitehouse as tenants in common and had advised that he would be applying to the court to sever the joint tenancy - The deceased's wife applied for a declaration that the joint tenancy had been severed - The Alberta Court of Queen's Bench dismissed the application where the evidence was insufficient to convince it that there had been a severance of the joint tenancy - See paragraphs 25 to 60.

Cases Noticed:

Bryan et al. v. Heath (1979), 108 D.L.R.(3d) 245 (B.C.S.C.), refd to. [para. 13].

Kozyra v. Kozyra, [1998] A.J. No. 512 (Q.B.), refd to. [para. 20].

McNaughton v. McNaughton (1999), 239 A.R. 155 (Q.B.), refd to. [para. 23].

Nordstrom v. Bauman, [1962] S.C.R. 147, refd to. [para. 24].

Sorenson v. Sorenson (1977), 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. 26].

Burgess v. Rawnsley, [1975] 3 All E.R. 142, refd to. [para. 26].

Denny, Re; Stokes v. Denny (1947), 116 L.J.R. 1029, refd to. [para. 27].

Flynn v. Flynn, [1930] I.R. 337, refd to. [para. 27].

Stonehouse v. British Columbia (Attorney General), [1962] S.C.R. 103, refd to. [para. 32].

Pirie v. Wyld (1886), 11 O.R. 422 (C.A.), refd to. [para. 46].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Prop­erty (2nd Ed. 1985), p. 803 [para. 22].

McClean, A.J., Severance of Joint Ten­ancies (1979), 57 Can. Bar Rev. 1, pp. 6 [para. 35]; 25 [paras. 52, 55].

Sopinka, J., and Lederman, S.N., The Law of Evidence in Canada (2nd Ed. 1998), pp. 810 [paras. 43, 45]; 811 [para. 45]; 813 [para. 46].

Ziff, Principles of Property Law (2nd Ed. 1996), pp. 298 [para. 55]; 299 [para. 35]; 303 [para. 53].

Counsel:

Martin West (Farnham Schaffter & Zie­bart), for the applicant;

James R. Weir (Weir Bowen), for the respondent, Cathy Lynn Whitehouse;

Rod Knaut (Knaut Johnson), for Dale Storvik and Patrick Ilg.

This application was heard on March 2, 2000, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following decision on April 14, 2000.