Presseau v. Presseau Estate, 2010 NSSC 201

• Judge: Dellapinna, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 20, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 201;(2010), 293 N.S.R.(2d) 40 (SC)

Presseau v. Presseau Estate (2010), 293 N.S.R.(2d) 40 (SC);

    928 A.P.R. 40

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AU.011

Robert Marcel Presseau (applicant) v. Presseau Estate (respondent)

(SFHMPAY-068042; 2010 NSSC 201)

Indexed As: Presseau v. Presseau Estate

Nova Scotia Supreme Court

Family Division

Dellapinna, J.

May 31, 2010.

Summary:

The applicant applied under s. 8(2) of the Matrimonial Property Act to set aside a deed executed without his knowledge by his late wife in 2004.

The Nova Scotia Supreme Court, Family Division, allowed the application, holding that the deed was a nullity.

Family Law - Topic 632

Husband and wife - Marital property - Matrimonial home - Joint ownership - A husband and wife purchased a property (marital home) as joint tenants - In 2004, the wife was diagnosed with cancer and became unhappy in the marriage - She executed a will naming the parties' two children as her beneficiaries - The husband was not a beneficiary, nor was he the executor - The wife also executed a warranty deed which effectively transferred her interest in the matrimonial home to herself - She died in February 2008 - The husband only learned of the warranty deed after his wife's death - The husband applied to set aside the deed - The Nova Scotia Supreme Court, Family Division, allowed the application - The court noted that at common law a conveyance to one's self was a legal impossibility and, in the absence of legislation in Nova Scotia allowing such a conveyance, the wife's deed to herself was a nullity - See paragraphs 1 to 34.

Family Law - Topic 632

Husband and wife - Marital property - Matrimonial home - Joint ownership - [See second Real Property - Topic 3891 ].

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of (incl. consent of spouse) - [See Family Law - Topic 632 and second Real Property - Topic 3891 ].

Deeds and Documents - Topic 3186

Conveyances - Invalid conveyances - Nullities - [See Family Law - Topic 632 and first Real Property - Topic 3891 ].

Real Property - Topic 3724

Joint estates - Joint tenancies - Rights of joint tenant - [See both Real Property - Topic 3891 ].

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - Conveyance by joint tenant to himself or herself - [See both Real Property - Topic 3891 ].

Real Property - Topic 3891

Joint estates - Joint tenancies - Severance of - Unilateral acts which do not result in severance - Conveyance by joint tenant to himself or herself - The Nova Scotia Supreme Court, Family Division, stated that at common law a conveyance to one's self was a legal impossibility - However such conveyances were possible if allowed by provincial legislation, for example s. 41 of the Ontario Conveyancing and Law of Property Act - The court noted that s. 10 of the Nova Scotia Real Property Act provided that "Freehold land may be conveyed by a person to himself jointly with another person, including his spouse, by the like means by which it may be conveyed by him to another person, and may in like manner be conveyed by a husband to his wife and by a wife to her husband, alone or jointly with another person" - The court stated that there was no provision in Nova Scotia's Real Property Act similar to s. 41 of Ontario's Conveyancing and Law of Property Act nor could the court or counsel locate any other legislative authority that would allow for the conveyancing of a deed to one's self - See paragraphs 30 to 32.

Real Property - Topic 3891

Joint estates - Joint tenancies - Severance of - Unilateral acts which do not result in severance - Conveyance by joint tenant to himself or herself - The Nova Scotia Supreme Court, Family Division, held that the Matrimonial Property Act conveyed on a matrimonial home a special status that was not shared by other matrimonial assets - However, nowhere in the Act was the right of survivorship guaranteed - A joint tenant, a tenant in common or a spouse with no legal title to the matrimonial home received the same protection as far as their possession of the matrimonial home was concerned - A joint tenancy could therefore be severed by one joint tenant executing and registering a conveyance to her or himself because it destroyed the unity of title essential to the continuance of a joint tenancy and operated to create a tenancy in common - It did not, however, impact either spouses' right of possession to the matrimonial home - However, a conveyance to one's self was a legal impossibility at common law and there was no legislation allowing that type of conveyance in Nova Scotia - See paragraphs 25 to 29.

Cases Noticed:

Robichaud v. Watson (1993), 147 D.L.R. (3d) 626 (Ont. H.C.), refd to. [para. 16].

Mills v. Andrewes and Mills; Andrewes v. Mills (1982), 54 N.S.R.(2d) 394; 112 A.P.R. 394 (T.D.), refd to. [para. 17].

Van Dorp and Van Dorp, Re (1980), 30 O.R.(2d) 623; 16 R.P.R. 161 (Co. Ct.), refd to. [para. 19].

Horne and Evans, Re - see Horne v. Horne Estate.

Horne v. Horne Estate (1987), 21 O.A.C. 313 (C.A.), refd to. [para. 21].

Lamanna v. Lamanna (1983), 145 D.L.R. (3d) 117 (Ont. H.C.), refd to. [para. 21].

Knowlton v. Bartlett (1984), 60 N.B.R.(2d) 271; 157 A.P.R. 271; 16 D.L.R.(4th) 209 (T.D.), refd to. [para. 30].

Statutes Noticed:

Matrimonial Property Act, S.N.S. 1980, c. 9, sect. 8(1), sect. 8(2) [para. 12]; sect. 21(1) [para. 14].

Real Property Act, R.S.N.S. 1989, c. 385, sect. 10 [para. 31].

Counsel:

M. Moore, for Robert Presseau;

T. Sheppard, for Robert Stephen Presseau.

This application was heard in Halifax, Nova Scotia, on May 20, 2010, before Dellapinna, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on May 31, 2010.