Sorensen Estate v. Sorensen, (1977) 3 A.R. 8 (CA)

• Judge: McDermid, Haddad and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 18, 1977
• Citations: (1977), 3 A.R. 8 (CA)

Sorensen Estate v. Sorensen (1977), 3 A.R. 8 (CA)

MLB headnote and full text

Sorensen's Estate v. Sorensen

Indexed As: Sorensen Estate v. Sorensen

Alberta Supreme Court

Appellate Division

McDermid, Haddad and Morrow, JJ.A.

February 18, 1977.

Summary:

This case arose out of the question whether there had been severance of the joint tenancy titles of three lots owned by a man and a woman, who were divorced in 1969. In an agreement made between the man and the woman after the divorce it was agreed to sell a vacant lot adjacent to the matrimonial home, the proceeds of which were to be used by the woman for the matrimonial home. Also, the parties agreed on a lease to the wife for her lifetime of the matrimonial home and that the man was to pay the woman maintenance for a retarded son, which maintenance was to be secured by a charge against the interest of the man in the matrimonial home.

In 1974, upon learning that she was terminally ill from cancer, the woman attempted to sever the joint tenancies to provide an estate for her retarded son. Accordingly, the woman executed a trust deed in which she declared that she held the joint tenancy lands in trust for her son, instructed her solicitor to hold the transfers of the lands and register them upon her death and declared that these acts were done in order to sever the joint tenancies. She also executed a deed of the lands to her son and executed a will. The deed was left undelivered in her lawyer's office. Finally she commenced an action for partition of the joint tenancies, but died before the matter was heard.

Upon her death the man claimed the lots by the right of survivorship of the joint tenancies. The woman's estate brought an application to determine whether the joint tenancies had been severed by all or any of the various acts of the woman respecting the property. The Alberta Supreme Court, Trial Division, dismissed the application, found that no severance had taken place and held that the man as survivor was entitled to the properties. The estate appealed.

The Alberta Court of Appeal allowed the appeal and held that the joint tenancies had been severed by the execution of the trust deed in favour of the woman's retarded son, even though the gift to her son of only the equitable title to the land - see paragraphs 32 to 37.

The Court of Appeal held that none of the terms of the settlement after the divorce had the effect of severing the joint tenancies - see paragraphs 15 to 29.

The Court of Appeal held that the declaration of severance in the trust deed, the executions of transfers to the son, the execution of the will and the commencement of the action for partition did not result in severance - see paragraphs 30 to 31 and 38 to 47.

Gifts - Topic 854

Gifts inter vivos - Validity of transfer - Real property - Delivery of deed - A woman executed transfers of land to her retarded son and delivered them to her solicitor with instructions to hold them and register them upon her death - The Alberta Court of Appeal stated that delivery to her own solicitor did not constitute delivery to the son and that the gift of the land was incomplete - See paragraph 38.

Gifts - Topic 1503

Gifts mortis causa - When doctrine applicable - Land - The Alberta Court of Appeal held that land may not be given mortis causa - See paragraphs 39 to 40.

Real Property - Topic 3881

Joint estates - Severance of joint tenancy - General principles - The Alberta Court of Appeal discussed the severance of a joint tenancy and stated that a joint tenancy can be severed in three ways: by a unilateral act of one of the joint tenants with regard to his own interests; by mutual agreement; and by any course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common - See paragraphs 10 to 13.

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - Execution of trust deed by one joint tenant - A woman executed a trust deed in favour of her retarded son respecting her interest in real property jointly held with her ex-husband - The Alberta Court of Appeal held that the execution of the trust deed severed the joint tenancy, even though the gift to her son was of only the equitable title of the land - See paragraphs 32 to 37.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Execution of will - The Alberta Court of Appeal held that the execution of a will by one joint tenant does not result in severance of the joint tenancy - See paragraphs 41 to 43.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Lease by one joint tenant of his interest in jointly held property to the other joint tenant for the life of the other - The Alberta Court of Appeal held that such a lease did not result in severance of the joint tenancy - See paragraphs 18 to 26.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Mortgage given by one joint tenant on his interest in jointly held property - A husband after a divorce from his wife agreed to pay maintenance, which was to be secured by a charge against his interest in property held jointly with his wife - The Alberta Court of Appeal held that the charge on the husband's interest did not result in severance of the joint tenancy - See paragraphs 27 to 29.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Sale of portion of jointly held land - A husband and wife upon divorce decided to sell a vacant lot adjoining the matrimonial home, both of which were jointly held - The Alberta Court of Appeal held in the circumstances that it could not be inferred that by the sale of the vacant lot the parties intended to sever their joint tenancy in the matrimonial home - See paragraphs 16 to 17.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Unilateral declaration of intention to sever joint tenancy by one joint tenant - The Alberta Court of Appeal held that a unilateral declaration of intention of one joint tenant to sever a joint tenancy, which is unaccepted by the other joint tenant, does not result in severance of the joint tenancy - See paragraphs 44 to 47.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Unilateral declaration of severance of tenancy - Bringing of action for partition of joint tenancy - The Alberta Court of Appeal held that the bringing of an action for partition of a joint tenancy did not by itself result in severance of the joint tenancy - See paragraphs 44 to 47.

Real Property - Topic 3891

Joint estates - Severance of joint tenancies - Unilateral acts which do not result in severance - Unilateral declaration of severance of trust - A woman made a trust deed in which she gave her interest in lands held jointly with her ex-husband to her son and declared that she was thereby severing the joint tenancy - The declaration that she intended to sever the joint tenancy was never brought to the attention of her ex-husband - The Alberta Court of Appeal held that the declaration did not result in severance of the joint tenancy - See paragraphs 30 to 31.

Real Property - Topic 3898

Joint estates - Severance of joint tenancies - Burden of proof - The Alberta Court of Appeal stated that the burden of demonstrating that there has been a severance of a joint tenancy lies on those who allege it - See paragraph 14.

Cases Noticed:

Burgess v. Rawnsley, [1975] 3 All E.R. 142, appld. [para. 13].

Flynn v. Flynn, [1930] I.R. 337, appld. [para. 14].

Stonehouse v. Attorney General of British Columbia, [1962] S.C.R. 103, appld. [para. 36].

Public Trustee v. Mee, [1972] 2 W.W.R. 424 (B.C.C.A.), appld. [para. 36].

Ogilvie v. Littleboy (1897), 13 T.L.R. 399, affirmed 15 T.L.R. 294 sub nom. Ogilvie v. Allen, appld. [para. 37].

Ogilvie v. Allen, 15 T.L.R. 294, affirming 13 T.L.R. 399, appld. [para. 37].

Walker v. Foster, 30 S.C.R. 299, folld. [para. 39].

Macedo v. Stroud, [1922] 2 A.C. 330, folld. [para. 39].

Watts v. Public Trustee (1950), 50 S.R. (N.S.W.) 130, folld. [para. 40].

Goldsworthy v. Johnson, 204 Pacific Reporter 508, folld. [para. 40].

Szabo v. Boros et al. (1967), 64 D.L.R.(2d) 48, refd to. [para. 43].

Munroe v. Carlsen (1976), 59 D.L.R.(3d) 763, folld. [para. 45].

Re Wilks: Child of Bulmer, [1891] 3 Ch. 59, folld. [para. 45].

Grant v. Grant, [1952] O.W.N. 641, folld. [para. 45].

Nielsen-Jones v. Fedden, [1974] 3 All E.R. 38, folld. [para. 45].

Hawksley v. May, [1955] 3 All E.R. 353, not folld. [para. 45].

Re Draper's Conveyance, [1967] 3 All E.R. 853, not folld. [para. 45].

Burgess v. Rawnsley, [1975] 3 All E.R. 142, refd to. [para. 45].

Re Denny (1947), 116 L.J. 1029, appld. [para. 14].

Cowper v. Fletcher, 122 E.R. 1270, consd. [para. 22].

Statutes Noticed:

Transfer and Descent of Land Act, R.S.A. 1970, c. 368, sect. 9 [para. 12].

Authors and Works Noticed:

Cheshire, Modern Law of Real Property (11th Ed.), p. 328 [para. 10].

Corpus Juris Secundum, vol. 48, p. 928 [para. 46].

Halsbury's Laws of England (1st Ed.), vol. 2, p. 203 [para. 24]; vol. 24, p. 205 [para. 21].

Halsbury's Laws of England (3rd Ed.), vol. 18, p. 394 [para. 37]; p. 400 [para. 40]; vol. 26, p. 919 [para. 37]; vol. 32, p. 367 [para. 46]; vol. 37, p. 337 [para. 43].

Megarry and Wade, The Law of Real Property (1957), pp. 369 [paras. 25, 43]; 403 [para. 43].

Megarry and Wade, The Law of Real Property (4th Ed.), pp. 404 [para. 20]; 405 [para. 21].

Vaines, Personal Property, p. 309 [para. 40].

Wharton's Law Lexicon (11th Ed.) [para. 44].

Counsel:

H.F. Landerkin, for the appellant;

N.P. Leveque, for the respondents.

This case was heard before McDERMID, HADDAD and MORROW, JJ.A., of the Alberta Supreme Court, Appellate Division.

On February 18, 1977, McDERMID, J.A., delivered the following judgment of the Appellate Division: