Zeligs Estate v. Burnett Estate, 2016 BCCA 280

JudgeNewbury, Groberman and Dickson, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJanuary 08, 2016
JurisdictionBritish Columbia
Citations2016 BCCA 280;(2016), 390 B.C.A.C. 173 (CA)

Zeligs Estate v. Burnett Estate (2016), 390 B.C.A.C. 173 (CA);

    673 W.A.C. 173

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JL.003

Joseph Zeligs, Personal Representative of the Estate of Barbara Joan Zeligs, Deceased (appellant/respondent on cross-appeal/plaintiff) v. Diana June Janes, in her personal capacity and as Executor of the Will and Trustee of the Estate of Dorothy Burnett, Deceased, and Jerry Carter Janes (respondents/appellants on cross-appeal/defendants)

(CA42542; 2016 BCCA 280)

Indexed As: Zeligs Estate v. Burnett Estate

British Columbia Court of Appeal

Newbury, Groberman and Dickson, JJ.A.

June 29, 2016.

Summary:

An elderly woman gratuitously transferred real property (i.e., the Knox Road property) in joint tenancy, to one of her adult daughters, Janes. Janes was also a joint-holder of her mother's chequing account and donee of an enduring power of attorney. Shortly after the transfer, Janes granted mortgages on the Knox Road property and used the mortgage funds for her own benefit and that of her husband. While her mother was still alive, but mentally incapable and in a long-term care facility, Janes sold the property for 2.7 million. She executed the sale as a joint tenant and in her capacity as her mother's attorney. As part of the conveyance, Janes directed payouts of the mortgages. She deposited the remaining sale proceeds in the joint account, but within weeks withdrew them and used them to purchase real property and investments for herself and her husband (Mr. Janes). Janes' mother died a few months later. As executor of her will, Janes divided funds unrelated to the Knox Road sale on deposit in the joint account into specific bequests and equal shares of the residue, and distributed them. She and her sister, Zeligs, were the residual beneficiaries. Zeligs died the year after her mother. The representative of Zeligs' Estate commenced an action against the Janes, claiming Janes had unduly influenced her mother in the Knox Road transfer and held her interest in the property in a resulting trust. The Estate also claimed the joint tenancy had been severed when the property was sold and that Janes breached her fiduciary duty as her mother's attorney when she paid the mortgage debts from the sale proceeds.

The British Columbia Supreme Court, in a decision reported [2015] B.C.T.C. Uned. 7, held the presumptions of undue influence and resulting trust arose, but both were rebutted. The court also held the joint tenancy had not been severed by the sale, but was severed when Janes transferred the sale proceeds to her own exclusive use and benefit. In consequence, the joint tenancy became a tenancy in common, the right of survivorship was extinguished and the estate was entitled to 50 per cent of the sale proceeds. The judge went on to find that Janes had breached her fiduciary duty as her mother's attorney when she directed the mortgage payouts and held the amounts of the mortgages were subject to a constructive trust. In the alternative, the court held the Janes responsible to exonerate the mother's estate as surety for the same amounts. Zeligs Estate filed a notice of appeal, but it was later abandoned. The Janes cross-appealed. Only the cross-appeal proceeded. At issue was whether: "a) Given their trial theory and admissions, can the Janes argue on appeal that Ms. Janes was entitled to withdraw the sale proceeds and use them for her own exclusive benefit because they were held on deposit in a joint account? b) Did the judge err in finding that Ms. Janes severed the joint tenancy when she withdrew the sale proceeds from the joint account, thus extinguishing the right of survivorship? c) Did the judge make any palpable and overriding factual errors? d) Did the judge err in his application of fiduciary principles and the doctrine of equitable exoneration to the mortgage discharges?"

The British Columbia Court of Appeal dismissed the cross-appeal. The court reviewed the first principles of joint tenancy and severance in relation to real and personal property. The court granted leave to Janes to advance all arguments raised on appeal. The trial judge made no error in finding that Janes severed the joint tenancy when she withdrew the sale proceeds from the joint account. The judge made no palpable and overriding factual errors. Nor did the trial judge err in his application of fiduciary principles and the doctrine of equitable exoneration to the mortgage discharges.

Agency - Topic 1078

Authority of agent - Express authority - Power of attorney - Fiduciary duty - See paragraphs 86 to 88.

Banks and Banking - Topic 2721

Bank accounts - Joint accounts - General - See paragraphs 60 to 62.

Banks and Banking - Topic 2729

Bank accounts - Joint accounts - Severance of joint tenancy - By withdrawing funds from account - See paragraphs 69 to 79.

Equity - Topic 3010

Equitable rules affecting property - General - Doctrine of equitable exoneration - See paragraphs 89 to 93.

Gifts - Topic 724

Gifts inter vivos - Transfers in joint tenancy - Transfers to joint bank accounts - See paragraphs 60 to 62.

Gifts - Topic 730

Gifts inter vivos - Transfers in joint tenancy - Survivorship - See paragraphs 38 to 44.

Personal Property - Topic 1626

Ownership - Joint tenancy - Severance of - See paragraphs 45 to 59.

Personal Property - Topic 1644

Ownership - Tenancy in common - Circumstances creating - See paragraphs 45 to 62.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - See paragraphs 63 to 68.

Real Property - Topic 3881

Joint estates - Severance of joint tenancies - General - See paragraphs 45 to 59.

Real Property - Topic 3890

Joint estates - Severance of joint tenancies - Unilateral acts which result in severance - See paragraphs 56 to 59.

Counsel:

M.S. Kerwin, for the respondent on cross-appeal;

R.A. Kasting, for the appellants on cross-appeal.

This appeal was heard in Vancouver, B.C., on January 8, 2016, before Newbury, Groberman and Dickson, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court by Dickson, J.A., on June 29, 2016.

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28 practice notes
  • Court Of Appeal Summaries (April 24, 2023 ' April 28, 2023)
    • Canada
    • Mondaq Canada
    • May 12, 2023
    ...Priority,Execution Act, R.S.O. 1990, c. E.24, s. 9(1) and s. 10(6),TheReal Property Act, C.C.S.M. c. R30, s. 136(3),Zeligs v. Janes, 2016 BCCA 280,Royal & SunAlliance Insurance Co. v. Muir, 2011 ONSC 2273,Arnold Bros. Transport Ltd. v. Murphy, 2013 MBQB 137,Power v. Grace, [1932] O.R. 357 (......
  • C.K.M. v. H.R.M., 2021 BCSC 1297
    • Canada
    • Supreme Court of British Columbia (Canada)
    • July 5, 2021
    ...the bankrupt” that vests in the trustee upon bankruptcy under the BIA: Re. Beninger at paras. 25–32; M.R.P. at para. 43; Zeligs v. Janes, 2016 BCCA 280 at para. 61, citing D.W.M. Waters, M.R. Gillen & L.D. Smith, eds., Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) a......
  • 2023 BCSC 80,
    • Canada
    • January 1, 2023
    ...counsel for the Plaintiff to the following three authorities: Farley v. Pearlson, 2001 BCSC 1237; affirmed 2003 BCCA 37; Zeligs v. Janes, 2016 BCCA 280; and Mayer v. Mayer Estate, 2018 BCSC 41 In Farley, the circumstances were relatively similar but for the fact that the parties were marrie......
  • Mayer v. Mayer Estate, 2018 BCSC 2225
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 14, 2018
    ...death. [115] I will address each of Ms. Mayer’s arguments in turn. Joint Tenancy with respect to the Property [116] In Zeligs v. Janes, 2016 BCCA 280, the British Columbia Court of Appeal undertook a detailed review of first principles concerning joint tenancy and severance in relation to r......
  • Request a trial to view additional results
22 cases
  • C.K.M. v. H.R.M.,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • July 5, 2021
    ...the bankrupt” that vests in the trustee upon bankruptcy under the BIA: Re. Beninger at paras. 25–32; M.R.P. at para. 43; Zeligs v. Janes, 2016 BCCA 280 at para. 61, citing D.W.M. Waters, M.R. Gillen & L.D. Smith, eds., Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) a......
  • 2023 BCSC 80,
    • Canada
    • January 1, 2023
    ...counsel for the Plaintiff to the following three authorities: Farley v. Pearlson, 2001 BCSC 1237; affirmed 2003 BCCA 37; Zeligs v. Janes, 2016 BCCA 280; and Mayer v. Mayer Estate, 2018 BCSC 41 In Farley, the circumstances were relatively similar but for the fact that the parties were marrie......
  • Mayer v. Mayer Estate, 2018 BCSC 2225
    • Canada
    • Supreme Court of British Columbia (Canada)
    • December 14, 2018
    ...death. [115] I will address each of Ms. Mayer’s arguments in turn. Joint Tenancy with respect to the Property [116] In Zeligs v. Janes, 2016 BCCA 280, the British Columbia Court of Appeal undertook a detailed review of first principles concerning joint tenancy and severance in relation to r......
  • Preskar Estate v. Wagner,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • January 19, 2023
    ...counsel for the Plaintiff to the following three authorities: Farley v. Pearlson, 2001 BCSC 1237; affirmed 2003 BCCA 37; Zeligs v. Janes, 2016 BCCA 280; and Mayer v. Mayer Estate, 2018 BCSC [41]       In Farley, the circumstances were relatively similar but for......
  • Request a trial to view additional results
6 firm's commentaries
  • Court Of Appeal Summaries (April 24, 2023 ' April 28, 2023)
    • Canada
    • Mondaq Canada
    • May 12, 2023
    ...Priority,Execution Act, R.S.O. 1990, c. E.24, s. 9(1) and s. 10(6),TheReal Property Act, C.C.S.M. c. R30, s. 136(3),Zeligs v. Janes, 2016 BCCA 280,Royal & SunAlliance Insurance Co. v. Muir, 2011 ONSC 2273,Arnold Bros. Transport Ltd. v. Murphy, 2013 MBQB 137,Power v. Grace, [1932] O.R. 357 (......
  • Gratuitous Transfers Into Joint Tenancy And The Gift Of The Right Of Survivorship: Part I
    • Canada
    • Mondaq Canada
    • March 8, 2023
    ...4. Pohl v Mitdal, 2017 ABQB 711 ("Pohl"), aff'd Pohl v Mitdal, 2018 ABCA 403 ("Pohl ABCA"). 5. Pohl at para 27. 6. Zeligs Estate v Janes, 2016 BCCA 280 ('Zeligs Estate') at para 7. Simcoff v Simcoff, 2009 MBCA 80 ("Simcoff") at para 62. 8. Pecore v Pecore, 2007 SCC 17 ("Pecore"). 9. Pecore ......
  • Joint Tenancy And Making Gifts Of The Right Of Survivorship
    • Canada
    • Mondaq Canada
    • November 1, 2022
    ...the joint tenancy prior to death, will extinguish the right of survivorship: Bergen v. Bergen, 2013 BCCA 492; Zeligs Estate v. Janes, 2016 BCCA 280. The ability of the transferor A to effectively revoke the gift to B seems contrary to the irrevocable nature of gifts at This point was raised......
  • Gratuitous Transfers Into Joint Tenancy And The Gift Of The Right Of Survivorship: Part 2
    • Canada
    • Mondaq Canada
    • April 26, 2023
    ...Footnotes 1. Simcoff v Simcoff, 2009 MBCA 80 ("Simcoff"). 2. Simcoff at paras 63 and 64. 3. Simcoff at para 64. 4. Zeligs Estate v Janes, 2016 BCCA 280 ("Zeligs 5. Zeligs Estate at para 41. 6. Kennedy v Smith, 2022 BCSC 1622 ("Kennedy"), at paras 77, 83, 90 and 91. 7. See Wong v Chong Estat......
  • Request a trial to view additional results

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