Severing Joint Tenancy-when a Family Promise is not enough

Written on January 29, 2013 – 8:57 am | by Diane Vieira

The court recently considered whether a transfer made by the deceased a few months before his death severing joint tenancy should be set aside on the basis that the deceased lacked capacity to sever title or was unduly influenced to do so.

The deceased (“Mr. Park”), held title to the house along with his wife and youngest son (“Andrew”) as joint tenants. A few months before his death, the deceased severed joint tenancy and conveyed title to himself as a tenant in common. He then left his estate, including his share of the house, to another daughter. Andrew brought an application to set aside the transfer on the basis that his father lacked capacity to sever joint tenancy and was unduly influenced to do so.

In support of his position, Andrew provides evidence of his financial contributions to the house and his reliance on a “family promise” his parents made him that he would eventually inherit the house after his parents’ death. Three siblings were supportive of Andrew and gave evidence in his favour. A doctor qualified in geriatric medicine and dementia reviewed Mr. Park’s medical records and was of the opinion that Mr. Park did not understand the implications of severing joint tenancy as he appeared to have cognitive issues at the time.

In support of the severance, the court heard from the lawyer who prepared Mr. Park’s testamentary documents and the real estate lawyer who prepared the transfer of title. The real estate lawyer who transferred title took instruction in Korean from Mr. Park and testified that Mr. Park understood the consequences of severing joint title. The lawyer who prepared Mr. Park’s wills was also of the opinion that he had testamentary capacity. Another doctor reviewed Mr. Park’s medical history and the lawyers’ notes and found that he likely had capacity to sever joint tenancy. He testified that dementia alone does not necessarily deprive a person of testamentary capacity. Mr. Park’s wish to sever title was long standing and consistent. Mrs. Park was too unwell to give evidence. The court also considered Mr. Park’s transcript from his examination for discovery before his death that was read into evidence.

The court found that Mr. Park had capacity to sever joint tenancy. The court found the evidence of the two lawyers to be credible. The court also gave greater weight to the opinion of the medical doctor who reviewed and referenced the lawyers’ notes and Mr. Park’s evidence at the examination for discovery. Finally, Mr. Park’s evidence as read in from his examination for discovery was consistent with his desire to sever joint tenancy in order that his daughter receive his share of the house.

Another reminder that title held in joint tenancy can be unilaterally changed.

Thanks for reading,

Diane

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