In Thompson v. Elliott Estate, 2020 ONSC 1004 (CANLII), the Court considered the validity and effect of a “zombie” deed signed by a transferor while alive in order to convey an interest in land, but not registered on title until after the transferor’s death.

The Facts:

Alitha Elizabeth Elliott and Byron Thompson lived in a common law relationship from 2008 until they married in 2014. Each had adult children from prior marriages.

In 2010, they purchased a home as joint tenants. In July 2016, they sold their first home and purchased a new home in Cobourg, Ontario, which was their matrimonial home (the “Matrimonial Home”). They held title to the Matrimonial Home as joint tenants.

A few months later, in October 2016, Ms. Elliott was admitted to hospital due to medical complications from diabetes, where she remained until her unexpected death on April 15, 2017. A month before her death, in March 2017, following a disagreement with Mr. Thompson, Ms. Elliott contacted a lawyer and asked him to see her in the hospital as she wished to make a new will leaving her estate to her three adult children, not Mr. Thompson. There was no issue that Ms. Elliott was capable of making a Will at the time, and the lawyer obtained an attestation of competency from Ms. Elliott’s doctor.

When the lawyer met with Ms. Elliott to take her instructions, he determined that the bulk of her assets consisted of her one-half interest in the Matrimonial Home. As such, the lawyer obtained Ms. Elliott’s instructions to server the joint tenancy so that her share of the Matrimonial Home would go to her children, and not to Mr. Thompson by right of survivorship, as she intended to divorce him and did not wish for him to inherit her estate. Ms. Elliott had already revoked her power of attorney appointing Mr. Thompson, and signed a new one appointing her three children as her attorneys.

On March 26, 2017, the lawyer and one of his staff attended the hospital and Ms. Elliott signed a new Will naming her three children as her sole beneficiaries. Two members of the lawyer’s staff returned to the hospital on March 27, 2017 to have Ms. Elliott sign a corrected Will (the one signed before had typographical errors). In addition, on that same day, Ms. Elliott signed an Acknowledgment and Direction to server the joint tenancy of the Matrimonial Home. Ms. Elliott gave clear instructions that the lawyer was to register the severance of the joint tenancy as soon as possible. The effect of this severance would be that Ms. Elliott and Mr.Thompson would each hold title to the Matrimonial Home as tenants in common with a 50% interest each. Ms. Elliott’s interest would pass to her estate upon her death (of which her three children were beneficiaries), and not to Mr. Thompson.

Unfortunately, Ms. Elliott died on April 15, 2017. The lawyer’s office was notified of her death on April 18, 2017. Upon retrieving Ms. Elliott’s Will file, the lawyer realized that the transfer severing the joint tenancy had not been registered on title to the Matrimonial Home and had been inadvertently left in the Will file. That same day, the lawyer’s office registered the transfer/deed on title. Since Ms. Elliott was no longer alive at this time, this was a “zombie” deed/transfer . In registering the “zombie” deed/transfer on title, the lawyer had to make various “law statements” regarding Ms. Elliott which were no longer accurate in light of her death. Had the death been properly disclosed, the Land Registry Office would have rejected the transfer/deed.

Ms. Elliott’s adult children and Mr. Thompson agreed to sell the Matrimonial Home. It was only then that Mr. Thompson for the first time learned of the transfer/deed to sever the joint tenancy that had been registered after Ms. Elliott’s death.

The Matrimonial Home was ultimately sold, and the proceeds were held in trust by the children’s counsel.

The Application:

Mr. Thompson commenced an application to determine his entitlement to the proceeds of sale of the Matrimonial Home. Mr. Thompson asserted that the registration of the severance of the joint tenancy was invalid on account of the “zombie” deed/transfer, and claimed 100% of the sale proceeds as a joint tenant by right of survivorship. The application was opposed by Ms. Elliott’s estate.

The Court accepted the lawyer’s evidence regarding his conversations and instructions received from Ms. Elliott regarding the preparation of her Will and the changing of her beneficiaries, as well as her instructions to register the transfer/deed to sever the joint tenancy without delay so that Mr. Thompson could not benefit from her death and become the sole owner of the Matrimonial Home by right of survivorship. As Ms. Elliott intended to divorce Mr. Thompson, she did not wish for her interest in the Matrimonial Home to pass to him upon her death. The Court found that after she signed the Acknowledgment and Direction on March 27, 2017, Ms. Elliott relinquished control of the document to sever the joint tenancy and trusted the lawyer would immediately register it.

The Court then considered whether the failure to register the deed/transfer while Ms. Elliott was alive was fatal to the severance. It is settled law in Ontario that a person can unilaterally sever a joint tenancy upon the execution of a transfer in land. However, this severance must be done before the person dies and cannot be done by Will or testamentary disposition, as by that point, it is too late, as the right of survivorship has already vested in the surviving tenant. In terms of what determines whether a joint tenancy has been severed, it is the “delivery”, not the actual “registration”, of the deed/transfer that matters. In order for a transfer to be considered effectively “delivered”, the party whose transfer it is must, by words or conduct, expressly or impliedly acknowledge his or her intention to be immediately or unconditionally bound by the terms set out in the deed/transfer. That intention must be assessed at the time the deed/transfer is executed.

In the present case, the Court found that the Acknowledgment and Direction to transfer land signed by Ms. Elliott was indistinguishable from the deed/transfer to which it related, and her signature on the Acknowledgment and Direction gave effect to her intention to sever the joint tenancy. The Court therefore rejected Mr. Thompson’s argument that delivery and severance of a joint tenancy could not be effected short of registration. The weight of judicial authority in Ontario is that the intention and validity of an instrument is determined on the date of execution of the instrument, rather than the date of registration.

In the present case, however, it was improper for the lawyer to have made false statements and to register the “zombie” deed/transfer after Ms. Elliott’s death, as such registrations are invalid and are properly rejected by the Land Registry Office. The proper procedure in this case would have been for the lawyer, upon discovering the error, to bring an application requesting a certificate of pending litigation and a declaration of an interest in land and for a vesting order under s.100 of the Courts of Justice Act. The lawyer should not have left it up to Mr. Thompson to discover the situation and force him to bring a court application as had occurred in the present case.

The Court dismissed Mr. Thompson’s application and declared that Mr. Thompson had a 50% interest in the Matrimonial Home as a tenant in common, and the estate of Ms. Elliott held the other 50% interest as a tenant in common. As the property had already been sold to an arm’s length purchaser, the declaration was only applicable to the distribution of the net sale proceeds.

The Take Away:

“Zombie” deeds/transfers are invalid instruments and lawyers should not attempt to register them in order to correct errors or otherwise. Nevertheless, it is settled law in Ontario that the failure to register a transfer in land prior to the transferor’s death is not fatal to the conveyance of an interest in land, provided there is sufficient evidence of the transferor’s intention to convey the interest in land upon the execution of the transfer document. Lawyers should therefore take thorough notes of their client’s instructions.