The Saskatchewan Court of Appeal’s 2016 decision Thorsteinson Estate v. Olson1 is an unfortunate reminder that estate disputes between family members can continue long after you die. The decision dealt with numerous legal issues related to estate planning, including resulting trusts, undue influence, necessity of independent legal advice, breach of fiduciary duty, and the severance of a joint tenancy.2 Of particular interest was the Court’s decision to deny a claim by Marjorie Thorsteinson’s estate to sever a joint tenancy.3 Their reasoning invites further analysis into when, and if, a gifted joint tenancy can be severed in Saskatchewan.
I. THE TRIAL DECISION
In 2001, Marjorie Thorsteinson brought an action to set aside the transfer of nine quarter-sections of land held in joint tenancy with William Olsen.4 She had initially transferred the land for the purpose of avoiding large probate fees since she intended to leave the land to William after her death.5 At trial, the lawyer who facilitated the original transfer admitted that he failed to inform Marjorie of the difficulties of severing a joint tenancy and the legal implications of this transfer on her ability to dispose of her property.6 Sometime in 2000, Marjorie and William had a falling out. Marjorie wrote to William about her desire to return home to live on the property, and he ignored her.7 Marjorie unfortunately died in 2005 and her estate continued the action she started in 2001. The claim aimed to set aside the transfer or to at least sever the joint tenancy.8 After Justice Schwann decided that the transfer of land from Marjorie to William was a valid inter vivos gift, and that William had rebutted the presumption of a resulting trust, it was necessary for her to determine whether that joint tenancy should be severed by court order.9
To try and sever the joint tenancy, Marjorie relied on s. 156(b) of The Land Titles Act, 2000, which states that:
156 No title or interest held in joint tenancy may be alienated by an instrument purporting to grant the title or interest unless the alienation is authorized:
(a) by all the joint tenants, in writing; or
(b) by court order, on the application of one of the joint tenants.10
In previous decisions, Saskatchewan courts have recognized that the common law allows the joint ownership of land to be severed in several other ways.11 However, the effect of the LTA is to restrict the common law by only allowing a joint tenancy to be severed by the two methods described in the Act.12
Schwann J. refused to allow Marjorie’s estate to apply for a court order under s. 156(b) of the Act because, in her opinion, “[t]he phrase - one of the joint tenants - must…refer to one of the registered joint tenants while alive.”13 She feared that allowing Marjorie’s estate to bring a claim to sever a joint tenancy would result in considerable legal uncertainty.14 The survivor of a joint tenancy could never be certain that title had fully passed to them if the estates of previous joint owners could sever the joint tenancy with a court order.15 For this reason, Schwann J. did not accept the application by the estate to sever the joint tenancy.16
II. COURT OF APPEAL
The Court of Appeal decision, written by Justice Ryan-Froslie, affirmed the trial judge’s interpretation of s. 156 of the LTA. The Court found that a joint tenancy can only be severed by a written agreement, signed by all of the joint tenants, or a court order.17 However, the Court held that the trial judge erred when she decided not to deal with Marjorie’s application for the severance of the joint tenancy.18 It was acceptable for her estate to continue the action because Marjorie brought the application to sever before her death.19
Notwithstanding this error by the trial judge, the Court was not prepared to overturn the ruling that the joint tenancy should not be severed by court order. The Court’s reasoning was that since Marjorie’s gift included the right of survivorship, severing the joint tenancy would effectively revoke that gift,20 relying on Supreme Court of Canada’s decision Pecore v. Pecore.21 The Court of Appeal held that, because Marjorie gave William the right of survivorship when she transferred the land into joint tenancy with him, she was no longer able to revoke that right.22
III. THE PECORE DECISION
Despite the fact that Pecore dealt with a jointly held bank account and not real property,23 both the trial judge and the Court of Appeal cited Pecore as authority for the conclusion that an inter vivos gift of land cannot be retracted by the donor.24 The Court of Appeal based their reasoning on the fact that the gift was really William’s survivorship right in the land, and to allow the joint tenancy to be severed would effectively revoke that gift.25
Saskatchewan courts have previously recognized that the two main features of a joint tenancy are the right of survivorship and the four unities: possession, interest, title, and time.26 This raises an interesting question: should a jointly held interest in land be treated the same as a jointly owned bank account? A jointly held interest in land is subject to the LTA while a jointly held bank account is not. In addition to that, a jointly held interest in land comes with other benefits besides the right of survivorship.27
While the right to survivorship has been treated as a crucial, and even the key, characteristic of a joint tenancy,28 I would argue that it is better characterized as merely one element of a joint tenancy and not the whole interest. If the Court did sever the joint tenancy, it would revoke William’s survivorship right. However, he could still be left with an interest in the land as a tenant in common. If we consider the gift to have been the right for William to enter into a joint tenancy arrangement with Marjorie and this gift included all the components of a joint tenancy, not just survivorship, then severing the joint tenancy would not be a revocation of the gift but simply one of the parties exercising their right under the LTA to alter their joint tenancy arrangement. Ultimately, the Court chose not to discuss the differences between joint interests in real property and personal property, or how a survivorship right is only part of what defines a joint tenancy. While the future outcomes of court applications to sever gifted joint tenancy arrangements in Saskatchewan may be more clear, the reasoning behind how the Court came to this conclusion is anything but.
IV. CONCLUSION
This decision reaffirms that courts in Saskatchewan are reluctant to allow the severance of a joint tenancy arrangement by unilateral actions. This is especially true when the party seeking to sever the joint tenancy gifted the joint ownership interest. The right of survivorship is key to the joint tenancy arrangement, and the Court of Appeal was not prepared to allow this right to be revoked. While the purpose of a transfer may simply be to avoid probate fees by conveying the land to the eventual beneficiary before the testator’s death, if the transferor has a falling out with the beneficiary, it may be difficult or impossible to sever that joint tenancy.
* BA (University of Victoria), JD Candidate (University of Saskatchewan). Any errors are my own.
1 2016 SKCA 134, 20 ETR (4th) 178 [Thorsteinson CA].
2 Ibid at para 23.
3 Ibid at paras 61-68.
4 Thorsteinson v Olson, 2014 SKQB 237 at para 3, [2014] 10 WWR 768 [Thorsteinson QB].
5 Ibid at paras 19-20.
6 Ibid at para 23.
7 Ibid at paras 40-41.
8 Ibid at paras 3, 117.
9 Ibid.
10 SS 2000, c L-5.1 [LTA].
11 Rikley v Mooney, 2006 SKQB 544 at para 19, 29 ETR (3d) 171 [Rikley]; Tessier Estate v Tessier, 2001 SKQB 399 at para 8, [2002] 1 WWR 98 [Tessier].
12 Rikley, ibid at para 20; Tessier, ibid at para 11; Hunt v Moody, 2015 SKQB 364 at para 10 (CanLII) [Hunt Estate].
13 Thorsteinson QB, supra note 4 at para 126.
14 Ibid at para 132.
15 Ibid at para 126, 132.
16 Ibid at para 132.
17 Supra note 1 at para 63.
18 Ibid.
19 Ibid at para 64.
20 Ibid at para 67.
21 2007 SCC 17, [2007] 1 SCR 795 [Pecore].
22 Thorsteinson CA, supra note 1 at para 67.
23 Supra note 21 at paras 1-3.
24 Thorsteinson QB, supra note 4 at para 132; Thorsteinson CA, supra note 1 at para 67.
25 Thorsteinson CA, ibid.
26 Tessier, supra note 11 at para 8; Rikley, supra note 11 at para 19; Hunt Estate, supra note 12 at para 9; Thorsteinson QB, supra note 4 at para 118.
27 Re Murdoch and Barry (1975), 64 DLR (3d) 222 at 224-25, 10 OR (2d) 626 (CA).
28 Simcoff v Simcoff, 2009 MBCA 80 at para 62, [2009] 9 WWR 248.