Transfer of Property Registered After Death Valid

Transfer of Property Registered After Death Valid

Chung estate v. Chan 1995 BCJ 2195 was a decision of the BC Court of Appeal that held that a transfer of real property from a deceased person to himself and another person as joint tenant, was valid despite the fact it was registered at the land title office after the deceased’s death.

This decision was subsequently followed in the Supreme Court of British Columbia in Plecas v Plecas 2015 BCSC 464 , which stated that the form A transfers were effective as against her, upon execution, and were intended to do so, and the transfers carried with them the right to apply for registration even after death.

In Plecas the plaintiff sought to set aside various transfers from the deceased to her son, that were registered after the death of the deceased.

The court allowed the validity of those transfers.

The Supreme Court of Canada had considered the effect of section 20 of the Land Title act RSBC in the decision Davidson V. Davidson 1946 SCR 115.

In the Davidson case, the defendant was the registered owner of the lands.

He executed and delivered a transfer of the lands. The transfer was neither registered no was an application made to register.

The plaintiff registered judgments against the registered title of the defendant.

The majority of the Supreme Court of Canada held that the instrument was bona fide and validly executed, and was entitled to priority over the judgment creditor under the circumstances.

The court followed the common law rule with respect to the rights of judgment creditors, that stated the execution creditor can only attach that interest which exists in the execution debtor. In Davidson the respondent had disposed of his entire interest before the registration of the judgment, and the judgment could not attached to the lands and questions even though the transfer was registered after death.

In Feinstein fee. Ashford 2005 BC SC 1379, the court considered section 20 of the Land Title act in the context of a joint tenancy.

A joint tenant executed, but did not register a form a transfer, which purported to sever the joint tenancy at Institute instead a tenancy in common.

The petitioner argued that the severance of the joint tenancy was not binding, as it failed to meet the common-law requirement of delivery.

The court rejected that argument, ruling instead that ”the application for reregistration that was executed by the respondent was effective as against himself on the date that it was signed”.

In other words, the application did indeed sever the joint tenancy on the date it was signed, even though it was not registered until after the respondent’s death .

In the decision Mordo v. Nitting 2006 BCSC 1761 the court found that the grantor had done everything necessary to create a valid trust by completing a form a transfer and declaration of trust.

The declaration of trust confirmed that although the executed for me was not registered, the grantor thereafter held legal title as trustee only. The documents were then left with the grantor’s solicitor.
The court found that section 20 of the Land Title act was engaged, rendering the transfer effective against the person making it, even before it was registered.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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