Court Ordered Property Sold Due to Unreasonable Sibling

Court Ordered Property Sold Due to Unreasonable Sibling

A court may order co owned property sold and stipulate the terms of the sale, especially when one owner is unreasonable.

I have previously blogged about the case of Mondonese v Delac Estates at both the trial and appeal levels.

The Court had found that the gratuitous transfer by the parties’ deceased mother had resulted from the defendant’s exercise of undue influence upon her.

The Court ordered that the house formed part of the mother’s estate.

The defendant appealed and the appeal was dismissed.

The Court found that the defendant was un- cooperative with the sale of the property and granted the plaintiff the conduct of the sale upon  the following detailed terms,  and reasoning applied by the court in response to each of the parties arguments:

” The plaintiff submits that the property should be listed for sale with a realtor selected by the plaintiff at a price recommended by the realtor and that any sale be subject to court approval unless the parties agree. The plaintiff submits that the net proceeds of sale should be divided into two shares, one share for each party. The plaintiff further submits that from the respondents share she should be paid one-half of the value of the deposits that formed part of the estate, which the respondent has failed to pay over to her. She also asks that she receive her costs of the application and costs in connection with the sale process.

[10]        The defendant submits that the application ought to be determined in accordance with the provisions of the Partition of Property Act, R.S.B.C. 1996, c. 347 [PPA] and refers to s. 6 of that Act, which reads:

6          In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.

[11]        The defendant submits that there are good reasons why the property should not be sold, namely:

(a)       The history of ownership of the property militates against sale; and

(b)       An order for sale would cause serious hardship to the respondent.

[12]        The defendant’s position, essentially, is that the parties should be declared to be tenants in common, each as to an undivided one-half interest, and that the defendant should continue to be able to occupy the house, I gather without paying any rent, until he dies or chooses to vacate the property.

[13]        The plaintiff submits that this application does not fall under the PPA and, even if it did, there are not good reasons not to sell the property.

[14]        I agree entirely with the plaintiff’s submissions. “””””’

Court Ordered Medical Examinations

Jurisdiction of Court to Order Proposed Patient to Be Medically Examined

Temoin v Temoin 2011 BCSC 1727 concerned the mental incompetency of an 87-year-old wealthy businessman and a court order sought to have him medically examined.

The businessman’s daughter commenced and incompetence proceeding stemming from her discontent with changes made by her father to his will and estate plan.

She obtained the medical opinion of a geriatric psychiatrist who diagnosed her father with a mild uncomplicated dementia.

He considered the businessman to be incompetent.

It is a requirement for an application of committee-ship under the Patient’s Property Act that there be two medical examinations and medical opinions before the court

The petitioner brought an application that her father attended two medical examinations on certain terms and conditions.

As such, she had not filed the requisite two medical affidavits attesting to her father’s incapacity to manage himself or his affairs.

The court dismissed the application but held that it did have the inherent  jurisdiction to make the order sought, but this was not a case where that jurisdiction should be exercised.

The court noted that it had been well settled law for many years that the court cannot order a medical examination under the Patient’s Property act unless two medical affidavits, stating that the proposed patient is incapable of managing himself for his affairs, because of mental infirmity, have been produced.

The court does have inherent jurisdiction, however but it can only be exercised where legislation has not “occupied the field”, and where the exercise would not conflict with the governing statute.

The court noted that there had been a legislative gap in that one medical affidavit had been produced, but there was also in addition lay evidence attesting to the proposed patient’s memory and cognitive problems.

The court was of the opinion however that the evidence was lacking and in particular, there was little evidence that he was incapable of managing his affairs, or that anyone was taking financial advantage of him.

BC Estate Lawyer- Mutual Wills Create Constructive Trust That Severed a Joint Tenancy

Mutual Wills Create Constructive Trust That Severed a Joint Tenancy

Trevor Todd and Jackson Todd have practiced estate litigation for over sixty combined years and have experience in mutual wills.


Brewster v Lenzi 2010 BCSC 1488 is an interesting decision involving mutual wills between a husband and wife, that ended with their joint tenancy ownership being severed.

Mutual wills cases are somewhat unusual in that the overwhelming number of the wills made between spouses are commonly referred to as ” mirror wills”.

Mutual wills on the other hand, typically involve a written contract between the parties, separate from their will, that is mutually agreed to govern the ultimate disposition of certain property.

This case is a dispute between a widow and her stepdaughter regarding the daughter’s constructive trust claim against the one half interest in the matrimonial home of the widow and her deceased husband.

The husband and wife were married for the 2nd time each in 1988.

In 1992 will they each contributed an equal sum of money to purchase a condominium, which they registered as joint tenants.

Each partie’s will stated that should the other die 1st, then the survivor would transfer one half of the contents of the house effects, and the deceased’s one half interest in the matrimonial home to their respective beneficiaries, but not the other , for their own use absolutely.

After her father died, the wife refused to transfer his one half interest in the matrimonial home to the daughter of the deceased.

The daughter sought a declaration that the wife owned 1/2 of the condominium property in trust for her, and the court agreed.

The court held that the evidence clearly established a common intention between the parties, and their mutual agreement as to the ultimate disposition of the property, that was meant to be irrevocable and binding upon each of them.

The court concluded that the property was intended to be held in trust by the surviving joint tenant, and to be dealt with only in accordance with the terms of the agreement.

Mutual clauses in their wills governed the disposition of the condominium property.

The intended disposition was clear and established that when they executed their wills in 1992, the husband and wife had the common intention that the one half interest in the condominium owned by the husband, was to be transferred to his daughter upon his death.

The husband imposed a certain an obligation upon the wife to so transfer his interest and she agreed to accept and carry out that obligation.

That agreement was irrevocable and binding.

The case is particularly interesting to in that the condominium was held in joint tenancy between the husband and wife.

If the joint tenancy had not been severed during the husband’s lifetime, then the wife would have received the condominium absolutely upon her husband’s death.

The court reasoned that such the scheme agreed to between the husband and wife denies the right of survivorship, which is an essential ingredient of the joint tenancy.

The joint tenancy was thus severed and the interests of the party converted to a tenancy in common.

The severance occurred in equity, and the court made a declaration of trust in favor of the intended beneficiary.

Demented Senior’s Will Set Aside For Lack of Capacity

Demented Senior's Will Set Aside For Lack of Capacity

Maliwat v. Gagne 2009 BCSC 1447 is perhaps a typical, if there is such thing in estate litigation, case of an advanced demented senior signing a will late in life, that is subsequently overturned for lack of mental capacity.

The testator made one will in 1992 and another in 2006. He named different beneficiaries in each.

Medical, as well as laypersons evidence, showed that the testator had been suffering advanced dementia at the time 2nd will was made.

The Court found the 2nd will was void for lack of testamentary capacity.

The 1992 will was found to be the last valid testamentary document of the deceased.

It is interesting that type of medical evidence that the court requires in order to find that the deceased lacked testamentary capacity.

The testator was assessed by a geriatric psychiatrist 7 weeks after he signed the the the the the 2nd will, and reported.

  • At that time he was unable to state what year it was, when he was born, or when he was married.
  • He did not know his address.
  • He could not remember any of three objects minutes later.
  • He knew nothing of his income, his expenses, bills, his medication, or his illnesses.

The assessment was that he had severe dementia, of the type that progressed slowly and steadily.

Accordingly the court stated that because of his dementia, the testator would not have been able, at the time he signed the 2nd will, to understand the nature and extent of his property, or the effect of the testamentary provisions he was making, nor could he have been capable of forming “an orderly desire as to the disposition of his property.

As an aside, it is also interesting to note that the evidence did not disclose who prepared the 2nd will, or in what circumstances.

This in itself is very suspicious and would rebut the presumption of capacity that each testator has.