The 2024 British Columbia trial decision in the Markland Estate v. Benz, by Justice Lamb highlights many legal principles that Will and Estates Lawyers have talked about in our blogs. Presumption of resulting trust, joint tenancy, severing a joint tenancy and a gift with a right of survivorship. Enter any of these terms in the search bar to find more information on any of these concepts, as written by the Wills and Probate lawyer of our firm.
The facts of this interesting case are as follows. It touches on many arears of interest to Powers of Attorneys Lawyers and Estate Litigation Lawyers. Fourteen years before death, a grandmother transferred ownership of her home from herself to both she and one of her granddaughters as joint tenants. This granddaughter had been a great help to her grandmother. Joint tenancy means when one owner dies, the other surviving owner owns all of the property. That is what a right a survivorship means. But is that what the grandmother meant? It was in this case because the grandmother with good legal help twice in writing confirmed that the gift by a right of survivorship to the granddaughter is exactly what she intended.
After a series of strokes, the grandmother lost her ability to make decisions and three years before her death her son was appointed the committee (in Ontario that would be the guardian of property pursuant to The Substitute Decisions Act.) Two years later, one year before the grandmother died, the son using his court appointment moved to sever the joint tenancy. The son legally cut ownership of the home in half. There was no more right of survivorship. When the grandmother died one year later, the granddaughter would only keep her half of the house. She would not “inherit” the other half of the house by right of survivorship. Did the son have the power to do this?
What does a guardian of property or alternately an attorney using a Power of Attorney have the power to do independent of the now incompetent grandmother’s wishes. The answer in British Columbia was no, and here in Ontario again no. The Substitute Decisions Act of Ontario section 32 sets out that the guiding principals of an attorney or guardian it is to act diligently, honestly, with integrity and in good faith for the incapable person’s benefit. Paramount is determining what is in that incapable person’s best interest. The guardian is required to exercise the diligence and skill that a person of ordinary prudence would exercise in the conduct of his own affairs. They are entitled to liquidate assets for the benefit of the incapable person. They may even liquidate assets, if necessary, if it was contrary to the incapable person’s Will. But it does not give the guardian or attorney the power to change an incapable person’s Will or to write a Will. Those decisions had clearly been made by the grandmother and the son was overstepping his authority. The court reversed the severance of the joint tenancy by the son, and the granddaughter as had been planned all along by the grandmother, received all of the grandmother’s home upon her death.
The deciding factor in this case is the fact that the grandmother not only added the daughter’s name to the title to her home, but it was done properly. That is where the services of a competent lawyers in Brampton for Wills is critical.
