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Tuesday, August 15, 2017

Joint property cannot be clawed back to satisfy deceased's debt

I recently came across an article by Toronto lawyer Suzana Popovic-Montag that talks about what happens to joint property owned by a deceased person whose estate does not have enough funds to pay all debts. This is something that many executors must deal with, and it certainly is of interest to spouses everywhere.

The article is about the case in which a husband and wife in Ontario jointly owned their matrimonial home. The husband died and due to the fact that the estate could not pay the man's debts, the estate went into bankruptcy. The creditors attempted to have the house clawed back into the estate to pay the debts. The debts in question were not debts against the house (e.g. a mortgage or a secured line of credit). The went to court and the judge decided that the house could not be clawed back. To read the article with more detail about this, click here. The case itself is called Re Cameron and can be read by clicking here.

The gist of the decision is that the court considered that upon the death of a joint owner, there was no "transfer" of the house to the surviving owner. It was rather that the deceased person's ownership was simply extinguished, leaving one owner already on title.

This should be comforting news to anyone out there who is worried about losing his or her home due to their spouse's insufficient estate.

Monday, August 14, 2017

Does a man in possession of deeds necessarily own the property?

Well, you readers never let me get  bored, that's for sure. Here's an interesting question I received recently. I know that lots of people like to take care of legal transactions on their own to save money on legal fees, but this is taking it to extremes!

"My husband's uncle passed away with no will but gave all deeds and belongings to a stranger . My husband befriended this stranger and received all deeds from him. The letter given to him by my husband's uncle was not passed over to my husband. This man decided not to claim the land. This uncle who has passed has a surviving sister & brother in their late years. My husband feels because the deeds were given to him he has the right to claim all land because of the deeds. I disagree but wish to have an expert opinion on this legal issue."

This is one of the oddest questions I've ever had on this blog. I have never before seen people passing around land deeds as if they were no more than trading cards.

Your husband's uncle was entitled to give away his personal possessions as he did. However, it takes a bit more formal paperwork to transfer real estate. Currently the land belongs to whoever's name is on the title. The fact that someone else physically has the deed in his or her possession does not in any way give that person ownership of the land. Having your hands on the deed means nothing. Ownership of land comes with legal rights which are not extinguished by simply giving someone the deed. In addition, all transactions regarding land must be in writing.

It's possible that the "letter" you refer to might contain the right information, signatures, etc to qualify as a transfer of land, or perhaps an offer to transfer land. If it's just a letter from one guy to another, I doubt it, but I haven't seen it so I have to admit it's a possibility.

Based on what you have said here, I don't think "the stranger" ever owned the property in question. You said he decided not to claim the land, which I believe means he didn't register anything at the land registry to put the title into his name. Even if your husband had the letter you mentioned, I don't see how that would help anyone since the letter didn't mention your husband, and you haven't said anything about any documents transferring the property to your husband.

I do not believe your husband has any rights whatsoever based on the paperwork he has. If he really does think he has some claim to the land, I suggest that he take the paperwork to a lawyer for a review and discussion. If he cannot prove that the land was transferred to hiim, it should legally be divided among the uncle's siblings. I'm guessing that nobody has come forward to act as the administrator of the estate, but someone should do that and take control of this land situation.




2017 Best Legal Blog Contest - nominate your favourite legal blog (and yes, I hope it's mine)

If you like reading this blog, why not nominate it for the 2017 Best Legal Blog Contest? Apparently the contest works so that the more nominations a blog gets, the more likely it will be included in the short list for public voting. Click here to see more and to nominate. Pretty sure this one would be in the "niche" category. I only saw one Canadian blog in the winners' list from last year; all the rest were American. Let's show them how great Canadian law blogs can be!

Friday, August 11, 2017

Butler Wills and Estates rated #1 estate planning firm in St. John's

I'm pleased and proud to announce that we've been rated the #1 estate planning law firm in St. John's for the second time! Not bad for a business that has only been open for two years. We opened this office with the goal of providing the best service and information we can at reasonable prices. It feels good to know that we're providing what people want.  Click here to see the three top rated firms.

Thursday, August 10, 2017

Newest episode of The Law Show explains and explores words and phrases you've seen in wills

Another great episode of The Law Show is now online on www.vocm.com for you to listen. This week we are talking about words and phrases used in estate planning and estate administration. We started with some easy definitions, then got into ideas such as how encroachments should work, what you can do with trusts, what a codicil should say, and other practical tips. Click here to listen online. Scroll down to the episode you want (newest on are on the top). And as always, feedback and ideas are welcome.

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