Agricultural Law Netletter - Sunday, January 21, 2018

HIGHLIGHTS

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A Justice of the Alberta Court of Queen's Bench has concluded that when a parent gives an adult child a joint interest in land which is intended by the parent to be a gift, the gift may include a "irrevocable" right of survivorship, such that the parent cannot later change their mind and prevent the child from receiving the parent's interest in the property if the parent dies first, by taking legal steps to "sever" the joint tenancy. In this case, a stepfather acting on his own behalf and as attorney for an incapacitated mother, attempted to sever a joint tenancy of the two parents and their daughter in a quarter section of farmland after a Court in an earlier case had upheld the daughter's claim by ruling that the mother and the stepfather had intended to make a gift to the daughter when they transferred a joint interest in the property to her.

The decision contains an in-depth discussion of the law concerning joint tenancies and the right of survivorship. [Editor's note: The decision, and the previous Court decision between the parties, illustrates the dangers of using joint tenancy as an Estate planning device.]. (Pohl v. Midtal, CALN/2018- 003, [2017] A.J. No. 1238, Alberta Court of Queen's Bench)

NEW CASE LAW

Pohl v. Midtal;

CALN/2018-003,

Full text: [2017] A.J. No. 1238;

2017 ABQB 711,

Alberta Court of Queen's Bench,

R. Khullar J.,

November 20, 2017.

Joint Tenancy -- Transfer of Farmland by Parents to Adult Children -- Whether the

Transfer includes an Irrevocable Gift of a Right of Survivorship.

Melva Pohl ("Melva") and the Litigation Representatives for James and Vivian Midtal (the "Midtals") applied to the Alberta Court of Queen's Bench based on an Agreed Statement of Facts to determine the issue of whether or not the Midtals were entitled to severe a joint tenancy with respect to lands held as joint tenants by the Midtals and Melva.

Vivian Midtal had 5 children when her first husband died. She married Gordon Midtal in 1974. Melva was Vivian's eldest child. She and her husband were the only members of Vivian's family who farmed.

In June, 2004, Gordon and Vivian added Melva as a joint owner to the title of their home quarter (the "Home Quarter"). Vivian made a Will at the same time which left nothing to Melva.

Gordon made a Will in 2010 which left nothing to Melva, but which indicated he had already provided for her.

In August of 2007, Gordon became Vivian's attorney because Vivian's mental health was deteriorating.

With...