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Re Sorensen & Sorensen (1977), 90 D.L.R. (3d) 26 (Alta CA)

Facts:

Spouses divorced in 1969, together held three lots as joint tenants. Mr. and Mrs. Sorenson execute a settlement in 1971. Mrs. Sorenson is later diagnosed with cancer in 1974 and wants to sever the joint tenancy to sell part of the land to provide for her dependent son, Arthur. She does three things:
** (1) executes a trust deed that holds the three lots in trust for her son;
** (2) executes her last will and testament leaving all property to her two daughters on trust, with income to the son and residue divided between daughters upon his death,
** (3) commenced a court action to partition the lands - but passes away before the proceedings are heard.

Issue(s):

Was the joint tenancy severed?

Ratio:

The failed attempt to created an express trust severed the joint tenancy.

Analysis:

Mrs. Sorenson failed at creating an express trust. None of the other things would have been enough to sever the joint tenancy either. However, because the express trust failed, there is a presumption of advancement that arises from equity to allow the beneficial interest to go to the dependent child as an inter vivos gift. This destroys the unity of possession, since the beneficial interest flowed to the son, but not the real property title. If the trust had been successfully created, this would not have worked because she was supposed to communicate that fact to her ex-husband: not allowed to do these thing unilaterally. A successfully created trust would have succeeded to sever a joint tenancy if its creation is communicated to the other joint tenant.

Holding:

Yes, the joint tenancy was severed.


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